Court Ruling Could Lead to More Tobacco Lawsuits

With 'Pre-emption' Contention Knocked Down, States May Move on 'Light' Marketing

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WASHINGTON ( -- The U.S. Supreme Court today gave the go-ahead to a state consumer-protection lawsuit that questions the marketing of "light" cigarettes. Some lawyers warn the move might lead to a rash of state lawsuits over other types of products.

The high court's 5-4 decision seemed to impose limits on a traditional argument used by national marketers to halt similar state suits. That argument: National regulations on marketing include some pre-emption of local regulation, thereby making state regulations redundant.

In today's case, the court rejected Altria Group's contention that a suit by the state of Maine, which suggests "light" is an unwarranted health claim, was pre-empted by a federal cigarette-labeling act that specifies how tar and nicotine levels are to be calculated.

The court took no position on Maine's claim that the "light" represented an illegal health claim. That claim will now be heard out in trial in state courts. Today's case was only about the pre-emption issue.

Ruling's impact
The ruling's most immediate impact is to allow additional consumer-protection cases being filed against tobacco makers, lawyers say.

Richard Samp, chief counsel of the Washington Legal Foundation, said he expected more tobacco cases. He was less sure of the decision's impact on other industries, saying that while it could also open up questions about federal pre-emption, the court case related to the language of the cigarette statute.

Barry J. Cutler, a Washington advertising lawyer and former Federal Trade Commission official, said it showed the court's reluctance to supersede state enforcement actions. "Apart from tobacco, the potential impact of the case is that it underscores a reluctance to take away the rights of state attorneys general or plaintiffs in state court," he said.

"There is a common public misconception that 'pre-emption' means that there is no room for anything but the federal standard. That can be true in some cases, but more often state laws will be allowed to the extent that they do not contradict the federal rule. In other words, if you can comply with both rules, even though the state standard is higher, it is not 'pre-empted.'"

Philip Morris: Case still 'manageable'
In a statement on behalf of Philip Morris USA, Altria Senior VP Murray Garnick said the company viewed the ruling's effect as "manageable."

"While we had hoped for a dismissal based upon federal pre-emption, it is important to note that the Supreme Court made no finding of liability. 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," he said.

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