Court Allows Suit Against 'Light' Cigarette Makers

Tobacco companies have been accused of fraudulent marketing of "light" cigarettes. (By Justin Sullivan -- Getty Images)

In the cigarette case, the court split along familiar ideological grounds, with Justice Anthony M. Kennedy, often the deciding vote in such cases, siding with his more liberal colleagues: Stevens and Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Justice Clarence Thomas wrote a dissent that was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel A. Alito Jr.

The companies that make "light" and "low-tar" cigarettes say they rely on a test, approved by the Federal Trade Commission, that is conducted by a smoking machine and shows that the "light" and "low-tar" cigarettes contain smaller amounts of tar and nicotine than regular cigarettes.

But the smokers in this case, who used Philip Morris's Marlboro Lights and Cambridge Lights for more than 15 years, alleged that "human smokers unconsciously engage in compensatory behaviors" that negate any benefit. Those who smoke such cigarettes, amounting to about 80 percent of smokers, take deeper drags, hold the smoke longer in their lungs or smoke more of the cigarettes to compensate for the lower nicotine levels.

They have cited internal company documents to accuse Philip Morris of knowing just that but still marketing low-tar and low-nicotine cigarettes as less harmful.

Philip Morris contended that the Maine suit was barred by federal laws enacted in the 1960s that set a standard for the warning of health risks from smoking and that barred states from enacting any additional regulation "based on smoking and health."

Stevens relied on the court's 1992 ruling in Cipollone v. Liggett Group Inc. for yesterday's result. That decision, which produced three opinions but none in which a majority agreed, held that the federal label law did not ban all suits filed under state laws.

And Stevens said the Maine law concerned deceptive practices, not "smoking and health."

Thomas dissented, saying that Cipollone created "an unworkable test" and that the Maine case "is premised on the effect of smoking on health." That is just what federal law forbids states from regulating, he said.

Thomas also noted the court's more recent decisions on the issue of preemption and said, "This court has altered its doctrinal approach."

One difference in this case is that the FTC and the federal government supported the smokers' suit. Commissioner Jon Leibowitz issued a statement calling the decision "vindication for the Federal Trade Commission, which never meant to preempt state laws against deceptive advertising."

Staff writer Jerry Markon contributed to this report.