http://www.tobacco.org/newsfeed/lawsuit/good.rss Latest top tobacco news headlines en-us http://www.scotusblog.com/wp/a-second-blow-to-tobacco-appeal/ http://tobacco.org/news/268485.html In the pending Altria Group appeal in the Supreme Court, the “Cambridge Filter Method” — or “FTC Test” — is directly at issue. The company argues that FTC policy actually requires tobacco companies to disclose tar and nicotine yields based on the test, and that the FTC has authorized the companies to advertise cigarettes by using words such as “light” as short-hand ways of referring to the test results. Because of these FTC “mandates,” as the company calls them, federal policy on cigarette marketing of “light” cigarettes bars states from allowing lawsuits in their courts challenging the use of such words or phrases, the appeal contends. . . . In the federal brief filed last month, the U.S. Solicitor General’s office in the Justice Department, joined by the FTC, directly disputed the tobacco company’s claim that its ads on “light” cigarettes were the result of FTC “mandates.” The Commission’s policy, in 1966 and since, has never required the companies to use ads that refer to the yields from the FTC Test, and has not authorized them to use “light” or other descriptive phrases as short-hand indications of the Test’s results. The company’s claim that state court lawsuits are preempted by FTC policy, the brief said, “should be rejected because it is based on a mischaracterization of the scope and effect of FTC’s actions concerning cigarette advertising.” . . . The FTC, the brief added, does not view state court lawsits like the one in Maine “as undermining the FTC’s policies in any way. . . . The Solicitor General’s office on Tuesday notified the Court, by letter, of the FTC’s new proposal to drop its 1966 policy. Attached to the letter was the Commission’s Federal Register notice of its plan. The tobacco company has gained added time, until Aug. 11, to file its reply brief; that will provide a chance to challenge not only the government brief, but also the impact, if any, of the FTC’s new approach. SCOTUSBlog scotusblog.feedback@gmail.com (Lyle Denniston ) Wed, 09 Jul 2008 04:00:00 GMT http://www.supremecourtus.gov/oral_arguments/argument_calendars/MonthlyArgumentCalOctober2008.pdf http://tobacco.org/news/267479.html Court convenes at 10 a.m.; . . . Monday, October 6 (1) 07-562 ALTRIA GROUP, INC. V. GOOD Supreme Court of the United States Mon, 23 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuConLawAdminLawScholars.pdf http://tobacco.org/news/267478.html Current constitutional doctrine affords Congress broad authority to preempt state law. If meaningful balance in our federal system is to be preserved, the courts must not overread the preemptive scope of the legislation that Congress enacts. It is for Congress, not the federal courts, to expand the preemptive force of federal regulation into areas of health and safety regulation that have long been subjects of state authority. And courts must be particularly careful not to accord preemptive force to action by federal agencies-which elude both the political and procedural safeguards of federalismexcept when such agencies are either interpreting Congress's statutes or acting within clear delegations of authority to act with the force of law. In this case, these principles require Respondents' state law claims to go forward. ABA Journal Mon, 23 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuMDConsumerRightsCoalition.pdf http://tobacco.org/news/267477.html 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. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuTCLCAARPPubJustice.pdf http://tobacco.org/news/267476.html SUMMARY OF ARGUMENT Amici file this brief to emphasize a point that may not stand out in respondents’ more comprehensive treatment of the issues before the Court — namely, that there is no hint in either the Labeling Act or in the FTC’s on-again, off-again actions regarding disclosure of cigarettes’ tar and nicotine content that Congress or the FTC intended to “insulate [cigarette] manufacturers from longstanding rules governing fraud.” Cipollone, 505 U.S. at 528-29. Make no mistake, this case is about fraud. As the United States argued in its civil racketeering action against Philip Morris and other cigarette companies, “marketing of ‘light’ cigarettes is a principal weapon in their attempts to mislead the public regarding the health risks of smoking.” Brief for the United States in United States v. Philip Morris, et al., No. 06-5267, et al., at 146 (D.C. Cir. filed Nov. 19, 2007). The question in this case is whether petitioners are shielded from state anti-fraud litigation because Congress or the FTC preempted fraud claims arising from statements made to deceive smokers that “light” cigarettes are less deadly than regular cigarettes. The answer to that question is “no.” To be sure, this Court in Cipollone held that the Labeling Act preempts state law claims that would require cigarette companies to add or modify the warnings prescribed by Congress. But Cipollone also held that the Labeling Act does not preempt claims arising from false statements made in advertising, press statements, government submissions and other channels of communication, where the claim is based on the duty not to deceive. 