High Court Hears Argument in “Light” Cigarette Case

This posting was written by John Scorza, CCH Washington Correspondent.

The U.S. Supreme Court heard argument on October 6 on the question of whether smokers can sue a tobacco company under a state law for deceptive advertising or whether the suit should be preempted by federal law. Smokers alleged that a tobacco company made fraudulent misrepresentations in violation of the Maine Unfair Trade Practices Act by advertising and promoting cigarette brands as “light” and having “Lowered Tar and Nicotine.”

Preemption of State Law

The question presented for review, according to the petition, was whether state law challenges to FTC-authorized statements regarding tar and nicotine yields in cigarette advertising are expressly or impliedly preempted by federal law.

At issue is a decision of the U.S. Court of Appeals in Boston (2007-2 Trade Cases ¶75,877), rejecting the tobacco company's contentions that the smokers' state law claims were impliedly preempted by the FTC's oversight of cigarette advertising and barred by the Maine statute's exemption for actions otherwise permitted under laws as administered by any regulatory board or officer acting under the statutory authority of the United States. The company argued that the Federal Cigarette Labeling and Advertising Act bars such suits brought under state laws.

Uniform Advertising Standard

Arguing on behalf of the tobacco company, former U.S. Solicitor General Theodore Olson said the federal law is in place to ensure a uniform advertising standard. Different requirements by the various states might cause “diverse, confusing advertising,” Olson told the court. Congress clearly wanted “one uniform source of regulation of advertising of cigarettes with respect to smoking and health.”

Justice David Souter questioned Olson’s claim, saying that it is well-accepted that the FTC’s regulation of deceptive advertising does not exclude state regulation. Justice Stephen Breyer also noted that Congress has not by tradition set aside state laws in the area of false advertising.

Appearing on behalf of the government, Assistant Solicitor General Douglas Halward-Driemier argued in favor of state authority—in addition to the authority of the FTC—to regulate deceptive claims.

David C. Frederick, attorney for the smokers who brought the suit, challenged Olson’s position that the FTC has sole regulatory authority to regulate advertising with respect to smoking and health. He noted that studies have found there to be no difference in the amount of tar and nicotine inhaled by smokers of light cigarettes and smokers of regular cigarettes.

Duty Not to Deceive

“Our contention here is that a generalized duty not to deceive is not a requirement based on smoking and health,” Frederick asserted. “It is based on a duty not to deceive.”

Chief Justice John Roberts and Justice Antonin Scalia were among the justices who questioned Frederick’s position.