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`Light' and law

September 27, 2006

AN APPEALS COURT MUST DECIDE whether, as a matter of law, a federal judge in Brooklyn erred in refusing to block a class-action racketeering lawsuit against tobacco companies on behalf of millions of smokers of "light" cigarettes. But lay people are likely to scratch their heads over District Judge Jack B. Weinstein's decision to let this lawsuit proceed -- especially when they learn that the damage supposedly caused by the tobacco industry was to smokers' wallets, not their lungs.

That's right, the lawsuit certified by Weinstein alleges not that smokers of "light" cigarettes were made sick by the cigarettes they purchased but that they were misled into thinking that "light" and "low tar" cigarette designations meant they were safer. It's much easier to allege that people were duped by marketing than to show that they got sick from smoking. The lawyers bringing the suit seek to force tobacco companies to disgorge their "ill-gotten gains."

In allowing the suit to proceed, Weinstein referred to the plaintiffs' legal theory as "elegant." That's an understatement. How do you prove that millions of people bought a specific kind of cigarette because of a specific claim made on its behalf? And how do you hold tobacco companies liable for marketing campaigns that were regulated by the government? Such questions led the Illinois Supreme Court to throw out a $10-billion verdict against Philip Morris USA Inc. in a similar case last December.

Because this is a class-action suit, most "victims" will not have to come forward to explain how they specifically were snookered into paying for cigarettes that were more harmful than advertised.

If Weinstein isn't overruled, his decision will be a windfall for lawyers, a disaster for tobacco companies -- which already have agreed to pay out billions of dollars as part of a settlement with state attorneys general -- and a travesty for the cause of due process.

This case has little to do with ameliorating the health effects of smoking. In a refreshingly candid section of his opinion, Weinstein noted that "this, and other suits like it, probably have had only a minimal value in reducing what even defendants now concede are the enormous costs to public health of widespread cigarette smoking. More effective in alleviating smoking dangers are probably such legislative and administrative efforts as prohibiting smoking in public and commercial areas and raising prices, primarily through taxes."

Private litigation is a poor excuse for enlightened legislation. If elected representatives are unwilling to do more than they have done already to discourage smoking, federal courts shouldn't be expected to pick up the slack -- especially on the basis of "elegant" theories like this one.

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