505 U.S. at 528, 529 (plurality). Thus, allegations that a cigarette company deliberately misrepresented and concealed material facts in violation of a state anti-fraud statute — the precise allegations at issue here — are not preempted. Id. As the plurality saw it, Congress did not intend the Labeling Act “to insulate cigarette manufacturers from longstanding rules governing fraud.” Id. Such claims are not predicated on a duty “based on smoking and health,” but on a general duty imposed by state law — i.e., the duty not to deceive. Id. at 528-89. Petitioners’ theory should be rejected because it would, contrary to Congress’ intent, effectively insulate cigarette manufacturers from rules governing fraud, no matter how egregious the manufacturers’ false statements or fraudulent concealment. Equally insubstantial is petitioners’ argument that the FTC “authorized” tobacco companies to use “Light” as a product descriptor (Marlboro Lights), and that permitting respondents’ claims to go forward “would impede the FTC’s low-tar policy.” Br. at 46. The signal defect in petitioners’ argument is that the FTC itself disclaims the existence of any authorization or policy, let alone a policy that justifies ousting longstanding state anti-fraud laws. Even Philip Morris has acknowledged elsewhere that there is no such policy. In 2002, Philip Morris filed a petition with the FTC urging the agency “to promulgate rules governing . . . the use of descriptors such as ‘light’ and ‘ultra light.’” See Good, 501 F.3d at 56 n.29. Philip Morris’ petition, of course, would have been superfluous had the FTC previously “authorized” the use of these descriptors. Just as fundamentally, the hodge-podge of FTC actions cited by the Philip Morris as evidence of a federal policy on light cigarettes could not have the sweeping preemptive effect it claims. Because the FTC’s mission of protecting consumers against unfair and deceptive advertising practice overlaps with state law, Congress established regulatory procedures for the FTC to follow when it intends to take preemptive action. See, e.g., American Financial Servs. Ass’n v. FTC, 767 F.2d 957, 989-90 (D.C. Cir. 1985). The FTC did not avail itself of those procedures here, which further confirms the FTC’s position that it did not act to preempt state law. For these reasons as well, petitioners’ implied preemption argument should be rejected. The Labeling 4 Act’s preemption provision states that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” 15 U.S.C. § 1334(b). Those provisions require that packages of cigarettes and their advertisements bear one of a rotating series of warnings about the adverse health effects of smoking. Id. § 1333(a), (c). The Act also provides that no additional “statement relating to smoking and health . . . shall be required on any cigarette package.” Id. § 1334(a). ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCu48States.pdf http://tobacco.org/news/267464.html QUESTIONS PRESENTED 1. Whether the Federal Cigarette Labeling and Advertising Act expressly preempts state-law claims that a cigarette company violated the Maine Unfair Trade Practices Act by falsely representing its “light” cigarettes to the public when the predicate state-law duty of such claims is the duty not to deceive. 2. Whether such claims are impliedly preempted where the FTC has never exercised its rulemaking power to address the conduct at issue nor defined the terms at issue in this dispute. . . . SUMMARY OF ARGUMENT This case presents the questions whether the FCLAA or the actions of the FTC preempt state-law deception claims arising out of Petitioners’ practices with respect to “low tar and nicotine” and “light” cigarettes. Neither the FCLAA nor the actions of the FTC license Petitioners to deceive consumers in violation of state law. Immunizing Petitioners from the consequences of the alleged wrongful conduct is not a result that should be presumed without clear language and intent, neither of which is present