Light/Low-yield Cigarettes

Overview

In the late 1960s, tobacco manufacturers began promoting “light” cigarettes in reaction to growing evidence of the link between smoking and lung cancer. By using machine measurements, including the Cambridge Filter Method, producers created cigarettes that received lower nicotine and tar readings. These deceptively low readings were then used to market “light,” “ultra light,” “low-tar” and “mild” cigarettes. However, in 2001, the National Cancer Institute confirmed that “light” cigarettes are just as dangerous as traditional brands. Through its report, entitled Monograph 13, Risks Associated with Smoking Cigarettes with Low-Machine Measured Yields of Tar and Nicotine, the National Cancer Institute examined industry documents and scientific research to determine that “light” cigarettes are devoid of health benefits.

Nevertheless, research shows that smokers switch to “light” cigarettes out of mistaken beliefs that these brands are healthier than standard brands and that smoking “light” cigarettes will put them on the path to quitting. In fact, the machines used to measure nicotine and tar levels in “light” cigarettes typically produce inaccurate readings. “Light” cigarette smokers often draw smoke deeper into their lungs and with more frequency than smokers of regular cigarettes. Another reason for these skewed measurement results is that “light” cigarettes often contain small ventilation holes that dilute the smoke when measured by a machine. “Light” cigarette smokers cover many of these holes with their fingers or lips. To satisfy their addiction, they may simply smoke more cigarettes. Tobacco industry documents reveal that manufactures knew that “light” cigarettes were not healthier than traditional brands, but continued to profit from the deception of consumers.

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  • Legal Issues
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Legal Issues

The primary claim in “light” cigarette litigation is that tobacco manufacturers misled consumers by marketing “light” cigarettes as containing less tar and nicotine than standard brands, despite knowing that actual exposure levels were the same. The legal basis for these actions largely relies on Unfair Trade and Deceptive Business Practices statutes, which protect consumers from harmful business practices.

Many “light” cigarette cases are class-action lawsuits. Collectively, the plaintiffs argue that under an Unfair Trade statute, they are entitled to recover some or all of the money spent on “light” cigarettes. By suing as a class, individual plaintiffs are able to aggregate resources and take on large tobacco companies more effectively. To qualify for class action status, plaintiffs must meet several requirements: 1) the class must be so large that trying each class member’s claim individually is impractical, 2) common questions of law or fact exist, 3) the claims and defenses of the representative class members are typical of those of the class, and 4) the representative attorneys are competent to protect the interests of the class. Tobacco attorneys have attempted, and in some cases been successful, in preventing class action certification by arguing that they are entitled to challenge each plaintiff’s individual motives for purchasing the cigarettes.

Not all “light” cigarette cases are class actions. Several individual “light” cigarette lawsuits have been brought, which are similar in nature to other individual lawsuits against tobacco manufacturers. One key difference between the two types of cases is that individual plaintiffs usually seek damages for health related-injuries, whereas class action parties typically seek only a full or partial refund of the amount paid to purchase the cigarettes.

Federalism Issues

The Federal Cigarette Labeling and Advertising Act (FCLAA) regulates the standards for advertising health-related information on cigarettes. Because the FCLAA is a federal act, some courts have found that it preempts or supersedes state laws. Thus, this act has posed a barrier to “light” cigarette litigation when violations of state laws are alleged. Nonetheless, in several cases, the court has found that the FCLAA does not preempt plaintiff’s claims in light cigarette cases because the claims dealt with a “general duty not to deceive” rather than concerns of smoking and health.

