High Court OKs Cigarette Lawsuits

The Supreme Court has voted to allow lawsuits to go ahead against cigarette companies, alleging that the companies deceived consumers into thinking "light" cigarettes were healthier.

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The Supreme Court delivered an unexpected blow to the tobacco industry today. By a five-to-four vote, the justices ruled that consumers can sue cigarette manufacturers under state antifraud laws for the deceptive marketing of light cigarettes. NPR's Nina Totenberg reports on a case that originated in the state of Maine.

NINA TOTENBERG: For years, consumers have tried, without much success, to sue cigarette manufacturers for falsely labeling low tar and nicotine cigarettes as light and advertising them as less dangerous. That was one of the claims that resulted in a $10 billion judgment against the industry in Illinois. But that jury verdict was set aside by the state Supreme Court. Other lawsuits have suffered a similar fate in both state and federal court. One reason is that the tobacco companies have argued successfully in the lower courts that the federal law gives all regulatory power over cigarette labeling and advertising to the Federal Trade Commission.

Today the Supreme Court rejected that argument by a five-to-four vote. Writing for the court, Justice John Paul Stevens said the federal law does not shield the tobacco companies from state laws against deceptive practices. Joining Stevens in the majority were Justices Kennedy, Souter, Ginsburg, and Breyer. Writing for the dissenters, Justice Clarence Thomas said the ruling would lead to non-uniformity in state regulation of cigarette advertising, the very thing that Congress sought to prevent when it passed the Federal Cigarette Labeling law.

Today's ruling was something of a surprise from an increasingly pro-business court that's often barred state lawsuits saying they're pre-empted by a broad federal law. Not so today. The tobacco industry will now have to defend its marketing of light cigarettes in dozens of lawsuits across the country. This is the latest in a series of blows to the industry on this issue.

In a criminal racketeering case brought by the Department of Justice, a federal court here in Washington ruled that light cigarettes are not safer and that the industry's claim that they are is not only false, but a principal weapon in its efforts to mislead the public about the health risks of smoking. That decision is on appeal.

In August, the Federal Trade Commission also weighed in, declaring for the first time that current science shows light cigarettes are not safer. The FTC specifically rejected evidence obtained decades ago with so-called smoking machines. FTC Commissioner Jon Leibowitz.

Mr. JON LEIBOWITZ (Commissioner, Federal Trade Commission): In the 1960s, we had a puffing machine on the fifth floor of the agency.

TOTENBERG: Johns Hopkins University professor Jack Henningfield, who worked for 16 years at the addiction lab of the National Institute for Drug Abuse, has testified that light cigarettes were designed to fool the puffing machine. To scam the machine, he says, Philip Morris and other manufacturers designed cigarettes with tiny holes.

Dr. JACK HENNINGFIELD (Associate Professor of Behavioral Biology, Johns Hopkins University): When you put the cigarette in the testing machine, the testing machine gets lots of fresh air through those tiny holes, and it dilutes the tar and nicotine.

TOTENBERG: But when a real person smokes the same cigarette, Henningfield says, the smoker's mouth and fingertips cover those holes, so that a more concentrated dose of tar and nicotine is delivered. Tobacco industry critics also claim that testing shows smokers compensate for the holes by inhaling more and that dangerous chemicals are added to light cigarettes to enhance the addictive effect.

Philip Morris, the defendant in the Maine lawsuit, provided no spokesman today to answer questions. The company issued a statement pointing out that today's Supreme Court ruling only allows the lawsuit to go forward and that the justices took no position on the merits of the allegations. Georgetown law professor David Vladeck represents a number of anti-smoking groups.

Professor DAVID VLADECK (Law, Georgetown University): We won a right to sue the tobacco industry for lying about whether light and low tar cigarettes are actually safer than regular cigarettes.

TOTENBERG: David Frederick, who represented the Maine consumers in the Supreme Court, said this case importantly rejects the notion that the Federal Cigarette Labeling and Advertising Act confers a special immunity on the industry.

Mr. DAVID FREDERICK (Attorney): There is no fraud-free zone for tobacco companies only.

TOTENBERG: In other words, if a state has a law that makes deceptive marketing practices illegal, there's no exemption for tobacco products. Now you might wonder why the cigarette manufacturers, in light of so many recent legal repudiations, continue with their light cigarette marketing strategy? Critics say the answer is simple. Eighty-five percent of all smokers in the country smoke light cigarettes. And the industry might justifiably fear that more would quit if they thought lights were just as perilous to their health as so-called full-flavor cigarettes. Nina Totenberg, NPR News, Washington.

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