Recht

WASHINGTON – If tobacco companies deceived smokers of "light" and "low tar" cigarettes, smokers can sue them under state consumer laws, the U. S. Supreme Court decided on Dec. 15.

Five Justices agreed that federal labeling laws do not pre-empt suits in state courts alleging that tobacco companies violated a duty not to deceive smokers.

In West Virginia, the decision allows Circuit Judge Arthur Recht of Wheeling to lift a stay he imposed on all tobacco suits in West Virginia.

Recht, who handles tobacco litigation by appointment of the Supreme Court of Appeals, imposed the stay while awaiting the decision.

U.S. Supreme Court Justice John Paul Stevens wrote that limits on state authority to prohibit deceptive advertising would not further the purposes of federal labeling law.

The majority ratified a 1992 decision, Cipollone v. Liggett Group, that carried no force because a plurality decided it rather than a majority.

The new opinion mentioned in passing a decision with equally heavy consequences.

Stevens wrote that in November, the Federal Trade Commission rescinded tar and nicotine tests it used for 42 years.

He didn't identify a new testing method, but smokers should see label changes soon.

Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer sided with Stevens.

Four Justices dissented, arguing that the Court should have scrapped Cippolone.

Justice Clarence Thomas wrote that the majority defeated express Congressional purpose and opened a door to an untold number of lawsuits across the country.

Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito joined the dissent.

Maine resident Stephanie Good started the suit at federal court in Maine.

She proposed a class action against Altria Group Inc., parent of Philip Morris, under the state's unfair trade practices act.

She alleged that Altria fraudulently conveyed a message that light cigarettes delivered less tar and nicotine when Altria knew the message was untrue.

Altria answered that the Cigarette Labeling and Advertising Act pre-empted the suit.

The act pre-empts any state law that imposes requirements or prohibitions "based on smoking and health."

A trial judge agreed with Altria, and an appeals court agreed with Good.

An appeal to the Supreme Court provided an opportunity to deal with Cippolone.

In that case, four Justices held that the labeling law pre-empted some claims but not all.

To determine pre-emption, they held, a court must determine whether the legal duty behind an action for damages constituted a requirement based on smoking and health.

Applying the test, they allowed a claim of fraud by misrepresentation but rejected a claim of fraud by advertising in ways that neutralized label warnings.

Three Justices dissented, finding no basis for distinctions among common law claims and predicting difficulty for lower courts in applying the test.

Two Justices dissented in another direction, arguing that the test should be whether state law forces manufacturers to do things that Congress barred states from requiring.

Scalia wrote for the third group, "A disposition that raises more questions than it answers does not serve the country well."

Sixteen years later Stevens, who wrote the plurality opinion in Cippolone, finished that project by writing the majority opinion in Good v. Altria Group.

He wrote that the duty in Maine's statute had nothing to do with smoking and health.

"It is true, as petitioners argue, that the appeal of their advertising is based on the relationship between smoking and health," Stevens wrote.

The text of federal labeling law, however, does not refer to harms related to smoking and health, he wrote.

"Rather, it pre-empts only requirements and prohibitions -– i. e., rules -– that are based on smoking and health," he wrote.

Maine's law is a general rule that creates a duty not to deceive, he wrote.

"Respondents still must prove that petitioners' use of 'light' and 'lowered tar' descriptors in fact violated the state deceptive practices statute," he wrote.

Thomas wrote in dissent, "The Court should not retain an interpretative test that has proved incapable of implementation.

"We owe far more to the lower courts, which depend on this Court's guidance, and to litigants, who must conform their actions to the Court's interpretation of federal law.

"This will inevitably result in the nonuniform imposition of liability for the marketing of light and/or low tar cigarettes – the precise problem that Congress intended to remedy.

"The alleged misrepresentation here – that 'light' and 'low tar' cigarettes are not as health as advertised – is actionable only because of the effect that smoking light and low tar cigarettes had on respondents' health.

"This is exactly the type of lawsuit that is pre-empted by the Labeling Act."

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