Select Research

Select Litigation

  • United States v. Philip Morris USA, Inc., et al., 449 F. Supp.2d 1 (D.D.C. 2006). The United States Department of Justice sued leading cigarette manufactures in this massive racketeering case. In a section of the Final Opinion devoted to “light” cigarettes, the court found that the defendants misled tobacco consumers into believing that “light” cigarettes are healthier than traditional brands. The court described how defendants continued to exploit consumers and profit from the deceptively “light” cigarette brand despite longstanding knowledge that these products had no clear health benefit. The opinion is over 1,700 pages long: the Executive Summary is 37 pages. The Legal Consortium has compiled and summarized Judge Kessler’s findings on light cigarettes in its publication, The Verdict Is In: Findings from United States v. Philip Morris.
    • Amicus brief of the Tobacco Control Legal Consortium: United States v. Philip Morris (Nov. 2007). One of several amicus briefs written in support of plaintiff-appellee urging affirmance of Judge Gladys Kessler’s ruling. This brief addresses the First Amendment issues raised by defendant on appeal and argues that the tobacco industry’s commercial speech was false, misleading, and deceptive, and not protected by the First Amendment.
  • Cipollone v. Liggett Group Inc., 505 U.S. 504 (1992). Although the Supreme Court held that plaintiffs were barred from bringing claims for negligence and failure to warn, this case opened the door for further cigarette ligation under misrepresentation and intentional tort theories. By serving as a model for future class action lawsuits and illustrating the ability of plaintiffs to expose manufacturer misconduct through internal industry documents, Cipollone paved the way for subsequent “light” cigarette litigation.
  • Dahl v. R.J. Reynolds, 742 N.W.2d 186 (Minn. App. 2007). Plaintiffs sued the defendant for advertising “light” cigarettes that conferred a health benefit to consumers. The district court found that the claims were preempted by the Federal Cigarette Labeling and Advertising Act because they were based on standards for advertising health-related information on cigarettes. In light of the Supreme Court’s 1992 holding in Cipollone v. Liggett Group, Inc., the court reversed, finding that these state law claims were predicated on a broader duty not to lie or deceive in advertising and thus were not preempted by federal law.
  • Price v. Philip Morris, 848 N.E.2d 1 (2005). Illinois smokers claimed they were misled into believing that “light” cigarettes were healthier than Philip Morris’ regular brands. Although a $10.1 billion judgment against Philip Morris was reached by the circuit court judge, two years later the state Supreme Court reversed, saying that the Federal Trade Commission (FTC) authorized the marketing of “light brands.” The U.S. Supreme Court denied the petition for review.
  • Altria Group, Inc. v. Good, 501 F.3d 29 (2008). In this class action suit, the Supreme Court found that the Federal Cigarette Labeling and Advertising Act did not prevent tobacco manufacturers from being sued for deceptive advertising of “light” cigarettes in violation of state law. Following the plurality opinion adopted in Cipollone , the court determined that the claim was not intertwined with concerns of cigarette smoking and health, but instead was primarily a fraud claim that was not expressly preempted under the Cipollone ruling. As one of 40 pending “light” cigarette cases, this important decision has opened the door to similar litigation.
    • Oral argument transcript from the Altria case (October 2008).
    • Amicus Brief, Tobacco Control Legal Consortium (June 2008). Argues that based on the court’s holding in Cipollone, the Federal Cigarette Labeling and Advertising Act should not prevent liability for representations that “light” cigarettes are contain less tar and nicotine. If federal preemption was allowed, cigarette manufacturers could not be found liable despite any level of fraud or deceit they participated in. As a result, states would not be able to enforce their own consumer protection statutes.
  • Williams v. Philip Morris. In this historic nine-year-old “light” cigarette case, an individual plaintiff, Mayola Williams, sued Philip Morris after her husband, a longtime “light” cigarette smoker, died of lung cancer. Williams was originally awarded $79.5 million in punitive damages for Philip Morris conduct the Oregon Supreme Court likened to manslaughter. The U.S. Supreme Court overturned the jury’s verdict twice and send it back twice to the Oregon Supreme Court for review. On April 1, 2009, the U.S. Supreme Court refused to hear an appeal for a third time, letting stand one of history’s largest awards for punitive damages involving an individual plaintiff against the tobacco industry.
    • Amicus brief of the Tobacco Control Legal Consortium (June 2008). Arguing that, based on Cipollone, there is no merit to Altria’s claim that the FCLAA shields cigarette companies from fraud claims under state law, and debunking the tobacco industry’s theory that the Federal Trade Commission has a policy authorizing descriptors like “light” and “low tar” and that this federal policy preempts state lawsuits. Joined by AARP and Public Justice.

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