WASHINGTON — More than 45 million Americans are smokers, and nearly 85% of them buy "light" cigarettes such as Marlboro Lights, which are advertised as having lower tar and nicotine.
The Supreme Court, on the opening day of its term, heard arguments Monday on whether the tobacco industry can be held liable for allegedly perpetrating a massive fraud on the smoking public.
In recent decades, many smokers switched to "light" cigarettes, believing they posed less of a danger to their health. But studies have shown this common-sense view is wrong. Although machine tests showed "light" cigarettes emitted less tar when burned, actual smokers inhale about the same amount of tar when they puff on a "light" cigarette, the studies found.
The tobacco industry faces more than 30 class-action lawsuits from smokers and ex-smokers who seek billions of dollars in damages and claim they were fooled by the marketing of "light" and low-tar cigarettes.
But the justices sounded receptive to an argument from the cigarette makers that all these suits should be thrown out because they conflict with the federal law that requires warning labels on cigarette packs.
That law shielded tobacco firms from any other "requirement respecting the promotion of cigarettes based on smoking and health," Washington attorney Theodore B. Olson told the court. The former U.S. solicitor general was representing the Altria Group, the parent company of Philip Morris and the maker of Marlboro Lights.
His argument tracked a recent trend in the high court holding that products subjected to federal regulations are shielded from lawsuits filed under state law. In nearly every state, consumers who say they were fooled or cheated by a product maker can sue for damages.
In the case before the court, several smokers from Maine sued Altria under the state's law against "unfair and deceptive" trade practices, and they alleged they were misled by the marketing of "light" cigarettes.
Olson said their claim should be tossed out because "Congress wanted one uniform source of regulation of advertising of cigarettes," not different rules established by states and jury verdicts.
But a lawyer for the consumers said Congress did not intend to wipe out suits involving deceptive marketing. Lawmakers who set the warning labels in 1969 had "no intention whatsoever to immunize cigarette makers for false statements" about their products, David C. Frederick told the justices.
At one point, Justice Samuel A. Alito Jr. suggested the real culprit was the Federal Trade Commission. This agency oversees the warning labels on cigarettes, he noted, and it allowed the cigarette makers to tout the data from the machine tests indicating "light" cigarettes emitted less tar.
"If these figures are misleading, then you should have prohibited them a long time ago," Alito told an FTC lawyer. "You have created this whole problem by, I think, passively approving the placement of these figures in the advertisements [in the packaging]. You have misled everybody who's bought those cigarettes for a long time," he said.
The FTC lawyer replied that the agency itself had been fooled because tobacco companies had hidden research data indicating that smokers did not benefit from switching to light or low-tar cigarettes.
Also on Monday, the justices turned down without comment hundreds of appeal petitions which had piled up over the summer. In doing so, they let stand several noteworthy rulings.
In Arizona, an antiabortion group had won a free-speech right to obtain license plates with the message "Choose Life." The state permits private groups to obtain special plates, so long as they meet several basic criteria, and because the antiabortion group qualified, its message should not be censored, the U.S. 9th Circuit Court of Appeals said in the Stanton vs. Arizona Life Coalition case.
The court also let stand rulings that allow juries in Louisiana and Oregon to convict defendants even when they are not unanimous in their verdicts. In the past, the court said the Constitution does not require unanimous verdicts in all cases. They refused to reconsider that issue in the case of a Louisiana murderer in the Lee vs. Louisiana ruling.