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FOR IMMEDIATE RELEASE
Contact: Edward L. Sweda
Mark Gottlieb
(617) 373-2026
e-mail to media[at]tplp.org (use @sign)
September 4, 2007
U.S.
COURT OF APPEALS FOR THE FIRST CIRCUIT REVERSES
THE DISMISSAL OF A LIGHT CIGARETTE LAWSUIT FROM MAINE;
RULING BRIGHTENS PROSPECTS FOR SIMILAR LAWSUIT IN
MASSACHUSETTS
The U.S. Court of Appeals for the
First Circuit on August 31 issued a comprehensive,
68-page ruling (pdf) that reinstated a consumer protection lawsuit filed in
2005 on behalf of Maine
residents who smoked Marlboro Lights or Cambridge Lights manufactured by Philip
Morris USA, Inc. The lawsuit
contends that Philip Morris, USA Inc., and its parent company, Altria Group,
Inc., violated the Maine Unfair Trade Practices Law by engaging in unfair and
deceptive acts or practices.
Specifically, the plaintiffs allege that the company made affirmative
representations that some of its brands are “Light” and that they deliver
“Lowered Tar and Nicotine” when in fact they do not do so and the company knew
that they do not do so.
The lawsuit,
Good, et al. v. Altria Group, Inc., et al., was dismissed on May 25, 2006 by
U.S. District Court Judge John A. Woodcock, Jr., who ruled that the
Federal Cigarette Labeling and Advertising Act (FCLAA) pre-empts the
plaintiffs’ claims.
A similar lawsuit,
Aspinall v. Philip Morris, is
currently awaiting appeal in
Massachusetts
on the similar issue of whether the FCLAA pre-empts plaintiffs’ claims based on
Mass. General Law Chapter 93A, the consumer protection statute. Massachusetts,
like Maine, is in the First Circuit. The Aspinall appeal is to be
heard by the Massachusetts Supreme Judicial Court (the state's highest court,
which approved class certification in this
lawsuit in 2004).
Closely adhering to the U.S. Supreme court’s seminal
1992 ruling in
Cipollone v. Liggett Group, Inc. the First Circuit ruled that the FCLAA
pre-empts “only those claims based on a ‘requirement or prohibition based on
smoking and health under State law with respect to the advertising or
promotion’”.…of cigarettes. The
plaintiffs’ claims “allege that Philip Morris made fraudulent misrepresentations
in derogation of ‘a more general obligation – the duty not to deceive,’” which
would constitute a violation of the Maine Unfair Trade Practices Act.
Edward L. Sweda, Jr.,
Senior Attorney for the Tobacco Products Liability Project (TPLP) at
Northeastern University School of Law in Boston, was delighted with the First Circuit’s
ruling. “This decision revitalizes
litigation brought on behalf of victims of Philip Morris’ light cigarette scam.
The Good case now goes back to
the federal district court in Maine, while the chances of a dismissal of the
Aspinall case in Massachusetts are now extremely remote,”
Sweda said.
Mark Gottlieb, Director of TPLP, noted that "the series of
industry defenses in "light" cases stemming from the assertion that the U.S.
Federal Trade Commission somehow regulated the term "Lights" and "Lowered Tar
and Nicotine" are now collapsing as seen in the U.S. Supreme Court's unanimous
decision in Watson and now here.
The reason for this collapse is that the notion that the FTC regulated the
marketing of these products without ever issuing a regulation is utterly false.
The Illinois Supreme Court, which managed to get this completely wrong on scant
evidence, should be embarrassed for having
reversed the multi-billion
verdict in the only "light" class action to go to trail so far."
Light cigarette lawsuits have been filed in more
than 20 states throughout the country.
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