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August 16, 2004


Those "light" cigarettes, Part Deux

Those who have followed tobacco suits in this space, and on Overlawyered.com, are well aware of last year's $10.1 billion verdict against Philip Morris in Madison County, Illinois, for alleged false advertising surrounding the marketing of "light" cigarettes as "safer" alternatives to higher-tar brands.

Now, a similar suit in Massachusetts is in the news. On Friday, the Commonwealth's Supreme Judicial Court by a 4-3 vote permitted the certification of a class making substantially the same allegations as the in the Madison County case. The court's majority determined that "a class action is not only an appropriate method to resolve the plaintiff's allegations, but, pragmatically, the only method whereby purchasers of Marlboro Lights in Massachusetts can seek redress for the alleged deception."

The Massachusetts case is the first in which a state's highest court has certified a class over a cigarette manufacturer's marketing of light cigarettes. The Madison County court's certification decision is currently on appeal at the State Supreme Court; no such ruling has yet been issued in the 11 other states in which similar suits are pending.

The "deceptive marketing" claim is a clever device to get class status for cigarette claims. Unlike traditional health-related claims, in which each individual plaintiff's case differs, the marketing claims focus instead on the economic costs of cigarettes and thus are more defensibly aggregated. Of course, the "Light" brands aren't priced higher than the comparable premium brands (in the case of Philip Morris, Marlboro "Reds"). As far as I can figure it, the claim is that, but for the "deceptive marketing," at least some of the class members would have quit smoking rather than smoking the "light" alternative, and thus the class as a whole is entitled to reimbursement for their smoking expenses.

To me, that sounds like one of those somewhat-plausible-in-theory but stupid-in-practice approaches that have so permeated the modern law of tort. Ahh, for the good old days of proximate cause.

Anyway, my head's beginning to hurt. I'm going to enjoy one of my new lower-sugar, lower-carb cans of C2. Or maybe two...

Posted by James R. Copland at 11:58 AM | TrackBack (2)



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