Tobacco

The Litigatable Lightness of Cigarettes

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Today the U.S. Supreme Court ruled that the Federal Cigarette Labeling and Advertising Act does not pre-empt a Maine lawsuit that accuses tobacco companies of misleadingly touting "light" cigarettes as safer than regular cigarettes. The 1965 law, which required cigarette manufacturers to put health warnings on their packages, also barred any other "requirement or prohibition based on smoking and health…imposed under State law with respect to the advertising or promotion of any cigarettes." The five-justice majority concluded (PDF) that the Maine Unfair Trade Practices Act, as applied to the marketing of "light" cigarettes, does not amount to such a requirement or prohibition.

As I've said before, the "light" cigarette fraud (assuming it does in fact amount to that) is one in which the federal government has been entangled from the beginning. This case also illustrates a problem created by the labeling law: Both the warnings themselves and the clause that has been read to shield the cigarette manufacturers from liability have encouraged them to be less honest than they otherwise would have been compelled to be.

Damon Root noted the oral arguments in this case a couple of months ago.

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  1. Light cigarettes cause less cancer in exactly the same that what light beer causes less drunkenness. Duh!

  2. Anytime a company complies with a regulation or posts a warning label, their compliance should be a defense against liability.

    The state, by establishing the regulation or the warning label, has said, has it not, that this is the standard of care, or this is adequate notice of the hazards? Since a compliant company has met the standard of care and/or given adequate notice of the hazards, what basis is there for holding them liable?

  3. Both the warnings themselves and the clause that has been read to shield the cigarette manufacturers from liability have encouraged them to be less honest than they otherwise would have been compelled to be.

    There’s about the same level of evidence for this statement as the toxic effects of 2nd hand smoke. Those poor, poor tobacco companies would never ever think of misleading their customers if it weren’t for those goshdarn labeling requirements.

  4. R C Dean,

    The regulation required them to provide information.

    It did not require them to market their product as more healthy.

    It seems that the suit is not about providing information, it is about how the information was used. Maine’s law is about deceptive use of information. The suit may lose, but I don’t see how the federal regulation to provide information is a shield against using that information deceptively.

  5. The state, by establishing the regulation or the warning label, has said, has it not, that this is the standard of care, or this is adequate notice of the hazards?

    Not exactly. As an example, imagine if the state required businesses to post notices that said “Warning: These Steps May Be Icy”. That would not release the store owner from liability from falls on icy steps.

  6. As an example, imagine if the state required businesses to post notices that said “Warning: These Steps May Be Icy”. That would not release the store owner from liability from falls on icy steps.

    It should. If the state is going to require that a notice be posted, why is that notice not deemed adequate warning of the hazards that it addresses?

    Now, if there is not mandatory posting, I think you could bring a case arguing that the notice wasn’t adequate. But if the notice meets the requirements imposed by the state, why wouldn’t it be deemed to be adequate?

    The regulation required them to provide information.

    It did not require them to market their product as more healthy.

    Yeah, I know, this isn’t the best case for me to trot out my hobbyhorse.

  7. I’d like to see every tobacco company refuse to do business in Maine. Watchiung the tax collectors howl would be instructive.

  8. I actually agree with TAO here.

    A fraud is committed when someone misrepresents a material fact. Let’s say the labeling regulation made them post the “ingredients” and level of tar on the box of cigs. And they did that. But in the ads they said “New Marlboro Lights, All the flavor, half the tar and twice the health!” implying that these cigarrettes were healthy. And lets say they knew better.

    Not they are in compliance but they are still misrepresenting a material fact they know to be false as true. I think they are still liable.

  9. Of course you agree with him, he’s on the liberal side of this issue.

  10. All the flavor, half the tar and twice the health!” implying that these cigarrettes were healthy. And lets say they knew better.

    I don’t personally remember ad claims that light cigarettes were healthy. Less harsh and dangerous than full flavor smokes, yes. Government measurements certainly provided evidence that Newport Lights were less bad (better) for your health than regular Newports.

    Some of these “healthy” light ciogarette adds should be floating around on the internet, no? Let me see some that claim that light cigarettes are healthy. Please send copies of these dispicable ads to my E-mail or post links right here at H&R. Thank you.

