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Court Allows Suit Against 'Light' Cigarette Makers

Companies Face Huge Liabilities Over Marketing

Tobacco companies have been accused of fraudulent marketing of "light" cigarettes.
Tobacco companies have been accused of fraudulent marketing of "light" cigarettes. (By Justin Sullivan -- Getty Images)
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Washington Post Staff Writer
Tuesday, December 16, 2008; Page A02

The Supreme Court said yesterday that consumers may sue over what they allege to be deceptive marketing of "light" cigarettes, a decision that opens tobacco companies to what could be billions of dollars in liability in court cases nationwide.

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The justices voted 5-4 in saying that a group of Maine smokers may proceed with their suit against Philip Morris USA, now owned by Altria. The marketing of what the tobacco companies had once called a more "healthy" cigarette is perhaps the biggest legal liability facing the industry, experts say.

The court said federal laws regarding the labeling of cigarettes for health dangers do not stand in the way of suits under state laws that regulate fraudulent marketing practices.

Such suits, wrote Justice John Paul Stevens, are "predicated on the duty not to deceive" and are separate from federal oversight of cigarette testing or the warnings printed on cigarette packs.

Tobacco companies and business groups had hoped the court would rule that the federal laws "preempt" state consumer laws. Anti-smoking groups said the ruling gave a "green light" to court action to hold cigarette-makers liable for the harm they cause.

"It is a historic day for tobacco litigation," said Edward L. Sweda Jr., senior attorney for the Tobacco Products Liability Project at Northeastern University School of Law. He added that the industry had wanted an "absolute shield of immunity for decades of wrongdoing."

In addition to the Maine case, he said there were about 40 similar suits filed in more than 20 states against tobacco companies that sell the "light" and "low-tar" cigarettes.

An Altria lawyer said the company was disappointed by the ruling but pointed to Stevens's comments that smokers have only won the right to try to prove that the company was deceptive. The Maine case was dismissed by a judge before the smokers had even presented their allegations to a jury.

"We continue to view these cases as manageable, and the company will assert many of the strong defenses used successfully in the past to defend against this very type of case," said Murray Garnick, Altria Client Services senior vice president and associate general counsel.

The decision in the case, Altria Group v. Good, is the latest in a growing national debate over "preemption," a doctrine under which liability lawsuits filed in state courts are being challenged as being the province of federal law.

Courts are filled with such cases, and the Supreme Court recently decided several in favor of industries. Robin Conrad, who represents the U.S. Chamber of Commerce, said yesterday's decision came "just when we thought the court was finally introducing some clarity" to the issue. "We're all baffled," she said.

The justices have heard arguments this term in another preemption case, involving the pharmaceutical industry, which may provide more guidance about when federal law trumps state consumer protection statutes.

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