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Massachusetts Okays Cigarette Class Action Against Philip Morris

Supreme Court holds that federal laws don't preempt state consumer protections

By Jon Hood
ConsumerAffairs.com

March 19, 2009

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The Massachusetts Supreme Judicial Court unanimously ruled that smokers can pursue misleading advertising by cigarette manufacturers under the state's deceptive marketing laws. The decision clears the way for a 10-year-old lawsuit against Philip Morris, claiming that Marlboro's use of "light" and "low tar" branding for certain cigarettes was deceptive.

The plaintiffs argue that so-called "light" cigarettes ultimately provide consumers with the same amount of tar and nicotine as regular cigarettes, since smokers compensate for the lower levels by taking longer, deeper puffs.

Philip Morris argued that the Massachusetts laws were preempted by federal legislation (when federal and state laws clash, federal law always takes precedence). Specifically, the defendants said that the consumer protection laws were preempted by the 1965 Federal Cigarette Labeling and Advertising Act, which forbids states from regulating health-related cigarette advertising. They also argued that the Federal Trade Commission (FTC) allows the use of terms like "light" and "low tar" on cigarette packaging. The court rejected both arguments.

The decision comes on the heels of a similar opinion from the U.S. Supreme Court in December. In Altria v. Good, the high court held that the Cigarette Labeling and Advertising Act did not preempt a Maine unfair business practice law. In that suit, too, the plaintiffs claimed that they compensated for lower levels of tar and nicotine by inhaling more deeply, and for longer periods of time.

That decision gave the go-ahead to more than a half-dozen cigarette class actions. However, these suits can still face legal hurdles. In April 2008, the Second Circuit Court of Appeals threw out a similar suit, claiming that it was impossible to generalize about why smokers chose light cigarettes. The court surmised that consumers might be "unaware of that representation, preferred the taste of lights, or chose lights as an expression of personal style." There, the court ruled that any suits would have to proceed individually, not as a class.

The Second Circuit decision also cited a study finding that smokers continued to buy light cigarettes, even after a 2001 National Cancer Institute study found that they were no safer than standard cigarettes.

Philip Morris insists in a statement that the plaintiffs' claims are still weak. The company argues that consumers paid the same price for Marlboro Lights as they would have for "full-flavored" Marlboros. Additionally, the company says that many class members are still smoking Marlboro Lights, undermining their claim that they were damaged by the advertising.

In 1998, Philip Morris signed a settlement agreement with 46 states, in which they agreed to pay roughly $200 billion over 25 years to address health-care reimbursements and other expenses. The settlement also contained restrictions on cigarette advertising, including a ban on logo-branded clothing and cartoon characters like the late Joe Camel.

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