Consumer Fraud Claim Against Phillip Morris In “Light” Cigarette Case: U.S. Supreme Court to Review

A suit was filed against Phillip Morris claiming its practice of labeling cigarettes as “Light” qualified as consumer fraud. The Appellate Court denied Phillip Morris’s argument that it was immune from such lawsuits under federal law so the company is appealing to the U.S. Supreme Court.

The plaintiffs in Altria v, Good, 501 F. 3d 29 (1st Cir. 2007) alleged that Phillip Morris violated state laws prohibiting fraudulent misrepresentation in its false promotions and advertising for Marlboro and Cambridge Lights as “Light” with “Lowered Tar and Nicotine” when in fact the “Light” cigarettes would not deliver any less tar or nicotine to the smoker.

Phillip Morris responded to plaintiff by stating that the consumer fraud claims are preempted by the Federal Cigarette Labeling and Advertising Act, and preempted implicitly in the “efforts of Congress and Federal Trade Commission for 40 years to implement a national, uniform policy of informing the public about the health risks of smoking.”
The majority of the defendant’s argument rests on its assumption that the plaintiffs are bringing a claim for a failure to warn and not for fraud. Because a failure to warn would fall under the banner of warning label regulations, which is overseen by the federal government, any such claims would need to be brought under federal, and not state, law.

However, the US Court of Appeals for the First Circuit did not see plaintiffs’ claim as dealing with a failure to warn, but rather with Phillip Morris fraudulently representing its product. And because the federal law does not deal directly with fraud there is nothing to preempt the state law from taking precedent. Therefore, Phillip Morris is not immune from litigation dealing with plaintiffs’ claim because federal law does not negate consumer fraud claims related to the sale of light cigarettes.

To reach a final conclusion, the US Supreme Court has agreed to review Phillip Morris’s argument that federal law totally immunizes it from suits regarding consumer fraud claims as to “light” cigarette labeling. The case is set for oral argument in the fall of 2008.

I’m delighted that the Public Justice Foundation is part of a consortium of consumer groups actively involved in filing an amicus brief on behalf of the plaintiffs and the more than 36 million “Light” cigarette smokers. These smokers of “Light” cigarettes relied on false information contained in Phillip Morris’s advertising- that light cigarettes were less dangerous than regular cigarettes.

Because of Phillip Morris’s fraudulent advertising more than half of these smokers continued smoking based on their belief that switching or continuing with “light” cigarettes was an alternative to quitting. The scientific evidence, which has long been concealed by Phillip Morris, shows unequivocally that light cigarettes are no less deadly than regular cigarettes and offer no health benefit.

This is further supported by the amicus brief which argues that there is no basis for Philip Morris’s federal preemption claim because the FTC never authorized its use of “light” or “low tar” as descriptors for marketing its cigarettes. We shall see if the U.S. Supreme Court agrees with this interpretation of the law this fall. If it does, its ruling will force changes in Phillip Morris’s future advertising and hold them accountable to those who relieved on their false claims.

Robert Kreisman is an active member and supporter of the Public Justice Foundation. For over 30 years, he has been practicing law in Chicago and Cook County,including Berwyn, Glencoe, Orland Park, and Wilmette.

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