June 25, 2018
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Smokers gain high court win in labeling case

By From staff & wire reports, Special to the BDN

WASHINGTON — In a case that originated in Bangor, Maine, the Supreme Court on Monday handed a surprising defeat to tobacco companies counting on it to put an end to lawsuits alleging deceptive marketing of “light” cigarettes.

In a 5-4 split won by the court’s liberals, it ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote “light” and “low tar” brands.

The decision was at odds with recent anti-consumer rulings that limited state regulation of business in favor of federal power.

Altria Group Inc. argued on behalf of its Philip Morris USA subsidiary that the lawsuits are barred by the federal cigarette labeling law, which forbids states from regulating any aspect of cigarette advertising that involves smoking and health.

Justice John Paul Stevens, however, said in his majority opinion that the labeling law does not shield the companies from state laws against deceptive practices. The decision forces tobacco companies to defend dozens of suits filed by smokers in Maine, where the case originated, and across the country.

People suing the cigarette makers still must prove that the use of the words “light” and “lowered tar” actually violate the state anti-fraud laws, but those lawsuits may go forward, Stevens said.

Stevens was joined by the other liberal justices, Stephen Breyer, Ruth Bader Ginsburg and David Souter, as well as Justice Anthony Kennedy, whose vote often decides cases where there is an ideological division.

The conservative justices, Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas, dissented.

Thomas, writing for the dissenters, said the lawsuit should be thrown out because it relies on claims about smokers’ health.

“The alleged misrepresentation here — that ‘light’ and ‘low-tar’ cigarettes are not as healthy as advertised — is actionable only because of the effect that smoking light and low-tar cigarettes had on respondents’ health,” Thomas said.

The Maine lawsuit was filed in August 2005 in U.S. District Court in Bangor by Samuel W. Lanham Jr. of Bangor on behalf of three Maine residents, Lori A. Spellman of Levant, and Stephanie Good and Allain L. Thibodeau, both of Bangor. Each smoked Marlboro Lights for 15 years or more, according to the complaint.

U.S. District Judge John Woodcock issued a summary judgment ruling in the cigarette makers’ favor in 2006. The 1st U.S. Circuit Court of Appeals reversed that ruling the next year and attorneys for the tobacco firm appealed it to the nation’s highest court. The case was the first case argued before the U.S. Supreme Court this term, on Monday, Oct. 6.

The court also rejected Philip Morris’ argument that the Federal Trade Commission’s endorsement in the mid-1960s of machine testing of cigarette tar and nicotine levels should relieve the company of liability for alleged fraud.

The case will be returned to federal court in Bangor after the first of the year, Lanham said Monday. A trial date is not expected to be set for several months. The first motion he expects to be filed will be to certify the case a class-action lawsuit.

“Companies that make products have a duty not to deceive the public,” Lanham said in a statement e-mailed to the Bangor Daily News. “Philip Morris deceived millions of consumers for more than 30 years in the deceptive advertising of Marlboro Lights cigarettes, including my three Maine clients.

“All we wanted from the outset was for our clients, and countless others like them, … to have their day in court, so a jury could say this is not the way we do business in Maine,” he continued. “Philip Morris pulled out all the legal stops — all the way to the highest court in our land — to block our clients’ access to justice. This decision allows us to pick up where we left off more than two years ago, pursuing claims for deception on their behalf under the Maine Unfair Trade Practices Act. It is a good day in Maine and across the nation for consumer justice.”

Maine Attorney General Steven Rowe praised the high court’s decision in a press release. Rowe filed a friend of the court brief in support of Lanham’s clients. Attorneys general from 46 other states signed on to the brief.

“Today’s decision is a major win for the health of American people,” Rowe said. “The court has held that cigarette manufacturers cannot make fraudulent claims about the safety of their products and then hide behind the Federal Cigarette Labeling Act. The decision makes clear that state unfair and deceptive trade practice laws are not pre-empted by the Federal Labeling Act. Maine was proud to lead the states in arguing against pre-emption.”

Altria senior vice president and associate general counsel Murray Garnick said the company still could prevail in these fraud lawsuits. “We continue to view these cases as manageable, and the company will assert many of the strong defenses used successfully in the past to defend against this very type of case,” Garnick said.

The Maine lawsuit argues that the company knew for decades that smokers of light cigarettes compensate for the lower levels of tar and nicotine by taking longer puffs and compensating in other ways.

David Frederick, who represented the Maine residents at the high court, said: “Had the court gone the other way, it would have been open season for the tobacco companies to continue to perpetrate fraud on the tobacco-consuming public.”

Last month, the FTC formally dropped its endorsement of the machine testing, known as the Cambridge Filter Method.

The commission said the test method is flawed because, among other things, the machine doesn’t take into account the way smokers adjust their behavior.

The case is Altria Group Inc. v. Good, 07-562.

BDN staff writer Judy Harrison contributed to this report.

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