Legal Issue 

Whether tobacco companies can be sued under state law for deceptive advertising of “light” cigarettes or whether federal law prohibits such lawsuits.

Overview

The plaintiffs in this class action smoked “light” cigarettes manufactured by Philip Morris for over 15 years.  They sued under Maine’s Unfair Trade Practices Act, claiming that the tobacco company fraudulently advertised Marlboro Lights as conveying less tar and nicotine than regular cigarettes. Philip Morris argued that they could not be sued under state law for deceptive advertising since the Federal Cigarette Labeling and Advertising Act prohibits such lawsuits. Under the federal law, states cannot impose requirements or prohibitions based on smoking and health on the advertising or promotion of cigarettes. The defendants also argued that plaintiffs’ state law unfair trade practices claims conflicted with the Federal Trade Commission’s regulatory approach as to “light” and “low tar” cigarettes, and thus were impliedly preempted as well. At issue was whether this federal law shields Philip Morris from liability for representing that Marlboro Lights are lower in tar and nicotine than standard cigarettes and for using the “Lights” descriptor in its advertising.

The trial court held that the plaintiffs’ claims were preempted, but the U.S. Court of Appeals for the First Circuit reversed. The defendants appealed to the U.S. Supreme Court, which held, by split decision, that the state law had not been preempted.

This case is significant because it determined whether consumers can continue to sue the tobacco industry for any form of fraudulent misrepresentation and deceptive marketing, or whether federal law preempts state lawsuits and allows manufacturers to escape legal accountability.

On June 18, 2008, the Tobacco Control Legal Consortium filed an amicus brief supporting Good. We argued that based on legal precedent there was no merit to Altria’s radical claim that the Federal Cigarette Labeling and Advertising Act shields cigarette companies from fraud claims under state law. We pointed out that holding otherwise would “effectively insulate cigarette manufacturers from rules governing fraud, no matter how egregious the manufacturers’ false statements or fraudulent concealment.” Indeed, were Altria’s position correct, the states of the nation would have been unable to bring the largest lawsuits of all time: the states’ tobacco litigation of the 1990s, which lead to the historic tobacco settlements.

Our brief also debunked the tobacco industry’s theory that the Federal Trade Commission (FTC) has a “policy” authorizing the use of health descriptors like “light” and “low tar,” and that this federal policy preempts state lawsuits. We argued that this “implied preemption” claim is without basis since no such Federal Trade Commission “policy” exists, and we pointed out that finding FTC preemption in this case would seriously undermine the ability of states to enforce their own consumer protection and anti-fraud statutes.

The brief was written by Professor David Vladeck, Georgetown University Law Center on behalf of the Tobacco Control Legal Consortium, and was joined by AARP and Public Justice.

Outcome

The U.S. Supreme Court held that state law fraud claims relating to cigarette packaging and marketing are not preempted by federal law.  The Court upheld the rightof smokers to sue tobacco manufacturers for deceptive health claims, rejecting industry arguments that the Federal Cigarette Labeling and Advertising Act prevents consumers and state officials from suing manufacturers for fraudulent health claims.

This decision allowed other “light” cigarette fraud cases to be brought without risk of being preempted by federal law. Even after the U.S. Supreme Court ruling, the tobacco companies continued to fight these claims.