here. 1. In Cipollone v. Liggett, 505 U.S. 504 (1992), the Court held that the FCLAA does not preempt claims resting upon false representation of a material fact or concealment of a material fact by tobacco companies where such claims are founded upon a general duty under state law not to deceive. The suit at issue here brings precisely such claims. It seeks economic, not personal injury, damages, under Maine’s general prohibition against any “material representation, omission, act or practice that is likely to mislead consumers acting reasonably under the circumstances.” Me. Rev. Stat. Ann. tit. 5, § 207 (Supp. 2007). Because the lawsuit before the Court is predicated upon a general statutory prohibition against deception (that the manufacturers made false statements and concealed information regarding “light” cigarettes), under Cipollone it is not preempted. To find otherwise would disrupt and do serious harm to the sovereigns’ complementary efforts to protect consumers, which would have adverse implications beyond the “light” cigarettes dispute before the Court here. State law suits pursuant to state unfair practices and consumer protection statutes combating deceptive practices are a critical complement to the administrative and prosecutorial efforts of the FTC. In fact, recognizing that it cannot combat consumer fraud on its own, FTC regulations direct the agency “to assist and cooperate” with state consumer protection efforts. One common outgrowth of that cooperation is that the FTC and the States often target the same wrongdoers, which sometimes results in separate settlements that provide different forms of relief. There is no exception in this complementary regulatory scheme for fraud or deception by cigarette manufacturers. Indeed, the FTC acknowledges the States’ vital part in prohibiting deception by tobacco companies. 2. Petitioners’ arguments that the FTC has somehow impliedly preempted the state-law claims are patently incorrect. Nothing in the text, structure, or regulatory history of the FTC Act or in the actions of the FTC relating to “light” cigarettes supports implied preemption. Petitioners are not claiming that the FTC Act itself imposes requirements on tobacco companies that conflict with state law. Nor could they, given that the FTC Act lacks an express preemption provision and instead contains a broad saving clause protecting state remedies and causes of action. In addition, Congress imposed heightened requirements for FTC rulemaking, and the FTC’s procedural rules require that it explain the impact of any of its rules on state law. And petitioners do not assert that the FTC has promulgated specific rules that preempt state-law actions with respect to “low tar” and “light” cigarettes. Rather, Petitioners’ implied preemption claim is based on their assertion that the FTC has blessed tobacco companies’ “light” cigarette advertisements through a history of less formal actions, such as consent decrees reached with individual companies. But neither the consent decrees nor the other actions relied upon by Petitioners mandated or approved Petitioners’ “light” and “low tar” advertisements. Moreover, in none of those actions did the FTC ever suggest that State consumer protection laws present an obstacle to, or are preempted by, some sort of FTC policy. Indeed, the FTC has eschewed any suggestion that its actions have resolved the issue of tobacco companies’ deceptive practices regarding “low tar” cigarettes. . . . * * * The common purpose of the FTC Act and State unfair trade practices and consumer protection acts, such as Maine’s, is to protect consumers from deceptive practices. The FTC has been most sensitive to this relationship, as have the courts. Finding preemption here would run counter to how the FTC and the States have worked cooperatively together, and would do serious harm to that relationship and to the protections afforded consumers through their efforts. The particular claims of deception here fall squarely within those permitted under Cipollone, and the FTC has not established a cohesive policy impliedly preempting the States with respect to deceitful conduct by tobacco companies regarding “low tar” and “light” cigarettes. For these reasons, the Court should find that the state-law claims before it are not preempted. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCu5Profs.pdf http://tobacco.org/news/267463.html CONCLUSION Philip Morris voluntarily markets Cambridge Light cigarettes and Marlboro Lights as “light” or “lowered in tar and nicotine” without FTC control or direction. Thus, Respondents’ claims are not impliedly preempted. For these reasons, and because Respondents’ claims are not expressly preempted under the FCLAA, as discussed in Respondents’ brief, this Court should affirm the First Circuit’s decision. