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Supreme Court to decide if Maine smokers can sue

The case, to be heard Monday, will determine if the smokers' suit alleging fraudulent ads about 'low tar' cigarettes can go to trial.

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"Complying with those state laws means conducting your business in a lawful way and being truthful in communications you have with your customers," says Edward Sweda, a lawyer with the Tobacco Products Liability Project at Boston's Northeastern University School of Law. "Philip Morris is seeking to have the US Supreme Court bestow on it a shield of absolute immunity that Congress never authorized."

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Tobacco firms besieged on many fronts

The suit in Maine is part of a massive legal assault being waged against the tobacco industry. In addition to the Maine case, 16 lawsuits are pending in 14 other states raising similar claims about deceptive marketing of "light" cigarettes. Beyond that, scores of lawsuits are pressing an array of other complaints.

In addition, the US Justice Department is waging its own battle against the tobacco companies. In 2006, a federal judge ruled that Altria and other tobacco firms violated civil racketeering laws in part by falsely marketing and promoting low-tar and light cigarettes as less harmful than regular cigarettes.

The 2006 verdict in US v. Philip Morris is being appealed. Oral argument is set to be heard next week, on Oct. 14, at the federal appeals court in Washington.

In the Maine case at the Supreme Court, the Justice Department and the FTC have filed a friend-of-the-court brief supporting the consumers' lawsuit. The brief says legal action against an alleged fraud in Maine is not preempted by federal laws or regulations.

"The Commission does not view respondents' lawsuit as undermining the FTC's policies in any way," writes Solicitor General Gregory Garre in his brief. "In the 1960s and 1970s, the FTC encouraged the adoption of complementary state enforcement mechanisms, including private rights of action for damages, which the FTC act does not provide."

Lawyers for Altria say a 1965 law, the Federal Cigarette Labeling and Advertising Act (FCLAA), reserves exclusive authority to the federal government over advertising related to smoking and health. Because designations like "light" and "low tar" were approved under the federal law, state lawsuits related to the use of those terms must be preempted, they say.

Lawyers for the Maine consumers respond that their suit is not a state-level attempt to micromanage issues related to smoking and health. Instead, they say, the suit is aimed at enforcing a Maine state law that prohibits companies from using deceptive business practices.

"For decades, Philip Morris has knowingly and falsely represented that certain brands of its cigarettes are 'light' or have 'lowered tar and nicotine,' even while designing its cigarettes to ensure that smokers would not receive reduced levels of tar or nicotine," writes Supreme Court advocate David Frederick in his brief to the court on behalf of the Maine consumers.

Altria's lawyer, Theodore Olson, says in his brief that the 1965 Labeling Act provides that "no requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes."

Mr. Olson says of the Maine lawsuit, "If the Labeling Act's express preemption provision does not preempt this claim, what does it do?"

The case is Altria Group and Philip Morris v. Stephanie Good (07-562).

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