Supreme Court considers limits in 'light' cigarettes suits

Justices weigh if plaintiffs can sue under state law

WASHINGTON - Smokers who say they were defrauded by tobacco companies that marketed "light" cigarettes faced a skeptical Supreme Court yesterday in the first argument of the court's new term.

The justices accepted, some provisionally and others explicitly, that the term "light" can be misleading when referring to levels of tar and nicotine. While it is true that brands such as Marlboro Lights register lower levels of tar and nicotine when smoked by machines under a standard method authorized by the Federal Trade Commission, many human smokers compensate by puffing harder, smoking more cigarettes, or inhaling deeper.

But the question in the case is not whether it is fraudulent to call cigarettes "light" or whether the commission has acted responsibly. It is, instead, whether smokers should be able to sue under state law given that a federal law bans at least some claims concerning smoking and health.

The case, Altria Group Inc. v. Good, No. 07-562, is the court's latest exploration of the limits of preemption, the legal doctrine that can prohibit lawsuits concerning products that have met federal standards.

The case was brought by three plaintiffs from Maine as a proposed class action. They sued Altria and its Philip Morris USA unit for fraud under Maine's Unfair Trade Practices Act, saying they had been injured by their reliance on what they called the companies' false statements.

The defendants countered by invoking a federal law, the Cigarette Labeling and Advertising Act, which says "no requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion" of cigarettes that follow federal labeling requirements.

The parties agreed that the provision prohibited lawsuits challenging advertising claims "based on smoking and health." But they disagreed about whether the current fraud suit, which seeks money for economic rather than medical harm, was inextricably intertwined with claims about smoking and health.

Theodore B. Olson, representing the tobacco companies, said the plaintiffs’ fundamental claim -- that they had been misled into buying cigarettes they believed were safer than regular ones -- was inescapably about smoking and health.

David C. Frederick, representing the plaintiffs, said the federal law did not preempt fraud suits brought under general state consumer protection laws.

Frederick said there was a difference between state laws "specially targeted at the cigarette industry" and "a generally applicable rule against deception," one that would not entangle a jury into "any special inquiry about smoking and health." Only the first sort of law is preempted, he said.

Chief Justice John G. Roberts Jr. did not seem to be persuaded.

"How do you tell whether it's deceptive or not if you don't look at the relationship between smoking and health?" he asked.

The role of the Federal Trade Commission could be important in the outcome. The FTC is only now proposing to change rules that for years condoned the use of "light" and "low tar" in advertising the cigarettes.