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Tobacco Fraud Case Before The Supreme Court

Posted by Chrissie Cole
Friday, October 10, 2008 2:01 PM EST
Category: Major Medical
Tags: Federal Preemption, FDA & Prescription Drugs, Light Cigarettes, Federal Pre-emption, Tort Reform, Diana Levine, FDA, Wyeth, Philip Morris USA, Altria Group, Altria Group v. Good


IMAGE SOURCE: © iStockPhoto / Healthcare and Justice / author: ericsphotography

Upon returning for a new term on Monday, the Supreme Court justices weighed a complicated legal battle, whether state laws can be used to challenge deceptive advertising of “light” cigarettes.

Three smokers that reside in Maine, filed a lawsuit against Philip Morris USA and Altria Group, its parent company. The smokers accuse the company of allegedly deceiving smokers by leading them to believe that light cigarettes are less harmful than regular brands.

Altria Group v. Good is the latest case in a growing debate over “pre-emption,” a doctrine that federal law supersedes or trumps state law. The doctrine draws from the fact that federal laws sometimes will conflict with state laws.

Big tobacco argues that Federal Cigarette labeling and Advertising Act preempts – both expressly and implied – conflicting state laws. To put it another way, the tobacco industry argues that both federal laws on cigarette labeling expressly preempts state law claims, and the fact that the FTC has allowed such ads amounts to implied preemption of state law claims.

State regulators are concerned that their capacity to defend consumers from harmful products, including tobacco, could be threatened. “We worry that this is a plan by the Supreme Court to avert states from enforcing rules against big companies,” said Linda J. Conti, assistant attorney general for Maine, whom has filed legal arguments on behalf of 47 states.

“If states are allowed to change federal labeling laws, the result will be different labels on products in all 50 states. It’s kind of insane," said Robin S. Conrad, a lawyer with the U.S. Chamber of Commerce.

The premise of the case is not targeting cigarette smoking, but rather deceptive advertising. The distinction is crucial. The company claims they met federal labeling requirements by warning users of the associated health risks of cigarettes and therefore the lawsuit should be dismissed under federal labeling laws that ban states from regulating cigarette advertising “based on smoking and health.”

Altria further contends that the case should be thrown out because the FTC approved the company’s use of specific terms used, including “light.”

The Maine smokers argue the company should be held liable because they employed fraudulent advertising tactics. They further say the tobacco company knew smokers would compensate for low-tar and nicotine by taking longer, deeper puffs on “light” cigarettes, thereby inhaling more of the dangerous and addictive chemicals.

They claim Phillip Morris has been aware of compensatory methods for decades, citing internal documentation that was discovered during a massive case brought against the industry by the government.

A federal judge found cigarette companies guilty of conspiring to deceive the public, including falsely marketing low-tar brand cigarette brands as less harmful, in 2006.

The Diana Levine case will be another major test of federal pre-emption when it is heard by the U.S. Supreme Court on November 3.

In that case, Levine sued Wyeth arguing that the company had a duty to warn against injecting the drug Phenergan.

Levine, a musician, lost her right arm below the elbow after she was injected with the drug in an IV push and developed gangrene. She was awarded nearly $7 million, but Wyeth appealed to the U.S. Supreme Court citing federal pre-emption. #

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