High court skeptical on claims of Maine smokers’ deception

Posted Oct. 06, 2008, at 9:48 p.m.
Last modified March 20, 2011, at 6:18 a.m.

WASHINGTON — The Supreme Court returned to the stage Monday as justices weighed whether state laws can be used to challenge deceptive cigarette advertising in a case from Maine.

Against the backdrop of a presidential campaign, the court opened its 2008-09 term with a case crucial to business and consumer advocates alike. Multiple justices sounded skeptical about the efforts by three Maine smokers to challenge the parent company of Philip Morris under state law.

“I have difficulty in accepting your position in this entire case,” Associate Justice Anthony Kennedy told the attorney for the smokers.

As the high court opened its business on the traditional first Monday of October, the first cases it considered were two filed three years ago in U.S. District Court in Maine. The cigarette case was filed in Bangor. The other case, filed in Portland, questions whether a labor union’s use of fees paid by nonunion employees to finance the organization’s court battles in other states is constitutional.

The court heard the cigarette advertising arguments while outside anti-abortion demonstrators rallied. Justices let stand without comment a lower court’s decision ordering Arizona to issue “choose life” license plates to those who want them.

The “choose life” decision underscored the aging court’s political importance to both presidential candidates, either of whom is likely to tip the court’s balance by appointing new justices. The business case heard Monday, on the other hand, epitomized the court’s more prosaic but commercially important work.

The issue in Altria Group v. Good is pre-emption: whether a federal cigarette-labeling law blocks state lawsuits charging deceptive practices. The stakes are high, and not just for an industry that spends upwards of $15 billion annually on advertising. Big business, in general, prefers dealing with one uniform law instead of 50 different state laws.

“If you’re going to conduct a national advertising campaign, you can’t do it based on what a jury might decide in Des Moines compared to what a jury might decide in Atlanta,” former Solicitor General Theodore Olson told the court.

Olson represents the Altria Group, the parent company of Philip Morris. Stephanie Good, a Bangor resident who reports smoking one pack of Marlboro Lights every two or three days, joined two others in suing Altria under a state law that prohibits “deceptive acts or practices.” The smokers contend Marlboro Lights advertising tricked consumers into thinking “low tar and nicotine” cigarettes are less harmful than conventional cigarettes.

The Maine residents say the tobacco company knew smokers would compensate for the low tar and nicotine by drawing more deeply on the “light” cigarettes and thereby inhale a full complement of the dangerous and addictive chemicals.

“The Maine statute is not targeted at cigarette smoking,” attorney David Frederick told the court. “It’s targeted at deception.”

This is the crucial distinction. The federal Cigarette Labeling and Advertising Act explicitly precludes states from imposing any advertising requirements “based on smoking or health.” Frederick was trying to convince the court that the smokers’ lawsuit had everything to do with false advertising and nothing to do with health.

Chief Justice John Roberts and associate justices Antonin Scalia and Samuel Alito all joined in pressing Frederick hard. Even Associate Justice David Souter, not always a Roberts ally, was skeptical.

“Ultimately, you are proving a point that depends on the relationship between smoking and health,” Souter said in what could be a fatal blow for the Maine smokers’ case.

More than 45 states are backing Maine, whose attorney general, G. Steven Rowe, wrote the friend of the court brief submitted on those states’ behalf. These states, which notably exclude tobacco-growing North Carolina and Virginia, stress in a legal brief that they have a “vital interest in preserving their power to regulate businesses to protect consumers from unfair and deceptive practices.”

But many businesses hope the court will use Altria Group v. Good to further pre-empt challenges under state law. Under Roberts, the court has previously proven sympathetic to similar pro-business pre-emption arguments. In February, for instance, the court in Riegel v. Medtronic concluded that a federal statute blocked state lawsuits over certain medical devices.

“A general common-law duty [not to deceive] can be pre-empted by a specific statute,” Roberts noted pointedly Monday.

Bangor lawyer Samuel Lanham, who filed the cigarette case, did not argue it before the justices but did attend the session.

“Every [lawyer] dreams of going to the Supreme Court,” he said in a telephone interview Monday afternoon. “What stood out today was the fact that this was the opening case of the court’s October term, so there’s an excitement level you wouldn’t find otherwise. The press was covering it, and the courtroom was packed.”

Lanham said that former Associate Justice Sandra Day O’Connor attended the arguments.

Lanham declined to forecast how the court would rule on the case.

BDN reporter Judy Harrison contributed to this report.

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