Supreme Court considering suit against cigarette maker

Published Monday, October 6, 2008

WASHINGTON (AP) - The Supreme Court opened its new term today suggesting it would side with tobacco companies in their fight to block lawsuits over deceptive marketing of "light" cigarettes.

The court’s term begins, by law, on the first Monday in October. "The October 2008 term is now convened," Chief Justice John Roberts told a packed courtroom that included retired Justice Sandra Day O’Connor.

The justices turned away hundreds of appeals that had accumulated over the summer before addressing the tobacco case.

Several justices were skeptical that state laws against fraudulent advertising could be used to sue the makers of "light" and "low-tar" cigarettes when a federal law on cigarette labeling rules out lawsuits that involve smoking and health.

"How do you tell it’s deceptive or not unless you look at smoking and health?" asked Chief Justice John Roberts.

Three Maine residents sued Altria Group Inc. and its Philip Morris USA Inc. subsidiary under the state’s law against unfair marketing practices. The class-action claim represents all smokers of Marlboro Light or Cambridge Light cigarettes, both made by Philip Morris.

The lawsuit argues the company knew for decades that smokers of light cigarettes compensate for the lower levels of tar and nicotine by taking longer puffs.

A federal district court threw out the suit, but the First U.S. Circuit Court of Appeals said it could go forward.

The role of the Federal Trade Commission could be important in the outcome. The FTC is only now proposing to change rules that for years condoned the use of "light" and "low tar" in advertising the cigarettes, despite evidence that smokers were getting a product as dangerous as regular cigarettes. The FTC "created this problem by tacitly approving the place of these figures in the advertisements," Justice Samuel Alito said.

Douglas Hallward-Dreimeier, the Department of Justice lawyer representing the FTC today, said the cigarette makers "should not be able to benefit from their own misleading of the commission."

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The Supreme Court today also refused to consider a murder case in which a jury foreman read passages of the Bible to holdout jurors who subsequently voted to impose the death penalty.

Without comment, the justices declined to consider whether the jury foreman’s conduct violated the rights of Jimmie Lucero, an Amarillo, Texas, man sentenced to death after being convicted in the shotgun slayings of three neighbors at their home in 2003.

The state of Texas argued the Bible passage merely duplicated instructions of the trial court.

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The Supreme Court refused today to disturb a $74 million judgment against Dish Network Corp. for violating a patent held by TiVo Inc. involving digital video recorders.

Without comment, the justices declined to consider Englewood, Colo.-based Dish’s appeal.