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.

MR. HALLWARD-DRIEMEIER: That's correct.

[…]

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."

Comments

[Naga Sadow]

For a second there, I almost lit a joint.

[Warren]

How can the federal government maintain that the cigarette companies are responsible for what the feds themselves have required and approved for 40 years?

What are you? Stupid? Big tobacco is bad Damon. Is that so hard to understand?

[gorgonzola\'s foil]

The libertarian analysis in a states-rights issue is for the federal regulator to be more active? Huh?

[hotsauce]

I'm not familiar with the details of this case, but it seems that requiring disclosure (or withdrawing the requirement after the companies voluntarily disclose them) of certain figures does not ensure that those figures are going to be accurate or not misleading.

[Shirley Knott]

Since when is "state's rights" a libertarian issue?
States have no rights, only individuals do.
Individuals have the right to look for enforcement of their rights wherever it may be found.
The notion that somehow states are preferable to 'the feds' is worse than ludicrous, it is profoundly anti-libertarian.
And the notion that somehow states are 'less likely' to trample individual citizen's rights than 'the feds'? Puhleeze. Violations of individual rights are violation of individual rights regardless of their origin.

no hugs for thugs,
Shirley Knott

[The Extispicator]

How can the federal government maintain that the cigarette companies are responsible for what the feds themselves have required and approved for 40 years?

Because we're the Feds, Bitch. Bend over and take it!!

[kevrob]

The libertarian analysis in a states-rights issue is for the federal regulator to be more active? Huh? - gorgonzola's foil

Not quite right, GF. I prefer the least intrusive regulatory regime, if there should be one at all. Having both the states and the feds regulate rarely leads to that.

Statists long championed federal preemption of state regulations because they expected a "race to the bottom." Your state might have looser water pollution rules than mine, tempting Acme Industrial Effluent to move there, costing my neighbors their jobs in the sludge industry. Setting up the Federal EPA was supposed to slow that sort of thing down.

One of the telling arguments for ratifying the Constitution was to allow for one national market, rather than 13 (or 50.) There can be local regulation where Congress specifically steps aside in favor of the states. A good example of that is the insurance business. What doesn't make sense are conflicting state and federal rules on the same subject.

Kevin

[The Extispicator]

hotsauce,

The suit does not allege that the companies misreported the levels. The suit claims that by reporting the levels, the companies implied that lighter cigarettes are safer.

[hotsauce]

Thanks, Ex.

[Kolohe]

If states are allowed to impose different restrictions on cigarette advertising through lawsuits or other means, Olson said, "national advertising becomes impossible."

This is an extremely weak argument. (and I'm both a MO and PM shareholder). Lots of ads say 'offer not good in xx' or have all that fine print to give provisos for certain states.

But most of all, we have currently two massive organizations enganged in nationwide multi-million dollar ad campaigns. And yet each is perfectly able to tailor particular ads to not only individual states, but also to individual metro areas within that state.

[J sub D]

As a cigarette smoker (down to 6-8 a day) I would like to beat the crap out of anybody who sues a tobacco company for their own dumbass decision to start and continue smoking, a practice that has been commonly known to be unheathful for more than a fucking century.

Assistant to the Attorney General Douglas Hallward-Driemeier, who was there representing the federal goverment and arguing in favor of the state suits.

This would be a Bush administration appointee, wouldn't it? It is certainly hard to have much respect for the red team considering their performance this century.

[Brandybuck]

The libertarian analysis in a states-rights issue is for the federal regulator to be more active? Huh?

The Libertarian? analysis is that neither the Feds nor the states may trump the rights of individuals. It's not about states' rights it's about individual rights.

But that said, this case has a knothole in it. It's not okay to deliberately mislead the consumer. It's perfectly libertarian for the law and courts to side with the victim of misrepresentation. I'm not at all convinced that there is misrepresentation in this case, but it is legitimate grounds for a lawsuit. But what if the misrepresentation was approved by the government? Does a libertarian side with one government entity who wants to restrict advertising, or with the another government entity who is sanctioning misrepresentation>?

[hotsauce]

The notion that somehow states are preferable to 'the feds' is worse than ludicrous, it is profoundly anti-libertarian.

It's more libertarian than you think. The smaller the geographic scope of any law or regulation, the more libertarian. Thus, laws or regulations governing only individuals and their justly acquired property > city laws and regulations > county laws and regulations > state laws and regulations > national laws and regulations. The larger the geographical scope, the more difficult it is to avoid onerous or unjust laws.

[SugarFree]

The suit does not allege that the companies misreported the levels. The suit claims that by reporting the levels, the companies implied that lighter cigarettes are safer.

Good thing there are no historic parallels between the labeling and banning of smoking and the movement to force calorie information disclosure on restaurants.

[R C Dean]

How can the federal government maintain that the cigarette companies are responsible for what the feds themselves have required and approved for 40 years?

Easy peasy:

"We hereby declare that the cigarette companies are responsible for what the we have required and approved for 40 years. So let it be written, so let it be done."

The national power to regulate interstate commerce actually has its libertarian side, via the "dormant" commerce clause. The dormant commerce clause pre-empts state regulation that burdens interstate commerce. Pre-empted regulation is no regulation, hence a freer national and local market. That's a Good Thing.

[Naga Sadow]

Well, SugarFree, at the time in question they said such parallels were silly. I'm inclined to believe the authortahs.

[Kolohe]

The national power to regulate interstate commerce actually has its libertarian side, via the "dormant" commerce clause. The dormant commerce clause pre-empts state regulation that burdens interstate commerce. Pre-empted regulation is no regulation, hence a freer national and local market. That's a Good Thing.

I used to be 100% behind this point of view, but am now around 75% or so. There is a place for state sovereignty. Pre-emptions like Wickard & Raich are not Good Things.

[joshua corning]

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

Wait, are we talking about sub-prime mortgages?

[The Angry Optimist]

Pre-emptions like Wickard & Raich are not Good Things.

Those aren't properly viewed in the lens of the "dormant commerce clause"' Wickard is the decision that practically made the Commerce Clause what it is.

[Kolohe]

Those aren't properly viewed in the lens of the "dormant commerce clause"' Wickard is the decision that practically made the Commerce Clause what it is.

I'm probably mixings my terms & cases then. But I read RC Dean as being commerce clause uber alles, to which I disagree (but not to the point of taking a complete opposite position)

[Thomas Paine\'s Goiter]

It seems to me that Alito is opening up the Fed's pandora's box.