Marketers of "light" cigarettes may be sued, the court ruled.
Jump to full article: New York Times, 2008-12-16
Author: ADAM LIPTAK
Intro: Tobacco companies that marketed "light" cigarettes may be sued for fraud, the Supreme Court ruled on Monday in a 5-to-4 decision that will bolster dozens of lawsuits claiming billions of dollars in damages. . . .
Sixteen years ago, in a decision that produced no majority opinion, a four-justice plurality said the phrase "based on smoking and health" in the labeling law did not apply to pre-empt suits under state laws based on the "general duty not to make fraudulent statements." Justice John Paul Stevens, joined by three justices no longer on the court, wrote the plurality opinion in the case, Cipollone v. Liggett Group Inc. He conceded that the distinction he drew lacked "theoretical elegance."
Indeed, the lower courts have struggled to make sense of that fractured decision. At the argument of the Altria case in October, its lawyer, Theodore B. Olson, called the plurality opinion in Cipollone "baffling, confusing, litigation-generating."
Justice Stevens asked Mr. Olson whether the court would need to "reject the fraud analysis in Cipollone" for Altria to win. Mr. Olson said yes.
But Justice Stevens, writing for the majority on Monday, instead reaffirmed his plurality opinion in Cipollone and turned it into binding law. . . .
"It seems particularly inappropriate," Justice Stevens wrote, "to read a policy of authorization into the F.T.C's inaction" given tobacco companies' failure to tell the commission about studies concerning how "consumers of 'light' cigarettes actually inhale." . . .
Justice Thomas said that some kinds of fraud claims against cigarette makers may go forward, just not those concerning "smoking and health."
"Thus," he wrote, "if cigarette manufacturers were to falsely advertise their products as 'American-made' or 'the official cigarette of Major League Baseball,' state-law claims arising from that wrongful behavior would not be pre-empted."
Forbidding lawsuits based on health claims, Justice Thomas said, would not mean consumers lack protection, as tobacco marketing is subject to regulatory oversight.
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