WASHINGTON — More than 45 million Americans are smokers, and nearly 85 percent of them buy “light” cigarettes such as Marlboro Lights, which are advertised as having lower tar and nicotine.
The Supreme Court, on the opening day of its term, heard arguments Monday on whether the tobacco industry can be held liable for allegedly perpetrating a massive fraud on the smoking public.
In recent decades, most smokers switched to light cigarettes, believing they posed less of a health danger. But studies have shown this common-sense view is wrong. Although machine tests showed light cigarettes emitted less tar when burned, smokers inhale about the same amount of tar when they puff on a light cigarette, the studies found.
The tobacco industry faces more than 30 class-action lawsuits from smokers and ex-smokers who seek billions of dollars in damages and claim they were fooled by the marketing of light and low-tar cigarettes.
But the justices sounded receptive to an argument from the cigarette makers that all these lawsuits should be thrown out because they conflict with the federal law that requires warning labels on cigarette packs.
That law shielded tobacco companies from any other “requirement respecting the promotion of cigarettes based on smoking and health,” Washington attorney Theodore Olson told the court. The former U.S. solicitor general was representing the Altria Group, the parent company of Philip Morris and the maker of Marlboro Lights.
His argument tracked a recent trend in the high court holding that products subjected to federal regulations are shielded from lawsuits filed under state law. In nearly every state, consumers who say they were fooled or cheated by a product maker can sue for damages.
In the case before the court, several smokers from Maine sued Altria under their state’s law against “unfair and deceptive” trade practices. They alleged they were misled by the marketing of light cigarettes.
Olson said their claim should be tossed out because “Congress wanted one uniform source of regulation of advertising of cigarettes,” not different rules established by states and jury verdicts.
But a lawyer for the consumers said Congress did not intend to wipe out lawsuits involving deceptive marketing. Lawmakers who set the warning labels in 1969 had “no intention whatsoever to immunize cigarette makers for false statements” about their products, David C. Frederick, told the justices.
At one point, Justice Samuel Alito suggested the real culprit was the Federal Trade Commission. The agency oversees the warning labels on cigarettes, he noted, and it allowed the cigarette makers to tout data from the machine tests indicating light cigarettes emitted less tar.
“If these figures are misleading, then you should have prohibited them a long time ago,” Alito told an FTC lawyer.
