Tobacco Litigation: Claims Involving Light Cigarettes

Recent lawsuits against manufacturers of light cigarettes represent the latest trend in tobacco litigation.

The most recent wave of tobacco litigation involves light cigarettes. These lawsuits which accuse tobacco companies of engaging in false advertising and other deceptive practices, by misrepresenting light cigarettes as safer than regular cigarettes are typically class action lawsuits brought under state unfair business practice laws.

This article discusses the main thrust of plaintiffs' allegations in light cigarette cases, the cigarette manufacturers' defenses to those allegations, and a recent U.S. Supreme Court decision allowing a state class action lawsuit involving light cigarettes to proceed. (For background information and the latest news on tobacco lawsuits, see Nolo's article Tobacco Litigation: History & Recent Developments.)

What Are Light Cigarettes?

Light cigarettes also called low-tar, ultra-light, and mild cigarettes have tiny pinholes (called "pinhole vents") on the filters. According to cigarette manufacturers, the holes allow air to mix with and dilute the smoke. Tobacco companies list the tar and nicotine numbers on light cigarette packages and in advertisements as being lower than those of regular or "full flavor" cigarettes. The numbers come from industry "smoking machines" that measure tar and nicotine by "smoking" every brand and type of cigarette the same way.

Plaintiffs' Claims in Light Cigarette Litigation

Plaintiffs dispute the accuracy of the smoking machine numbers, claiming that they are not accurate portrayals of the actual tar and nicotine ingested by light cigarette smokers. Plaintiffs point to information from the National Cancer Institute and the Office on Smoking and Health at the Centers for Disease Control and Prevention that indicates that smoking machine numbers are artificially low because:

• Many smokers are not aware of the pinholes on light cigarettes, which are placed just millimeters from where smokers put their lips and fingers. As a result, many light cigarette smokers cover up the pinholes, effectively turning a light cigarette into a regular cigarette.
• Some light cigarettes have longer paper covering more of the filter. This decreases the number of puffs that the smoking machine takes. However, the tobacco underneath the paper is available to smokers, and therefore they take more puffs and ingest more nicotine and tar than does the smoking machine.
• Smokers, unlike smoking machines, crave nicotine and tend to compensate for the lower tar and nicotine in light cigarettes by taking longer, more rapid, or more frequent puffs (or by smoking a few extra cigarettes per day to satisfy cravings).

The lawsuits also claim that, according to tobacco industry documents, cigarette manufacturers know that the "inhalation" measurements taken from smoking machines are lower than the actual amounts of tar and nicotine being inhaled by smokers.

Although the precise legal theories employed by plaintiffs in light cigarette lawsuits vary depending on state law, the underlying idea is this: Cigarette manufacturers deceive the public into believing that light cigarettes are safer or healthier to smoke than regular cigarettes when, in fact, they are not.

Tobacco Companies' Defenses in Light Cigarette Litigation

In defending themselves against these light cigarette lawsuits, tobacco companies have argued that:

• The term "light" refers to the fact that these cigarettes are lighter in taste, not that they are healthier. Consumers know (or should know) what this term refers to.
• Federal laws governing cigarette packaging preempt (supersede) state laws dealing with the same subject matter. Therefore, plaintiffs cannot base claims on state consumer protection or unfair business practice laws.

Federal Preemption May Not Be a Defense

In 2008, a U.S. Supreme Court decision knocked down the tobacco industry's preemption argument in a class action case from Maine. In Altria Group Inc. v. Good, a group of plaintiffs in Maine sued Altria (Altria's parent company is Phillip Morris), alleging that Altria's marketing of "light" and "low tar" cigarettes constituted fraudulent misrepresentation under Maine's unfair trade practices laws. Plaintiffs claimed that such marketing deceived smokers into thinking that light cigarettes are safer than regular cigarettes.

Altria argued that, because it was in compliance with the Federal Cigarette Labeling and Advertising Act and the Federal Trade Commission had approved its product labeling, the company was exempt from state deceptive business practice and product liability lawsuits over its advertising of light cigarettes.

The Supreme Court disagreed, stating that claims based on a common law legal duty (such as a manufacturer's duty not to misrepresent its products) were not preempted simply because they related to cigarette manufacturers and the labeling of its products. As such, the Supreme Court allowed the class action to proceed. Although the Supreme Court in Altria did not rule on the plaintiff's claims, its dismissal of Altria's preemption argument opened the door for other similar lawsuits based on state consumer protection and unfair business practice laws.

Getting Help and More Information

Any type of tobacco litigation involves complex legal theories, detailed and intricate scientific analyses, and often aggressive defendants. If you want to explore whether you or a loved one can bring a claim against a cigarette manufacturer, talk to a lawyer that specializes in this field and knows the status of tobacco litigation in your particular state.

For help on choosing a good personal injury attorney, read Nolo's article Finding a Personal Injury Lawyer. You can go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with tobacco litigation).