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Opening Pandora’s pack

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It’s tempting to judge a U.S. Supreme Court decision by whether it favors the “good guys.” By that populist standard, the court made the right call this week when it ruled 5 to 4 that tobacco companies could be sued in state courts for minimizing the health dangers of “light” cigarettes. But by more important measures -- including basic fairness and a respect for Congress’ power over interstate commerce -- the majority got it wrong.

The question before the court wasn’t whether cigarettes are harmful. It was whether Altria Group, the parent firm of Philip Morris, could be sued under Maine’s Unfair Trade Practices Act for deceptively labeling some of its cigarettes “light” and “lowered tar and nicotine.” The alleged deception wasn’t that the labels misstated the chemical contents of the cigarettes, but rather that the company knew that smokers would compensate by inhaling more deeply or smoking more often.

Whatever the merits of that theory, Altria rightly argued that state lawsuits were preempted by Congress’ decision to impose a national approach to warning consumers about the dangers of smoking. The federal labeling act says: “No requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarette.”

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In ruling that Altria could be sued, the court bypassed that plain language and engaged in some legal hair-splitting. Writing for the majority, Justice John Paul Stevens concluded that the federal monopoly on warning labels about “smoking and health” doesn’t prevent state lawsuits accusing tobacco companies of making fraudulent statements. As we have argued before, that is a distinction without a difference. If the label “light” was deceptive, it was because it underestimated the health dangers.

Congress adopted a national standard for cigarette warning labels for two reasons: to protect citizens of states that wouldn’t require such warnings of their own, and to spare tobacco companies, whose products are marketed nationally, the burden of complying with different state standards. Monday’s decision neutralizes the second objective. We don’t often agree with Justice Clarence Thomas, but he was right to warn in his dissenting opinion that the ruling “will have the perverse effect of increasing the non-uniformity of state regulation of cigarette advertising, the exact problem that Congress intended ... to remedy.”

Congress can overturn this decision by making it clearer that it intends to prohibit state lawsuits like the one in Maine. It might combine that legislation with even tougher warning labels specifically rebutting the false promises of “light” and low-tar cigarettes. But unless it is prepared to ban cigarettes outright, cigarette warning labelssome smokers will continue to follow the saying familiar to military veterans: “Smoke ‘em if you got ‘em.”

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