New front in the tobacco wars: light cigarettes

Group of lawyers is filing more lawsuits challenging the industry's marketing claims, with some success.

In a black-and-white ad 25 years ago, a young New Yorker named Mikki Smith looked out from the pages of Life magazine and told its readers, "I didn't think it was possible. To find a cigarette that really tasted good but that had only half the tar of my old one."

That ad for Vantage, with other ads, helped convince millions of Americans that so-called "light" and "low-tar" cigarettes might be safer to smoke than regular cigarettes. Now, in a series of lawsuits, the tobacco industry is finding that even implying these cigarettes were safer may be dangerous to its financial health.

Last month, an Illinois judge, under state consumer protection laws, ruled that Philip Morris had misled smokers - and he handed down a $10 billion judgment. Last year, in Oregon, the tobacco company lost $100 million in a wrongful death case.

The anti-industry rulings may have important ramifications for public-health policy: The majority of cigarettes sold in the US are light and low tar.

While the tobacco industry says people choose these cigarettes based on taste, health groups point to false marketing. The court cases are highlighting risks that experts say are consistent with these cigarettes, such as a large rise in lung cancer rates - especially among women.

"Our goal is to get the story out," says attorney Stephen Sheller, who heads up an informal umbrella group of lawyers that take on light-cigarette cases.

Now they have an opportunity to be heard. So far, 16 class-action lawsuits have been filed in 12 states. "This signals the beginning of a trend," says Cliff Douglas, head of the Tobacco Control and Policy Group in Ann Arbor, Mich. "There are two different states with verdicts against the marketing of light cigarettes."

Philip Morris says it's not worried by the cases, partly because the vast majority of class-action suits traditionally don't make it to trial, says William Ohlemeyer, the company's associate general counsel. "This latest case is an example of the plaintiffs' lawyers choosing a court where they have the highest likelihood of success."

The nation's largest tobacco company, a division of Altria Group, is negotiating with Judge Nicholas Byron and the plaintiffs over the amount of the bond needed to appeal the case. That decision was expected Monday. The size of the bond could have a large ripple effect since the company has said it might not be able to make a $2.5 billion payment Tuesday as part of the national tobacco settlement. Many states are using the tobacco money to balance their budgets.

If the case is appealed, Mr. Ohlemeyer says, the defense is simple: A Surgeon General's warning is on each pack. "Most of these lawsuits involve claims that additional warnings should have been provided," he says. "That's been answered by the US Supreme Court. No one can require more detailed warnings."

Yet the Supreme Court didn't protect the industry against claims of false representation or concealment of significant facts. "This explains why the Illinois court could hold Philip Morris liable for hiding the truth about light cigarettes," says Mr. Douglas.

The Illinois case illustrates how much has been discovered about light and low-tar cigarettes since the 1992 Supreme Court ruling. In 1997, while working on a tobacco case, Mr. Sheller noticed that the amount of tar and nicotine inhaled by smokers was rising despite the increase in sale of light and low-tar products. He then found a report that he says illustrated how such cigarettes worked. When tested on Federal Trade Commission machines, they show a reduction in the amount of tar and nicotine inhaled. In the early 1980s, the government suggested a shift to these products.

But subsequent reports have found that consumers "compensate" for reduced nicotine by taking more puffs, inhaling more deeply, and holding the smoke in their lungs longer. During the Illinois case, the plaintiffs presented documents that showed the company was aware of this.

In 2001, the National Cancer Institute reported that light and low-tar cigarettes provided no health benefit. And scientists are now finding cancers that may be linked to such cigarettes. "It has gone from a small fraction of those reported to the most common," says Dr. David Burns, the senior scientific editor of the report.

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