Jump to full article: U.S. Senate Committee on Commerce, Science, and Transportation, 2007-11-13
Author: Mr. Stephen Sheller
Intro: The principal allegation in light cigarette lawsuits is that cigarette manufacturers have
misled consumers by marketing light and low tar cigarettes as having less tar and
nicotine than other brands, even though the actual exposure levels are no different.
Those who smoked (and continue to smoke) light cigarettes, reasonably believing they
were being exposed to less tar or nicotine, are seeking court-ordered damages for their
losses. I believe that there have been about 40 lawsuits filed in 22 different states on
the light cigarette issue. Certified class actions are pending in Massachusetts,
Missouri, and New York at this time.
In fact, there is good reason to believe so called, “light, smooth, mild†cigarettes are
potentially more dangerous to ones health than “full flavor†cigarettes.
An important key to uncovering the light cigarette fraud was Monograph 13 released
by the National Cancer Institute in 2001.2 That monograph concludes that “cigarette
manufacturers recognized the inherent deception of advertising that offered cigarettes
as light [and]…as having the lowest tar and nicotine yields…†but went ahead anyway
with that advertising. Shortly after the release of the monograph, it was announced
that the FTC asked for guidance from DHHS to determine whether the FTC testing
method could be improved and a working group was to convene in 2002, but I am
unaware of any outcomes from this request for guidance.3 The FTC appears to have
gone to sleep as Rip Van Winkle did in the famous children’s story and clearly needs
congress to wake them up.
What has been happening in these lawsuits is that the cigarette companies have been
using the lack of clarity around regulation of testing accuracy and the regulatory role
of the FTC in two distinct and important ways . . .
Ultimately, this argument was defeated by the U.S.
Supreme Court on June 11 of this year in a unanimous decision5 that echoed the
conclusion of the Solicitor General that the FTC has not asserted control over the
marketing of light cigarettes.
Court Remedies
The courts in many jurisdictions either refuse to certify a class, or reverse the
certification of a class in the appellate courts, thereby sanctifying the tobacco
industry’s misconduct and allowing them to continue this misconduct as we sit
here. A solution is to consider legislation requiring that these cases be handled and
certified as class actions, to encourage attorneys to take on what would ordinarily
be a lawsuit on behalf of one individual with a very small damage claim. The
tobacco industry knows that if a lawsuit cannot go forward as a class this will be
the death knell of consumer claims. In addition, any money not claimed by
consumers that is paid as part of a class action award by the tobacco industry,
should be contributed to a cy pres fund.
This enormous fraud on the American people must stop. Federal legislation is
needed to protect consumers from the cigarette industry’s practices with their
“light†brands and defrauded consumers should have the right to be compensated
for their loss. I think that U.S. District Judge Gladys Kessler got it right when she
ruled last year that the cigarette companies were racketeers in U.S. v. Philip Morris.
About the light cigarette fraud, she said:
Even as they engaged in a campaign to market and promote filtered and low tar
cigarettes as less harmful than conventional ones, Defendants either lacked
evidence to substantiate their claims or knew them to be false.6
She goes on to say:
There is an overwhelming consensus in the public health and scientific
community, both here and abroad, that low tar cigarettes offer no health
benefit to smokers, have not reduced the risk of lung cancer and heart disease
for smokers using them, and have not produced any decrease in the incidence of lung cancer. Moreover, because of the misleading nature of the advertising
for low tar cigarettes, smokers who might have quit have refrained from doing
so in the belief that such cigarettes reduced their health risks.
Jump to full article » |