  11. Shown any ad (or packaging) for light cigarettes, a rational, honest, reasonably intelligent individual would be easily capable of determining whether the company was engaging in fraudulent misrepresentation.

    I also think any rational, honest, reasonably intelligent individual will be promptly dismissed from the pool of jurors.

    Personally, I don’t ever recall seeing anything that claimed, implied, suggested, or even hinted that light cigarettes were any healthier than the regular variety.

  12. I’ll check this thread tomorrow for all the evidence of fraudulent light cigarette ads.

    Should be hundreds, right?

  13. cunny
    It’s liberal to hold people responsible for fraud? Do you think it’s liberal whenever anyone wins any lawsuit? Or is the general idea of tort liability a liberal one?

  14. J sub D
    My hypo was just that, a hypo presenting a case where someone follows a law or regulation but should still be held liable.

    “The lawsuit said cigarettes like Marlboro and Cambridge Lights are deceptively designed and marketed, and that a smoker of those brands consumes the same amounts of tar and nicotine as a smoker of regular cigarettes.”

    Apparently the issue was not that they represented the lights as healthier, but that they actually misrepresented the ingredients (actually the issue before the SCOTUS was the more arcane one of whether a suit over this was pre-empted by the federal law).

  15. I really would think that tort law would be a pillar of any Libertopia. It’s what is supposed to replace all the regulatory stuff.

  16. Apparently the issue was not that they represented the lights as healthier, but that they actually misrepresented the ingredients (actually the issue before the SCOTUS was the more arcane one of whether a suit over this was pre-empted by the federal law).

    Bonus points if you can tell me who did the measurements of tar and nicotine that was in the ads and on the packs?

    As near as I can tell they are being sued for repeating government collected data. That’s why I’m so curious about these allegedly deceptive ad practices that I don’t remember.

  17. Of course you agree with him, he’s on the liberal side of this issue.

    I am? As far as I can tell, RC Dean asked a straightforward question and I provided him a factual answer: compliance with federal regulations does not mean that you are within the standard of care to release you from civil liability in tort law.

    Forgive me for asking a stupid question, but aren’t light cigarettes actually “healthier” than regular ones?

    I actually disagree with MNG’s conclusion in this hypo:

    “New Marlboro Lights, All the flavor, half the tar and twice the health!” implying that these cigarrettes were healthy. And lets say they knew better.

    They never made a claim that they were healthy, just that they were healthier. I find that to be sneaky Madison-Avenue-style advertising and personally shady, but I do not view it as constructively fraudulent, any more than “half-the-fat foods” are fraudulent for advertising themselves as healthier than full-fat alternatives.

    It’s true they are healthier, it’s just not true that they are healthy (whatever that means).

  18. Just for everyone’s information, here is a snippet from the opinion (http://www.supremecourtus.gov/opinions/08pdf/07-562.pdf page 3)

    Specifically, [the Maine ‘light smoker’ respondents] allege thatpetitioners’ advertising fraudulently conveyed the mes-sage that their “light” cigarettes deliver less tar and nico-tine to consumers than regular brands despite petitioners’ knowledge that the message was untrue.

    This, if correct (it’s from the start of the majority opinion written by Stevens, and goes onto to say the facts are in dispute) is a very different set of facts then ‘they said their cigarettes were healthy’. Because I do seem to remember cigarettes as being advertised as having less tar (but not wrt nicotine). So if they said ‘less tar’ and they did not provide ‘less tar’ I would say they have a case.

    The case itself seems to more of a jurisdictional fight, i.e does federal law that requires labelling cigarettes pre-empt any and all state regulation. I used to be more of a commerce clause supremecist, although not at all liking stuff like Wickard and Raich, but generally believing that federal law premeption creates more efficicient markets by eliminated a patchwork of over 51 different sets of regulations. Recently, however, I’m not so sure. Especically with Wickard and Raich, trying to restore state soveriegnty seems to almost a important end in itself.

  19. Ah, I see MNG already said this in his 7;35

  20. I’ve read some stuff by anti-smoking folks who claim that they are actually no healthier, but my brief perusal of that stuff made me also think that their claims were a little fishy, for example they might have been simply implying that a person who buys lights will just smoke more cigarettes until they get the same amount of nicotine as they would from a non-light cigarette. In my mind at least this is not fraudelence.