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuFmrFTCCommissioners.pdf http://tobacco.org/news/267462.html CONCLUSION The FTC’s primary mission as a law enforcement agency is to enforce the FTC Act’s Section 5 prohibition against unfair or deceptive conduct in commerce, rather than to give broad immunity to an industry from state police power. See 15 U.S.C. § 45(a)(2) (“The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations … from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.”); Fleming v. FTC, 670 F.2d 311, 313 (D.C. Cir. 1982) (Commission’s mandate is “to ferret out any unfair competition and unfair or deceptive trade acts or practices in or affecting commerce” ). Nothing in the FTC’s regulatory history suggests an intent to authorize, encourage, or immunize Petitioners’ use of lights descriptors. The judgment of the court of appeals should be affirmed. ABA Journal Wed, 18 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_RespondentAmCuUSA.pdf http://tobacco.org/news/267460.html BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING RESPONDENTS WILLIAM BLUMENTHAL General Counsel Federal Trade Commission Washington, D.C. 20580 GREGORY G. GARRE Acting Solicitor General Counsel of Record EDWIN S. KNEEDLER Deputy Solicitor General MICHAEL F. HERTZ Deputy Assistant Attorney General DOUGLAS HALLWARD-DRIEMEIER Assistant to the Solicitor General MARK B. STERN ALISA B. KLEIN Attorneys Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 (I) QUESTION PRESENTED The Federal Trade Commission has authority to prevent “unfair or deceptive acts or practices in or affecting commerce,” 15 U.S.C. 45(a)(2), and the Federal Trade Commission Act expressly provides that its remedies “are in addition to, and not in lieu of, any other remedy or right of action provided by State or Federal law,” 15 U.S.C. 57b(e). The United States will address the following question: Whether guidance statements and consent orders issued by the Federal Trade Commission impliedly preempt a state-law tort claim based on a cigarette manufacturer’s allegedly fraudulent use of the descriptors “Light” and “Lowered Tar and Nicotine” to characterize its cigarettes when the manufacturer allegedly knew that the cigarettes, as smoked by a human smoker, would deliver as much tar and nicotine as so-called “full flavor” cigarettes. . . . 3. Petitioner failed for decades to disclose to the FTC its internal research indicating that, due to compensatory behaviors, smokers receive as much tar from cigarettes with lower Cambridge Method ratings than so-called “full-flavor” cigarettes. After hiding its own research for years, despite the Commission’s requests for information in light of growing concerns about compensation, petitioner now claims that the FTC has known about compensation for years and affirmatively decided that it does not warrant any change in the Cambridge Method. In fact, the absence of definitive action on that question to date reflects only the Commission’s ongoing consideration of the issue. Its inaction (particularly insofar as it is based on petitioner’s own failure to provide information to the FTC) does not constitute even a definitive interpretation of the federal Act, much less one that would bar application of state law. ARGUMENT RESPONDENTS’ CLAIMS ARE NOT IMPLIEDLY PREEMPTED BY THE FEDERAL TRADE COMMISSION’S ACTIONS CONCERNING CIGARETTE ADVERTISING ABA Journal Mon, 23 Jun 2008 04:00:00 GMT http://online.wsj.com/article/SB121417791175695515.html?mod=rss_whats_news_us http://tobacco.org/news/267459.html The Federal Trade Commission is asking the Supreme Court to reject an Altria Group Inc. argument that only that agency can regulate cigarette advertising, saying such an interpretation mischaracterizes the FTC's "scope and effect" on the issue. The tobacco industry is trying to head off a wave of state-based challenges regarding the cigarettes, even as it appeals a federal judge's order to stop marketing cigarettes as "low tar," "light," "ultralight" or "mild" because they mislead consumers. . . . In its amicus brief, the FTC said nothing Altria is arguing regarding cigarette marketing "pre-empts state lawsuits such as this." The suit alleges cigarettes deemed "light" with lower tar and nicotine content than other cigarette products by their makers were being deceptive. The FTC also noted that given the breadth of its responsibilities, the commission alone shouldn't be responsible for "policing the cigarette industry's marketing