Supreme Court skeptical about smokers' deception claims

McClatchy NewspapersOctober 6, 2008 

WASHINGTON — The Supreme Court returned to the stage Monday as justices weighed whether state laws can be used to challenge deceptive cigarette advertising.

Against the backdrop of a presidential campaign, the high court opened its 2008-2009 term with a case crucial to business and consumer advocates alike. Multiple justices sounded skeptical about the efforts by three Maine smokers to challenge the parent company of Philip Morris under state law.

"I have difficulty in accepting your position in this entire case," Associate Justice Anthony Kennedy told the attorney for the smokers.

Opening its business on the traditional first Monday of October, the court heard the cigarette advertising arguments while outside anti-abortion demonstrators rallied. Justices let stand without comment a lower court decision's ordering Arizona to issue "choose life" license plates to those who want them.

The "choose life" decision underscored the aging court's political importance to both presidential candidates, either of whom is likely to tip the court's balance by appointing new justices. The business case heard Monday, on the other hand, epitomized the court's more prosaic but commercially important work.

The issue in Altria Group v. Good is preemption: whether a federal cigarette-labeling law blocks state lawsuits charging deceptive practices. The stakes are high, and not just for an industry that spends upwards of $15 billion annually on advertising. Big business, in general, prefers dealing with one uniform law instead of 50 different state laws.

"If you're going to conduct a national advertising campaign, you can't do it based on what a jury might decide in Des Moines compared to what a jury might decide in Atlanta," former Solicitor General Theodore Olson told the court.

Olson represents the Altria Group, the parent company of Philip Morris. Stephanie Good, a Bangor resident who reports smoking one pack of Marlboro Lights every two or three days, joined two others in suing Altria under a state law that prohibits "deceptive acts or practices." The smokers contend Marlboro Lights advertising tricked consumers into thinking "low tar and nicotine" cigarettes are less harmful than conventional cigarettes.

The Maine residents say the tobacco company knew smokers would compensate for the low tar and nicotine by drawing more deeply on the "light" cigarettes and thereby inhale a full complement of the dangerous and addictive chemicals.

"The Maine statute is not targeted at cigarette smoking," attorney David Frederick told the court. "It's targeted at deception."

This is the crucial distinction. The federal Cigarette Labeling and Advertising Act explicitly precludes states from imposing any advertising requirements "based on smoking or health." Frederick was trying to convince the court that the smokers' lawsuit had everything to do with false advertising and nothing to do with health.

Chief Justice John Roberts and associate justices Antonin Scalia and Samuel Alito all joined in pressing Frederick hard. Even Associate Justice David Souter, not always a Roberts ally, was skeptical.

"Ultimately, you are proving a point that depends on the relationship between smoking and health," Souter said, in what could be a fatal blow for the Maine smokers' case.

More than 45 states are backing Maine. These states, which notably exclude tobacco-growing North Carolina and Virginia, stress in a legal brief that they have a "vital interest in preserving their power to regulate businesses to protect consumers from unfair and deceptive practices."

But many businesses hope the court will use Altria Group v. Good to further preempt challenges under state law. Under Roberts, the court has previously proven sympathetic to similar pro-business preemption arguments. Last February, for instance, the court in Riegel v. Medtronic concluded that a federal statute blocked state lawsuits over certain medical devices.

"A general common-law duty (not to deceive) can be preempted by a specific statute," Roberts noted pointedly Monday.

ON THE WEB

Brief for petitioners

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