Media Backgrounder & Commentary:

 Illinois Supreme Court Tosses Class Action for Marlboro
"Light" Smokers and Remands the case for Dismissal

Boston
December 15, 2005 

Contact:  Richard Daynard
Edward L. Sweda, Jr. or
Mark A. Gottlieb
617-373-2026
media@tplp.org

 Case No. 00 L 0112

               The Court's ruling, which held that Philip Morris' deceptive sales and marketing of "light" and "lowered tar and nicotine" cigarettes was exempted from protection by Illinois' consumer protection law because the defendant's conduct was "authorized" by the Federal Trade Commission is both stunningly anti-consumer and relies upon factually incorrect information. 

                 On a 4-2 majority, the Court did not reach the anticipated major issue of whether class certification was proper.  One other state supreme court, the Massachusetts Supreme Judicial Court, decided that issue in favor of the the plaintiff class of Marlboro "Lights" smokers last year (see our press release).  Rather, the Court relied on section 10(b)(1) of the Illinois Consumer Fraud and Deceptive Practices Act which exempts conduct, "specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States." 

                 To reach this conclusion, the Court relies heavily upon a 1970 agreement between U.S. cigarette manufactures and the FTC that the companies would voluntarily measure the tar and nicotine in their brands using something called the "Cambridge Method" and publish those results in on their packs as well as in advertising materials.  Subsequent to that agreement, Philip Morris employed techniques to undermine the effectiveness of that testing method by doing things like placing thousands of microscopic holes in the filters to dilute the smoke measured by the agreed upon testing method.  A 1971 Consent Decree concerning the use of the terms "low" and "lower" is likewise held out as proof that the FTC regulated Philip Morris' conduct.

                 Importantly, the FTC has never approved or authorized the use of the term "Light" or "lowered tar and nicotine" to be used by Philip Morris.  That is the heart of the deceptive sales practice targeted in this case.  And while the disconnect between the tar and nicotine levels provided by the companies and the amounts actually delivered to smokers is shocking, it has nothing to do with the fact that cigarettes marketed as "light" simply are not what they purport to be.

               There is a question as to whether an appeal to the U.S. Supreme Court is possible.  While the Illinois Supreme Court interpreted a provision of state law to exempt Philip Morris' conduct, it also interpreted federal agency action in an arguably  incorrect manner.

37 Similar cases are still pending in 22 states and a "light" cigarette RICO (racketeering) national class action is also pending in federal court in Brooklyn.

Click here for commentary                

CASE BACKGROUND

             Sharon Price and Michael Fruth, et al., v. Philip Morris Cos, Inc., presided over in the trial court by the Hon. Nicholas Byron in the Third Judicial Circuit Court, a state court in Edwardsville, Illinois, was a landmark consumer fraud class action case.  It was originally filed in 2000.  The plaintiffs proved to Judge Byron's satisfaction that the nation's largest cigarette manufacturer intentionally manipulated the design of its so-called "light" cigarettes to produce test results on cigarette machines that show lower tar and nicotine yields than what real people receive when they smoke them.  The "light" cigarettes allow natural air to flow through small holes (ventilation bands) in the cigarette and dilute the tobacco smoke, resulting in lower tar and nicotine yields "consumed" by the machine.  However, in actual usage by smokers, ventilation bands are at least partially blocked by smokers' fingers and lips, reducing the natural air flow and increasing smokers' ingestion of tar and nicotine.

             The plaintiffs also successfully argued that, by placing the words "lowered tar and nicotine" on every pack of Marlboro Lights cigarettes, Philip Morris effectively committed fraud each time a consumer purchased them.  There is a widespread belief that "light" means a product contains less of an unhealthy ingredient.  In this case, smokers bought Marlboro Lights because they thought -- erroneously, as it turns out -- those cigarettes contain less tar and nicotine.  Philip Morris contended that smokers bought "light" cigarettes because of their lighter taste and that it was the federal government and public health officials -- not Philip Morris -- that spread the message that "light" cigarettes were healthier for smokers than were regular cigarettes..

            Plaintiffs' attorney Stephen Tillery, of the Belleville, Illinois firm of Carr Korein Tillery, has told the court that he is seeking $7.1 billion in compensation from Philip Morris and $14.2 billion in punitive damages on behalf of about 1.1 million Illinois purchasers of Marlboro Lights or Cambridge Lights. Judge Byron awarded all of the compensatory damages and $3 billion of the $14.2 billion sought by Mr. Tillery.

            The trial began on January 21, 2003.  On February 11, 2003, economist Jeffrey Harris, a professor at Massachusetts Institute of Technology, said that monetary damages for Illinois smokers of Marlboro Lights and Cambridge Lights could be as high as $7.1 billion.   Closing arguments in the case were held on March 10.   

            In November 2001 a report by the U.S. National Cancer Institute concluded that "light" cigarettes do not reduce a smoker's chances of getting smoking-caused diseases.

            This case was a class-action, consumer fraud case, not a traditional product liability case on behalf of an injured party.  Thus, it does not involve medical claims.

            Philip Morris appealed the case to the mid-level appeals court and the Illinois Supreme Court quickly took the case for direct review.

COMMENTARY

Richard Daynard, a professor and associate dean at Northeastern University School of Law and Chair of the Tobacco Products Liability Project noted that, "a ruling such as this really harks back to the days when snake oil salesmen could make any outrageous product claim without fear of being held accountable."

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project said that:

Mark Gottlieb, also an attorney for the Tobacco Products Liability Project said that "instead of protecting Illinois consumers by liberally applying that state's laws to stop a blatant consumer fraud, the Illinois Supreme Court instead liberally construed the notion that FTC 'authorized' Philip Morris's deceptive conduct.  Hopefully other state's high courts will not take such an anti-consumer stand when they ultimately hear appeals of these cases in their states."

   -- ## --