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U.S. Supreme Court

Justices Blame FTC for Misleading Consumers about Light Cigarettes

Posted Oct 6, 2008 11:28 AM CDT
By Debra Cassens Weiss

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During oral arguments today, two U.S. Supreme Court justices blamed the Federal Trade Commission for misleading consumers about the dangers of light cigarettes. The arguments did not bode well for smokers suing tobacco makers for making misleading advertising claims about the cigarettes’ lower levels of tar and nicotine.

SCOTUSblog reports on the comments by Justices Samuel A. Alito Jr. and Antonin Scalia in a post entitled “A rough day for the FTC.” Alito and Scalia said the FTC had known for years that ads promoting light cigarettes as more healthy were based on flawed claims, but took no steps to stop them.

The FTC “created this whole problem,” Alito told a government lawyer arguing for the FTC. “You have misled everyone who has bought these cigarettes for a long time.”

The case, Altria Group v. Good, asks whether FTC regulations condoning the use of “light” and “low tar” in tobacco advertising pre-empt state tort claims against the makers of light cigarettes. Smokers suing Altria and its subsidiary Philip Morris USA contend the companies knew that smokers compensated for lower tar and nicotine by taking longer puffs, the Associated Press reports.

The lawyer for the tobacco makers focused his brief on arguments that the state lawsuits were expressly pre-empted under laws on cigarette labeling and marketing, SCOTUSblog says. The companies contend cigarette labeling rules expressly bar lawsuits that involve smoking and health.

Government lawyers filing an amicus brief (PDF) on behalf of smokers addressed only an implied pre-emption issue, arguing there was no implied pre-emption under FTC policies requiring disclosure of tar and nicotine.

“From the negative comments, and the overall tenor of the hearing, it appeared that the industry had gone a long way toward thwarting such state lawsuits—particularly, on the express pre-emption side of the case,” the blog concludes.

The Associated Press story also said the arguments appeared to favor tobacco makers.

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