WASHINGTON -- On the first day of the Supreme Court's new term, the justices appeared receptive Monday to a tobacco lawyer's arguments that federal law blocks state lawsuits claiming fraud in the marketing of "light" and "low-tar" cigarettes.
Lawyer Theodore Olson urged the justices to toss out a claim from Maine smokers of Marlboro Lights who say Philip Morris deceptively advertised them as safer than regular cigarettes.
Health advocates, consumer groups and manufacturers are closely watching the case, in part because millions of smokers have turned to "lights" in recent years. More broadly, the question at the core of the case is when manufacturers should be shielded from state consumer-protection laws if their product is federally regulated.
"Congress decided it wanted one uniform source of regulation of advertising ... with respect to smoking and health," Olson insisted, referring to the Federal Cigarette Labeling and Advertising Act of the 1960s. The law bars states from any "requirement or prohibition based on smoking and health" in advertising.
Lawyer David Frederick, for the smokers, countered that "when Congress enacted the 1969 labeling act," it offered no indication that it "immunized cigarette-makers for false statements."
Chief Justice John Roberts was among the justices sympathetic to Altria Group, parent company of Philip Morris, which has appealed a lower-court ruling allowing the smokers' case to proceed.
Roberts strongly implied that he believed Monday's case is similar to one last term in which the justices said a 1976 federal law covering medical devices prevented state personal-injury suits. Roberts said the smokers' claims in state court tread on federal law and its control of "the relationship between smoking and health."
The justices will hear a second case on the boundary between federal and state law in November, started by a woman whose arm had to be amputated when a drug was wrongly administered. That case tests whether U.S. approval of a drug label bars a state claim that a better label would have made the drug safer.
On Monday, Justice Stephen Breyer was among those who suggested states should maintain a role in cigarette advertising. "What I can't understand is why Congress would want to get rid of, in this area, the traditional rule that advertising has to tell the truth," Breyer said.
He said Congress may have been seeking, in the labeling law, to ensure that states did not compete with U.S. regulators by enacting competing label requirements or by, for example, forbidding pictures of the Marlboro man on packaging.
For decades the Federal Trade Commission has required tobacco companies to disclose tar and nicotine levels in advertising. Scientific studies have since shown, however, that such information could be misleading because smokers of "lights" may compensate by taking deeper puffs or holding smoke in their lungs longer.
Justice Samuel Alito remarked to Douglas Hallward-Driemeier, a government lawyer siding with the smokers: "You've created this whole problem by passively approving the placement of these figures on the advertisements. And if they are misleading, then you have misled everybody who's bought those cigarettes for a long time."
Hallward-Driemeier acknowledged that studies show tobacco companies knew since 1967 that smokers of "lights" were compensating in ways that did not make them safer.
The Maine smokers are not suing for health injuries but for money spent on light cigarettes. Similar claims against cigarette-makers that could reach billions of dollars are pending nationwide, and 47 states are backing the Maine smokers.
A ruling in Altria Group v. Good is likely by next June.
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