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• HOLMES v. PHILIP MORRIS 

The plaintiff, Connie J. Holmes, on behalf of herself and others similarly situated, filed a class action complaint alleging that the defendant, Philip Morris USA Inc., violated the Delaware Consumer Fraud Act (“DCFA”), 6 Del. C. §§ 2511-2527, by using the descriptors “lights” and “lowered tar and nicotine” in the advertising and packaging of Marlboro Lights cigarettes. The defendant has moved for summary judgment. . . .

The defendant claims that the descriptors “light” and “lowered tar and nicotine” are short hand references which were based upon measurements produced by the Cambridge Filter Method (“FTC Method”).2 The defendant contends that the use of the descriptors was developed and encouraged by the Federal Trade Commission (“FTC”). It further contends that the use of the descriptors is a merchandising practice which is exempt from the DCFA pursuant to 6 Del. C. § 2513(b)(2).3 . . .

I conclude that the factual findings recited in U.S. v. Philip Morris USA Inc.29 seem utterly in conflict with any contention that, as a matter of law, the defendant’s merchandising practice complied with a statute administered by the FTC.30 In addition, Good and Aspinall lead to the conclusion that there is at least a question of fact which precludes summary judgment for the defendant. . . .

I do, however, agree with the defendant that Good is not controlling, because it is a preemption case and did not consider the Delaware statute. Despite these distinguishing characteristics, the Supreme Court’s comments on the history of the interactions between the FTC and the cigarette industry, and the inferences drawn from that history, are relevant to the defendant’s motion.

Based on the foregoing, the defendant’s Motion for Summary Judgment is denied. . . .

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