practices." Unlike the Food and Drug Administration, which has a mandate to evaluate medical devices for safety, the FTC said it doesn't have the resources to oversee all relevant practices of the cigarette industry. The commission further added that it is "a law enforcement agency composed of attorneys and economists, not a scientific body." The Wall Street Journal Interactive Edition Mon, 23 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_ReversalAmCuNAM.pdf http://tobacco.org/news/267414.html SUMMARY OF ARGUMENT The authority vested in the Federal Trade Commission and the extensive exercise of that authority in this industry preempt the state law deceptive trade practices claims before the Court. Federal agencies have the power to preempt state law by a variety of means; no formally promulgated rule is required. As a state law tort claim cannot survive federal preemption where it frustrates the purposes and objectives of federal law, the enforcement of state law deceptive trade practices statutes must yield not only to federal statutes and formally promulgated regulations, but also to less formal regulatory guidance, such as policy statements, enforcement actions, and consent orders, where the application of those state statutes would conflict with such regulatory guidance. Were it otherwise, federal objectives would be subordinated to varying and competing state interests—precisely the result that the Supremacy Clause should prevent. Born of a national mandate and the product of a singular moment in the regulatory history of our nation, the Federal Trade Commission (“FTC” or “Commission”) was created to provide prospective guidance to businesses in any number of ways. FTC guidance beyond that set forth in formally promulgated rules thus is of exceptionally strong preemptive force. In passing the Federal Trade Commission Act of 1914, 15 U.S.C. § 41, et seq. (“FTC Act”), Congress assembled a federal body of experts that would have the flexibility to provide prospective guidance to American businesses. Congress amended the FTC Act in 1938 to empower the FTC to forestall deceptive acts and practices, and again in 1975 to increase its enforcement authority while simultaneously imposing more demanding rulemaking procedures than those applicable to other federal agencies under the Administrative Procedures Act, 5 U.S.C. § 551, et seq. (“APA”). Despite making the procedures for promulgating trade regulation rules more burdensome to the FTC, Congress, at the same time, expressly preserved the authority of the FTC to provide regulatory guidance on deception in the marketplace other than by way of formal rule. Empowered with the express statutory authority to issue guidance on what is (and what is not) deceptive, the Commission has defined the meaning of deception under the FTC Act not in a formally promulgated rule, but, rather, in a policy statement. Given the FTC’s historical mandate and statutory authority, the preemptive effect of FTC regulation does not depend upon the form that the regulation takes. The Labeling Act, 15 U.S.C. § 1331, et seq., at once reflects a desire to subject this industry to a single, uniform set of federal standards in order to provide consistency in the marketplace and leaves the FTC with the authority to further that goal. As contemplated by the Act, the FTC provides the expertise to ensure that the purposes and objectives of the Act are fulfilled. In keeping with its crucial role as an expert and advisory body in the area of advertising and labeling, the FTC has guided this industry and maintained uniformity and consistency through a variety of means. Taken together, the Labeling Act and FTC regulation preempt state law causes of action that would intrude upon the FTC’s ability to police this industry as it sees fit. Allowing the state law claims pressed here to countermand the FTC’s guidance would place in the hands of generalist judges and jurors what Congress has intended be placed within the hands of an expert federal agency. The Commission’s focus has been trained on this industry continually since the early days of its existence, and it has accepted that which is challenged here. The substance and the manner of the Commission’s regulation of this industry cannot lightly be set aside. While the national interests at stake are substantial, the parochial interests advanced are modest. Private enforcement of the Maine Unfair Trade Practices Act, 5 ME. REV. STAT. § 205, et seq. (“MUTPA”), furthers no “traditional police power” that would save it from preemption; the act is entirely derivative of the FTC Act. Indeed, the FTC has been regulating this industry far longer