Smoke 'Em If Ya Got 'Em


The Supreme Court kicked off its fall term today with oral arguments in Altria Group v. Good, a case that stems from a lawsuit filed by a group of Maine smokers claiming that light cigarette advertisements and packages contained false and deceptive information. Altria, the parent company of Philip Morris, argued that since its marketing is consistent with federal cigarette labeling laws, the state suits have no business going forward. Legal Times reports that the Court seemed to agree:

Representing Altria was former Solicitor General Theodore Olson, who was arguing his 50th case before the Court. Olson appeared to convince the Court that the federal labeling law expressly precludes state suits over "smoking and health" issues. If states are allowed to impose different restrictions on cigarette advertising through lawsuits or other means, Olson said, "national advertising becomes impossible."

There was also a fairly strong exchange between Justice Samuel Alito and Assistant to the Attorney General Douglas Hallward-Driemeier, who was there representing the federal goverment and arguing in favor of the state suits. Here's a portion from the Court's transcript:

JUSTICE ALITO: Would it be—would it be unfair to say that for quite sometime now, nearly 40 years, the FTC has passively approved the placement of these tar and nicotine figures in advertisement?

MR. HALLWARD-DRIEMEIER: With respect to the—I want first to take issue with the question of "approved," because I think that it—it draws an analogy to the FDA context, to Riegel and the like, and that is not the nature of what the Federal Trade Commission does. It doesn't stand—

JUSTICE ALITO: Well, you passed a rule to require it, did you not?

MR. HALLWARD-DRIEMEIER: We proposed a rule to require the disclosure of tar and nicotine.

JUSTICE ALITO: And you withdrew that after the companies voluntarily agreed to place the information on the ads.



JUSTICE ALITO: The FTC's position seems to me incomprehensible. If these figures are meaningless, then you should have prohibited them—are misleading, you should have prohibited them a long time ago. And you've created this whole problem by, I think, passively approving the placement of these figures on the—in the advertisements. And if they are misleading, then you have misled everybody who's bought those cigarettes for a long time.

It's hard to argue with Alito here. How can the federal government maintain that the cigarette companies are responsible for what the feds themselves have required and approved for 40 years?

Back in July, Jacob Sullum looked at the FTC's "complicity in making tar and nicotine yields ubiquitous in cigarette ads."