    On the other hand they claim that internal company documents show that the management knew that people bought “light” brands because they thought there was a health advantage, that they then purposely played to this and that they knew that they were in actuality not only not healthier but not even really “lighter.”

    I’m of the opinion that just because they complied with a labeling regulation there still COULD well be liability, but from what I’ve read I’m not sure that were I on the jury in this actual case I would find it.

    Here’s some stuff on this (I don’t claim it’s the best the anti-smoking folks can do or the worst or if it is akin to the suit at issue):
    http://tobaccofreekids.org/research/factsheets/pdf/0130.pdf
    http://cancercontrol.cancer.gov/tcrb/monographs/13/

    btw-J sub D the ad for “True” light cigs quoted in the first might fit the bill of what you are talking about

  21. Perusing both of those sources, I would find that the advertising is slick and perhaps misleading but does not rise to the level of fraud. Citing some of the ads from MNG’s first link:

    A 1952 Viceroy ad was more
    blunt: “Filtered Cigarette Smoke is Better for Your Health”

    Better for your health =/= good for your health.

    “All the fuss about smoking got me thinking I’d either quit or smoke True. I smoke True.
    The low tar/low nicotine cigarette. Think about it.”

    That sounds like a personal testimony. Whatever the individual reading the ad got out of it is not RJR’s fault.

    Like I said, there is slick wording present in almost every ad, but constructive fraud requires a lot more than that. The cigarette companies are convenient punching bags / ATMs for greedy state and federal governments.

  22. I don’t personally remember ad claims that light cigarettes were healthy. Less harsh and dangerous than full flavor smokes, yes.

    TAO and J sub,

    The suit says that despite claims they are healthier (people saying that the suit alleges that they said “healthy” are attacking a straw man), when they are not in fact healthier. I was a regular Camel Lights smoker until recently. I pretty much knew that the “Lights” were in reference to the flavor, not to the cancer giving powers.

    Notice this part in the original post:

    pre-empt a Maine lawsuit that accuses tobacco companies of misleadingly touting “light” cigarettes as safer than regular cigarettes.

    So far every comment defending the tobacco companies has conceded that they advertised lights as safer. The Maine suit alleges that they were misleadingly advertiser as safer, when they are not safer.

  23. Oops, the last paragraph should be outside the blockquote.

  24. Does anyone know if there are any actual studies about light cigarettes and cancer or other smoking-related disease rates? Or is this all just speculation?

  25. As far as I can tell, RC Dean asked a straightforward question and I provided him a factual answer: compliance with federal regulations does not mean that you are within the standard of care to release you from civil liability in tort law.

    I wasn’t so much asking a question about whether regulatory compliance is a defense to civil liability; I know good and well its not. I was more making a proposal that it should be, and asking why not.

    To take this case as an example, I don’t think making a mandatory disclosure should be a defense against fraud based on other statements.

  26. Mo,

    One light cigarette, smoked in the same manner as a full flavor cigarette delivers less tar and nicotine to the lungs. That is less unhealthy, or escewing double negatives, healthier.

    Light beer gets you less drunk than regular beer. Yeah, Bud Light drinkers may just drink more to get the desired effect, but the statement is still true.

    MNG, thanks for the links. It appears that private industry was way ahead of the regulators, doesn’t it? I still think the lawsuit is BS, but I’ll admit that I think nearly every tobacco lawsuit is BS. I’ve yet to find a smoker who was unaware of the dangers inherent in inhaling combustion products prior to starting cigarettes.

  27. J sub,
    The difference between the light beer and light smokes case is that you can’t drink a light beer in such a manner that the amount of alcohol is affected. People smoke cigarettes in ways that tar and nicotine are the same for light and full flavor cigs.

    I also think most tobacco suits are b.s., but this one strikes me as pretty fair one. Tobacco companies saying that certain cigarettes are healthier than others when their own internal documents and research contradicts it is pretty standard fraudulent advertising.

  28. I also think most tobacco suits are b.s., but this one strikes me as pretty fair one. Tobacco companies saying that certain cigarettes are healthier than others when their own internal documents and research contradicts it is pretty standard fraudulent advertising.

    You may be right. The tobacco companies would have been on assailable ground if they had just printed the government figures and let people assume the rest. They knew (not illegal), withheld the info (probably not illegal), and said the opposite (probably illegal).

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