Light Cigarette Purchasers’ Consumer Class Action Allowed to Proceed

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

A class of light cigarette purchasers could pursue Minnesota consumer protection claims against Marlboro Light manufacturer Philip Morris based on allegedly deceptive business practices and false advertising, according to a Minnesota appellate court.

The cigarette purchasers sought to recoup money they spent on Marlboro Lights under the Minnesota consumer protection statutes and to represent a class of Minnesota residents that purchased the cigarettes between 1972 and November 2004.

Light cigarettes were marketed as having less tar and nicotine than regular cigarettes and were less likely to cause lung cancer.

Benefit to Public

Minnesota allows a private person injured by a violation of a Minnesota consumer protection statute to bring a civil action and recover damages, together with costs and disbursements including attorney’s fees and other equitable relief. However, the statute only allows claims that are shown to benefit the public.

Because Philip Morris made the allegedly deceptive statements to the public at large for a long period of time, the cigarette purchasers’ claim met the benefit of the public requirement.

Philip Morris argued that the claims should be dismissed because any benefit to the public that the case could possibly confer was already distributed to the public.

The Minnesota Attorney General had already pursued the same claims based on the same alleged deceptive business practices and obtained a permanent injunction against Philip Morris. Thus, the public had already been benefited, according to Philip Morris.

Private Suits After Attorney General

However, the court was unwilling to narrow the Minnesota Duties of the Attorney General statute to prohibit consumers from bringing private suits after the Attorney General. The statute allows private citizens to recover damages in addition to other remedies available by law, including the injunction the Attorney General was awarded in the previous case.

Consumers may meet the public benefit requirement even after the government acts to address the same misrepresentations.

Finally, the court rejected Philip Morris’ argument that the consumer protection claims were barred by the Tobacco Settlement release signed after the Attorney General received the injunction. Because the purchasers were not agents or representatives of the state, they were not barred from bringing the claims.

The decision is Curtis v. Altria Group, Inc., Minn. App. Ct., CCH State Unfair Trade Practices Law ¶32,180.

Further information regarding CCH State Unfair Trade Practices Law is available here.

“Light” Cigarettes Class Action to Advance Despite Preemption, Exemption Claims

This posting was written by Jody Coultas, Editor of CCH State Unfair Trade Practices Law.

Philip Morris Co. failed to prove that a class action claiming that the marketing of “light” cigarettes violated the Massachusetts Consumers Protection Act (CPA) was barred by the statute’s exemption for actions permitted by a regulatory board or officer, the Massachusetts Supreme Judicial Court has ruled.

A group of Marlboro Light cigarette consumers brought a class action under the CPA against cigarette manufacturer Philip Morris, asserting that Philip Morris engaged in an unfair or deceptive act by using the descriptors “light” and “lower tar and nicotine” on its packaging.

Preemption; Statutory Exemption

Philip Morris’s motion for summary judgment asserted that the class action was (1) preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA) because the claims fell under the provision that forbids states from requiring additional health warnings on cigarette packaging and (2) barred by the exemption contained in the CPA because the Federal Trade Commission gave Philip Morris permission to use the descriptors in question.

In light of the Supreme Court ruling in Altria Group, Inc. v. Good (CCH Advertising Law Guide ¶63,232 and CCH State Unfair Trade Practices Law ¶31,749), the court denied Philip Morris’s preemption argument. The Supreme Court in Good held that the FCLAA did not preempt claims based on “light” descriptors brought under state consumer protection laws.

Furthermore, the class action was not barred by the exemption provision of the CPA, according to the court. The exemption provision states that the CPA is not applicable to “transactions or actions otherwise permitted … by any regulatory board or officer acting under statutory authority of the commonwealth or of the United States.”

In this case, Philip Morris argued that the FTC permitted the use of the “light” descriptors on the packaging for Marlboro Lights. The court concluded, however, that Philip Morris did not present any evidence that the FTC affirmatively permitted the practice in question because it did not point to any affirmative action by the FTC that affirmatively permitted the use of the descriptors.

Because Philip Morris did not meet the heavy burden of supporting the motion for summary judgment, the class action was allowed to proceed.

The March 16 decision in Aspinall v. Philip Morris, Inc., will appear in both CCH Advertising Law Guide , CCH State Unfair Trade Practices, and CCH Trade Regulation Reporter.