than MUTPA has been in effect, as it was only enacted in 1969. The deceptive trade practices claim before the Court is not one that would supplement an otherwise consistent federal enforcement regime. Rather, it would be wholly at odds with federal law and, therefore, is far less deserving of preservation than were it otherwise. The FTC is empowered to police and punish practices that might violate its guidance; private enforcement is neither warranted, nor needed. ABA Journal Mon, 07 Apr 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_PetitionerAmCuWLF.pdf http://tobacco.org/news/267413.html The presumption against preemption is inapplicable here for the additional reason that cigarette advertising and labeling – as well as efforts to develop low-tar and nicotine cigarettes that pose a reduced health risk to smokers – have long been subject to extensive federal regulation. As Petitioners’ brief makes clear, that history of federal regulation long preceded the adoption of the Labeling Act’s current preemption provision in 1969. Pet. Br. 2-12. Given that history, there is no reason to assume that Congress, when it adopted the express preemption provision in 1969, would have been reluctant to displace state regulation of a field in which for some time federal regulation had been dominant. The Court recognized in Buckman that invocation of a presumption against preemption is inappropriate in a field already subject to extensive regulation by the federal government. 26 Buckman, 531 U.S. at 347-48. Moreover, the FTC’s extensive oversight of this field means that a finding of preemption will not leave the cigarette industry unpoliced. Furthermore, Congress has made abundantly clear – as set forth in 15 U.S.C. § 1331 – that a principal reason for adopting the Labeling Act was to ensure uniform regulation of the cigarette industry throughout the nation. A finding that Good’s claims are not preempted would threaten to undermine that goal of uniformity. Accordingly, application of a presumption against preemption makes little sense when, through its adoption of the Labeling Act, Congress has made clear a strong desire to ensure uniform regulation. Finally, a presumption against preemption is inappropriate when, as here, the state laws at issue are duties imposed under the common law. There is far less reason to presume a congressional reluctance to displace state common law (which is established on a case-bycase basis by factfinders not required, when deciding whether to impose liability in a particular case, to weigh the costs and benefits of its actions to society as a whole) than to displace state law established by state officials acting through state administrative or legislative lawmaking processes. As the Court explained in Riegel: One would think that tort law, applied by juries under a negligence or strict liability standard, is less deserving of preservation [than is state regulatory law]. A state statute, or a regulation adopted by a state agency, could at least be expected to apply cost-benefit analysis similar to that applied by the experts at the FDA: How 27 many more lives will be saved by a device which, along with its greater effectiveness, brings a greater risk of harm? A jury, on the other hand, sees only the cost of a more dangerous design, and is not concerned with its benefits; the patients who reaped those benefits are not represented in court. Riegel, 128 S. Ct. at 1008. In sum, even if the Court determines that the presumption against preemption should be preserved under some circumstances, it has no applicability here in light of the facts of this case. ABA Journal Mon, 07 Apr 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_PetitionerAmCuPLAC.pdf http://tobacco.org/news/267412.html STATEMENT OF INTEREST PLAC is a nonprofit association with more than 120 corporate members representing a broad crosssection of American and international product manufacturers. These companies seek to contribute to the improvement and reform of law in the United States and elsewhere, with emphasis on the law governing the liability of manufacturers of products. PLAC’s perspective derives from the experiences of a corporate membership that spans a diverse group of industries in various facets of the manufacturing sector. Several hundred of the leading product liability defense attorneys in the country are also sustaining (nonvoting) members of PLAC. Since 1983, PLAC has filed more than 800 briefs as amicus curiae in both state and federal courts, including at least 69 briefs in this Court, presenting the broad perspective of product manufacturers seeking fairness and balance in the application and development of the law as it affects product liability. The corporate members of PLAC are listed in the Appendix. 