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Massachusetts Light Cigarette Lawsuit Moving Forward

Mar 17, 2009 | Parker Waichman Alonso LLP

The Massachusetts Supreme Judicial Court  has just ruled that cigarette smokers in that state are eligible to use a state consumer protection law to sue Philip Morris Inc. for how it marketed Marlboro Lights, the Associated Press (AP) reported.

The AP noted that the recent ruling is very similar to a U.S. Supreme Court ruling this past December, which allows class-action lawsuit initiated by smokers claiming deceptive marketing.  The high court ruling said the 1965 Federal Cigarette Labeling and Advertising Act does not protect cigarette makers from fraud lawsuits over how those makers market cigarettes they describe as “light” or “low tar.”  Also, according to an earlier Bloomberg.com report, the high court said federal oversight of cigarette testing did not preclude those lawsuits.

Millions of Americans have smoked “low-tar,” “mild,” or “light” cigarettes, believing those cigarettes to be less harmful than others; however, many were falsely marketed as “safe” or “harmless.”  As a matter-of-fact, a variety of studies found “light” cigarettes to be as dangerous as other varieties and, even more incriminating, a more than 30-year-old Philip Morris memo from 1975 was made public in 2007 that proved cigarette makers were aware that smokers of light cigarettes took longer puffs and inhaled larger amounts of tar than those who smoked other versions.  The controversy has generated dozens of lawsuits claiming billions of dollars in damages.

The U.S. Supreme Court case allows smokers to use state laws to sue cigarette makers for how they promote so-called "light" and "low tar" cigarettes.  The Massachusetts Supreme Judicial Court, citing the high court decision, said smokers can sue Altria Group Inc.’s Philip Morris for deceptive marketing practices, reported the AP.  The 1998 suit claimed Philip Morris used deceptive marketing because its Marlboro Lights did not provide lower tar and nicotine, said the AP.

Philip Morris had argued that the Massachusetts consumer protection law is pre-empted by the 1965 Act, banning states from regulating any aspect of cigarette advertising involving smoking and health, said the AP.  Philip Morris also argued that the Federal Trade Commission (FTC) allows the use of terms such as "light" and "lower tar and nicotine" on cigarette packages and claims the Act, which required tobacco companies to place rotating warnings on their packaging and advertising, pre-empted such lawsuits.  Philip Morris stopped using the phrase "lower tar and nicotine" on packages in 2003.

The state’s Supreme Judicial Court said the FTC did not specifically allow those categorizations, saying the labels did little but fool smokers into thinking they faced less of a health risk, the LA Times said in an earlier article.  The FTC allows cigarette companies to use the classifications as long as they are determined by a standardized system that uses a machine that smokes cigarettes the same way every time.  But people are not like machines, and some take deeper breaths and larger puffs than others.  It is also well-recognized that smokers who switch from regular to light cigarettes “compensate” for the decreased nicotine by inhaling more deeply; taking larger, more rapid, or more frequent puffs; or increasing the number of cigarettes smoked daily, thus negating any potential benefit of smoking a “low-tar” cigarette.  The FTC itself has raised concerns about its testing methods and has admitted in prior congressional testimony that its “ratings tend to be relatively poor predictors of tar and nicotine exposure.”

Although the lawsuit can proceed, smokers must prove the descriptors violate the state’s consumer protection law, said the AP.

Although only two plaintiffs are involved, they represent a group in the thousands, reported the AP.