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ALTRIA v. GOOD - BRIEF OF AMICI CURIAE MARYLAND CONSUMER RIGHTS COALITION AND LEGAL RESOURCE CENTER FOR TOBACCO REGULATION, LITIGATION & ADVOCACY IN SUPPORT OF RESPONDENTS (PDF) 

SUMMARY OF ARGUMENT . . .

A plurality of this Court made clear in Cipollone v. Liggett Group, Inc. that a claim of fraud or misrepresentation premised on a cigarette manufacturer’s duty not to deceive consumers is not preempted by the Federal Cigarette Labeling and Advertising Act (“FCLAA”). Cipollone held that while some state law claims alleging deception in the advertising and promotion of cigarettes are preempted by the FCLAA, some claims are not preempted. The critical factor in determining whether a claim is preempted is the predicate duty upon which a claim is based. Causes of action that allege warning neutralization or constitute failure to warn are preempted; those that are based on the cigarette manufacturer’s duty not to deceive are not preempted. Based on the MUTPA’s imposition of a general duty to not deceive on all commercial actors in Maine, Good’s claims are not preempted by the FCLAA. To construe the FCLAA or Cipollone in any other manner would result in immunity for cigarette manufacturers to deceive consumers on matters that concern smoking and health. Given the explicit documentation of PMUSA’s deception in the advertising and promotion of its light and low tar and nicotine cigarettes, allowing Good to pursue her consumer fraud claims will result in an equitable and legally sound outcome.

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