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Suits allowed over ‘light’ cigarettes

Savage is a writer in our Washington bureau.

The Supreme Court cleared the way for a new era of tobacco litigation Monday, ruling that cigarette makers could be sued for allegedly deceiving smokers about the dangers of highly popular “light” cigarettes.

The decision allows class-action lawsuits to proceed in several states and opens the door to suits in other states.

Ten years ago, the tobacco industry agreed to a $206-billion settlement with 46 states to end lawsuits over the healthcare costs of smoking. But that agreement did not block new private lawsuits.

The decision also opens an avenue of litigation over advertising claims the industry made for its low-tar and -nicotine brands.

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More than 45 million Americans are smokers, and nearly 85% of them buy cigarettes that, like Marlboro Lights, are sold as having lower tar and nicotine. Smokers started switching to these cigarettes in the 1970s, thinking they were safer.

But when puffed by actual smokers -- not test machines -- the cigarettes yield about the same amount of smoke, tar and nicotine as regular brands. Although the filters have air holes, studies found that smokers tended to cover the holes with their lips and take larger and deeper puffs to inhale more nicotine.

The Federal Trade Commission told the court that the tobacco industry had known for at least 30 years that light cigarettes were not safer. It also said the use of labels such as “light,” “ultra light” or “low tar” did little but fool smokers into thinking they faced less of a health risk.

In the past, the Supreme Court shielded cigarette makers from being sued by smokers who said they were not warned about the dangers of smoking. Since 1969, federal law has required warning labels on cigarette packs, and the court in 1992 ruled that the law barred claims from smokers who said they were not warned about the health risks.

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In a 5-4 ruling Monday, the high court switched course somewhat and ruled that cigarette makers could be sued for deceptive advertising under state consumer-protection laws.

Justice John Paul Stevens said those who sold products had a “duty not to deceive” the public through their advertising or marketing.

Justices Anthony M. Kennedy, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined him in the case of Altria Group vs. Good.

Anti-smoking activists called the ruling a breakthrough.

“This is a real threat to the [tobacco] industry,” said Edward L. Sweda Jr., counsel for the Tobacco Products Liability Project at Northeastern University in Boston. “The companies’ wrongdoing is crystal-clear. They said one thing and knew full well it was not true. They have done everything possible to keep these cases from going to trial.”

Sweda said class-action lawsuits were set to go forward in Massachusetts, Minnesota and Missouri.

Five years ago, a state judge in Illinois handed down a $10.1-billion fraud verdict against Philip Morris in the marketing of light cigarettes. But the Illinois Supreme Court threw out the verdict on the grounds that it was barred by the federal cigarette warning law.

It was the rule of law rejected Monday by the high court, but it was too late to revive the suit.

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“This decision eliminates what has been the first line of defense for these [tobacco] companies,” said Chicago lawyer George A. Zelcs, who brought the suit in Illinois.

Business lawyers had hoped the court would block all such claims.

“I’m afraid for the tobacco industry; this means it is back to the litigation drawing board,” said Robin Conrad, a vice president of the U.S. Chamber of Commerce. Her group had sided with the tobacco companies.

Philip Morris USA, a division of the Altria Group, makes Marlboro Lights.

“We continue to view these cases as manageable, and the company will assert many of the strong defenses used successfully in the past to defend against this very type of case,” Murray Garnick a lawyer for Altria, said in a statement.

It is far from certain whether lawsuits over light cigarettes will lead to large verdicts, said David Vladeck, a law professor at Georgetown University. He said judges in some states had rejected class-action suits and allowed only cases on behalf of individual smokers. And the damages, if any, may be tied to the cost of cigarettes, not to health effects.

The court’s ruling came as a surprise to some observers because the justices had recently read federal regulatory laws so broadly as to block lawsuits under state laws. For example, the court in February said federal approval for new medical devices barred suits claiming the devices were defective. The vote was 8 to 1.

Still pending before the court is a case that tests whether drug makers can be sued by patients who are injured or killed. Bush administration lawyers joined the pharmaceutical industry in arguing that approval of drugs by the Food and Drug Administration preempted or blocked suits against drug makers.

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The case decided Monday began when several smokers in Maine sued the Altria Group, alleging it had deliberately deceived them in the marketing of Marlboro Lights and Cambridge Lights. The company said the suit should be thrown out, but the U.S. Court of Appeals in Boston refused.

Last year, former U.S. Solicitor General Theodore B. Olson appealed the issue to the Supreme Court on behalf of Altria. He said the outcome would determine the fate of “dozens of pending lawsuits in which plaintiffs are alleging billions of dollars in potential liability.”

The court voted to hear the appeal, but Olson fell one vote short of a majority.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. dissented.

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david.savage@latimes.com


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