2 PLAC is well situated to address the issues in this case because its members often have confronted the interplay between the duties imposed by federal regulatory authorities and the standards applied in product liability cases and cases alleging statutory consumer fraud. Further, many PLAC members belong to heavily-regulated industries, and PLAC has a compelling interest in ensuring that express preemption provisions are interpreted in a way that does not frustrate the purposes of federal regulations and subject its members to conflicting requirements set by individual juries applying the laws of 50 states. . . . SUMMARY OF ARGUMENT If it were not for confusion caused by the plurality opinion in Cipollone, the analysis of the express preemption issue in this case would be straightforward and the result of that analysis plain. Under 15 U.S.C. §1334(b), claims are preempted if they impose “requirement[s] or prohibition[s],” if those requirements or prohibitions are “with respect to the advertising or promotion of any cigarettes” the packages of which are properly labeled, and if those requirements or prohibitions are “based on smoking and health.” 15 U.S.C. §1334(b). Through the mechanism of a liability award, Plaintiffs in this case seek to impose “requirements or prohibitions” on Defendants’ “advertising or promotion” of cigarettes. See, e.g., Riegel v. Medtronic, Inc., 552 U.S. ___, 128 S.Ct. 999, 1008 (2008)(liability awards generally constitute “requirements” for purposes of express preemption provisions). The requirements or prohibitions that Plaintiffs seek to impose are “based on smoking and health” because they are “intertwined with” and “motivated by” concerns about the effects of smoking on health. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 548 (2001). Therefore, Plaintiffs’ claims are expressly preempted, a result consistent with Congressional intent as expressed in the plain language of the statute. In contrast, the plurality opinion in Cipollone, as evidenced by the First Circuit and other decisions, requires a convoluted analysis that is completely untethered to the language of the statute. Not surprisingly, that analysis leaves the application of Congress’s preemption provision to each court’s subjective characterization of the plaintiffs’ claims and yields results that cannot have been intended by Congress. The plurality opinion in Cipollone is not binding on this Court, it is inconsistent with this Court’s decision in Reilly, and it should be expressly rejected in this case. ABA Journal Mon, 07 Apr 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_Respondent.pdf http://tobacco.org/news/267411.html 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. ABA Journal Wed, 11 Jun 2008 04:00:00 GMT http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-562_Petitioner.pdf http://tobacco.org/news/267410.html QUESTION PRESENTED Whether state-law challenges to FTC-authorized statements regarding tar and nicotine yields in cigarette advertising are expressly or impliedly preempted by federal law. . . . As Congress recognized when enacting the Labeling Act, the relationship between smoking and health is a matter of exceptional importance to the Nation’s public health. In order to ensure that the public receives consistent and comprehensible information about the health effects of smoking, Congress granted the FTC the authority to regulate healthrelated statements in cigarette advertising and expressly preempted the States’ overlapping authority. For more than forty years, the FTC has carried out its regulatory mandate by policing deceptive health representations in cigarette advertising, requiring the dissemination of standardized tar and nicotine information to consumers, and encouraging the development of low-tar cigarettes. Respondents’ statelaw claims directly challenge health-related cigarette advertising representations regulated by the FTC, and are preempted both because they fall squarely within the language of the Labeling Act’s express preemption provision and because they directly conflict with the FTC’s longstanding tar and nicotine policy. A contrary conclusion would not only nullify the Labeling Act’s preemption provision and the FTC’s policy judgments in this area, but would also obliterate the national regulatory uniformity necessary to ensure that consumers are able to make informed decisions about smoking-and-health issues. CONCLUSION The judgment of the court of appeals should be reversed. ABA Journal Mon, 31 Mar 2008 04:00:00 GMT