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August 13, 2004

MASSACHUSETTS' HIGH COURT ISSUES HISTORIC
RULING CERTIFYING CONSUMER FRAUD CLASS ACTION
AGAINST PHILIP MORRIS FOR
MARLBORO "LIGHT" CIGARETTES

First time a state supreme court has certified a tobacco class action and
first state supreme court to weigh in on "light" cigarette consumer fraud claims

                This year, Friday the 13th turned out to be a very unlucky day for Philip Morris as the Massachusetts Supreme Judicial Court issued a ruling reinstating class certification to a consumer protection lawsuit.  The suit alleges that the nation's number one cigarette manufacturer, according to the Court, misled "the public into believing that their product, Marlboro Lights, would deliver lower levels of tar and nicotine, when the defendant companies knew the truth to be otherwise and, in fact, intentionally designed the product so that most smokers of Marlboro Lights would receive as much, or more, tar and nicotine than if they had smoked regular cigarettes."

                The trial court certified the case as a class action on October 12, 2001. The certification was overturned on appeal in May of 2003 and the Supreme Judicial Court agreed to review the matter this year.

                In the Court's decision, it described the nature of the Philip Morris' alleged deceptions:

The defendants in fact purposefully have designed Marlboro Lights to produce Federal Trade Commission smoking machine test (FTC test)  results that enable, as a matter of Federal law, the defendants to promote their cigarettes to consumers as "lights" with "lower tar and nicotine." At the same time, the defendants took steps to ensure that Marlboro Lights would deliver to smokers amounts of tar and nicotine that are higher than those registered by the FTC test. The defendants achieved this through a variety of design modifications, including, but not limited to, the strategic placement of microscopic ventilation holes in or around cigarette filters; the modification of tobacco blend and weight, rod length and circumference;  the use of reconstituted tobacco sheets or expanded tobacco;  and the increase of smoke pH level  through the use of chemical additives and processes such as ammoniation.  The defendants conducted their own internal tests to ensure that the actual amounts of tar and nicotine delivered under normal use remained at higher levels than those registered by the FTC test. By marketing their cigarettes as "Marlboro Lights," and branding them with the label "LOWERED TAR AND NICOTINE," the defendants intended to create an impression in the minds of customers that the cigarettes were "healthier" than regular cigarettes, thereby promoting the illusion of decreased tar and nicotine deliveries, in full awareness that Marlboro Lights would (as they were designed to) continue to deliver addictive levels of tar and nicotine.    [footnotes omitted]

 

                The case is likely to be tried sometime in 2005.  There are approximately 20 similar cases in various procedural postures pending around the nation.  In March of 2003, the first such case that went to trial resulted in a $10.1 billion verdict against Philip Morris in Illinois.  That state's supreme court will hear oral arguments in Philip Morris' appeal later this year.

Commentary:

Mark Gottlieb, Senior Staff Attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston noted that, "this decision will likely be closely read by judges considering these issues in the 20 or so similar pending cases around the country.  The real battle in these cases is over the issue of class certification. The facts surrounding the deception are hardly in dispute and it is likely that the trial will result in a finding of damages that may reach into the hundreds of millions of dollars, if not more. It is important to remember that this case is not about sick smokers but rather about duped consumers who thought they were getting a lower tar and nicotine cigarette but were in fact getting a cigarette that was as dangerous and addictive, if not more so, than so-called 'full flavor' brands."

Edward L. Sweda, Jr., Senior Attorney for the Tobacco Products Liability Project at Northeastern University School of Law in Boston, added: "Today’s ruling is terrific news for the plaintiffs who have filed similar consumer fraud cases against the tobacco companies.  While the tobacco industry and their friends on Wall Street may have been surprised by the SJC’s decision, it is clear that, as the majority ruled, the '[trial] judge’s conclusion that the plaintiffs’ claim warrants certification as a consumer class action is amply supported by the record…. We conclude that a class action is not only an appropriate method to resolve the plaintiffs’ allegations, but, pragmatically, the only method whereby purchasers of Marlboro Lights in Massachusetts can seek redress for the alleged deception.'  Today’s decision properly focuses on the fraudulent and deceptive misconduct of Philip Morris, as the plaintiffs allege. This ruling will be very helpful to the attorneys representing the plaintiff class in the Price v. Philip Morris case in Illinois that resulted in a $10.1 billion judgment last year."

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See the Court's 4-3 Majority Opinion and Dissent (html)
See the Plaintiffs Complaint (pdf)