Jump to full article: ABA Journal (American Bar Association), 2008-06-11
Intro: QUESTIONS PRESENTED
1. Whether the Federal Cigarette Labeling and
Advertising Act expressly preempts state-law claims
that a cigarette company violated Maine’s generally
applicable prohibition on deceptive practices by
falsely representing its cigarettes using the descriptors
“light” and/or “lowered tar and nicotine.”
2. Whether respondents’ state-law claims based
on the fraudulent use of such descriptors are impliedly
preempted notwithstanding that the Federal
Trade Commission has never authorized, encouraged,
or required the use of such descriptors.
. . .
The D.C. Circuit’s decision in Brown & Williamson
confirms that the FTC could not have required the
companies to use the Cambridge Method. At issue
was a district court injunction requiring that Brown
& Williamson, in its marketing of light cigarettes,
“justify the advertisement of results from a different
system of testing which it considers superior to the
FTC system.” 778 F.2d at 44. The court invalidated
that provision of the injunction, reasoning that,
“[b]ecause the FTC has not adopted its system of
testing pursuant to a Trade Regulation Rule under
section 18 of the FTC Act, one cannot say that the
FTC system constitutes the only acceptable one
available for measuring milligrams of tar per cigarette.”
Respondents’ position and the decision below accord
with positions taken by the Solicitor General in
Watson: “[t]he FTC has not required [Philip Morris]
to use the Cambridge Method to determine tar and
nicotine levels or to report the results of those tests
in its advertising.” U.S. Watson Cert. Br. 9. The
Solicitor General also rejected Philip Morris’s reliance
on the 1970 voluntary agreement, stating that
it is improper to “treat[] the [cigarette] companies’ agreement as if it were the equivalent of an FTC
regulation.” Id.21
More fundamentally, even if the FTC could be understood
to have required such disclosures or use of
the Cambridge Method, that would have no bearing
on this case. Respondents allege that Philip Morris
made “[f]alse[]” claims that certain of its cigarettes
are “‘light’ and/or deliver[] lowered tar and nicotine.”
JA32a; see JA31a. Respondents challenge descriptors,
not the Cambridge Method or factual statements
of tar and nicotine yields based on that
method. Thus, Philip Morris’s implied preemption
theory misses the central claim of respondents’ case.
* * *
In Cipollone, this Court held that Congress did
not intend to preempt state-law actions for frauds
committed by cigarette companies in the marketing
of cigarettes. In asking this Court to overrule
Cipollone, Philip Morris asks for immunity from longstanding
state deceptive-practices statutes. Given
the well-documented deceptions by cigarette companies
over many decades to lull consumers into smoking
so-called “light” cigarettes notwithstanding the
health risks, and given the absence of legally binding
FTC actions that would displace state-law damages actions, respondents’ claims to recompense consumers
for the economic consequences of Philip Morris’s
fraud should be permitted to proceed.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Jump to full article » |