CommentaryJURIST Guest Columnist Micah Berman of New England School of Law says that by bringing attention to the issue of “light” and “low tar” cigarettes, the US Supreme Court's ruling in Altria v. Good may prompt state attorneys general to finally force an end to this long-running public health deception…
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Much of the initial commentary about Good has focused on whether the decision signals a retreat from the Supreme Court’s broad view of federal preemption. But what of the merits of the underlying claims? Does the Good decision suggest that cigarette companies are likely to face a new wave of lawsuits and adverse judgments? Is there a public health litigation strategy that can successfully counter the tobacco industry’s misleading promotion of “light” cigarettes?
As a factual matter, the plaintiffs are on solid footing. There is no question that “light” cigarettes are just as harmful as other cigarettes, primarily because smokers “compensate” for lower levels of nicotine by smoking more and inhaling more deeply. Internal tobacco company documents show that the companies have known since at least the 1970s that their ads for “light” and “low tar” products deceived consumers into mistakenly believing these products were less harmful.
But these facts are not the end of the story. Overall, the plaintiffs must overcome numerous obstacles to prevail on their claim, and the odds are heavily stacked against them.
First, the trial judge must now rule on the plaintiffs’ motion for class action certification. Courts have been wary of certifying class actions in similar cases, since issues of individual reliance and damages tend to overwhelm common questions. A recent Second Circuit decision (McLaughlin v. American Tobacco) decertified a “lights”-related class action, finding that “numerous issues in this case are not susceptible to generalized proof.” Without class action certification, it may be prohibitively expensive for individual plaintiffs to proceed with their lawsuits.
Secondly, although the Supreme Court held that the Federal Trade Commission’s sanctioning of the tobacco industry’s nicotine and tar testing method did not preempt the plaintiffs’ claims, Philip Morris can still assert that its reliance on FTC’s guidance protects it from liability under a statutory exemption in the MUTPA. The MUTPA includes an exemption for actions that are “authorized” or “permitted” by a federal agency, and Philip Morris has successfully used similar statutory language as a defense to “lights”-related suits in other states. Most notably, such an exemption was the basis for the Illinois Supreme Court overturning a $10.1 billion jury verdict against Philip Morris in 2005.
More generally, Philip Morris is known for its “scorched earth” litigation tactics, its willingness to appeal any adverse verdicts, and its efforts to shift the focus to the plaintiffs’ conduct. Facing such an adversary, the odds of the Maine plaintiffs ultimately prevailing on their claims and withstanding the inevitable appeals are slim.
But is there another way to address the public health problem highlighted in Good? Today, the vast majority of cigarettes purchased in the United States are “light” or “low tar,” and in many cases, these products are purchased because of the mistaken belief that they are substantially safer than regular cigarettes. If individual lawsuits are unable to stop the tobacco companies from deceptively marketing these products, who can?
The state attorneys general are one possibility. As part of the 1998 Master Settlement Agreement (MSA) with the states, the tobacco companies pledged that they would stop misrepresenting the health effects of their products. Nonetheless, they have continued to advertise popular brands as "light" and "low tar," despite their knowledge that these terms are misleading.
The state AGs could bring an MSA enforcement action against Philip Morris and the other tobacco companies seeking to prohibit the use of the terms “light” and “low tar.” The strongest argument against such action would be that the “light” and “low tar” cigarettes were already a sizable portion of the cigarette market in 1998, and if the MSA had intended to prohibit these products, it would have done so much more explicitly. This argument, however, fails to recognize the extent to which new evidence has emerged since 1998 demonstrating the tobacco companies’ knowledge that their promotion of “light” and “low tar” cigarettes was misleading consumers. Moreover, there is no grandfathering provision in the MSA that permits tobacco companies to mislead consumers simply because the misrepresentation at issue preceded the settlement agreement. Though the MSA enforcement process is time-consuming and cumbersome, concerted action by state AGs could put a spotlight on this issue and push tobacco companies towards discontinuing the use of “light” and “low tar” as product descriptors.
There are two other potential, but less promising ways in which this issue could be addressed. First, a federal government lawsuit against the tobacco industry resulted in a 2006 decision by D.C. District Court Judge Gladys Kessler ordering the tobacco companies to stop labeling their products as “light” and “low tar.” It is possible that the D.C. Circuit Court will uphold Judge Kessler’s order (it was stayed on appeal), but most observers suspect it will not. Second, there is pending legislation in Congress that would prohibit the use of the terms “light” and “low tar.” The prospects of such legislation may have increased with the recent election, but it faces strong opposition from tobacco-state senators and is unlikely to be high to Congress’s long to-do list.
By itself, the decision in Good may do little to restrain the tobacco industry’s deceptive marketing practices. But by bringing attention to the issue of “light” and “low tar” cigarettes, it may prompt the state AGs to finally force an end to this long-running deception. It is up to the states, but there may well be a litigation strategy that can put out the “lights.”
Micah Berman is an assistant professor at New England School of Law, Boston and previously directed the Tobacco Public Policy Center in Columbus, Ohio.
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