African Americans claim tobacco marketing violated civil rights.

A Philadelphia minister and two African American groups filed a class action in October claiming the major tobacco companies violated civil rights law by targeting African Americans as consumers for menthol-flavored cigarettes and smokeless tobacco products, which have been shown to be more hazardous than their nonmenthol counterparts. (Brown v. Philip Morris Cos., No. 98-CV-5518 (E.D.Pa. filed Oct. 16, 1998).)

The case is believed to be the first to use the Civil Rights Act of 1866 to sue tobacco companies, said Richard Daynard, a leading antitobacco litigation expert. Daynard is chair of the Tobacco Products Liability Project at Northeastern University School of Law in Boston.

Michael York, an attorney for Philip Morris Cos., said, "It is a novel and exotic legal theory. For the past 45 years, the industry has faced litigation based on products liability theory." York said the new theory is flawed and predicted the case would be dismissed.

"No one thought about going outside of products liability until now," said William Adams Jr., one of two Philadelphia lawyers representing plaintiffs Rev. Jesse Brown, the Uptown Coalition, and the National Association of African Americans for Positive Imagery.

Adams joined lawyer Stephen Sheller to develop the theory, which Sheller said avoids preemption by the federal cigarette labeling law. If the suit is successful, he said, "African Americans who are suffering from lung cancer will be able to sue individually for bodily injuries because ... they were subjected to a substantial increased risk of harm."

Adams said the industry knew that adding menthol to cigarettes and smokeless tobacco increased health risks and was more appealing to African Americans, the primary buyers of metholated products.

"The assumption was menthol was just a flavoring when the tobacco industry knew otherwise," Adams said. It is unconstitutional to racially discriminate by targeting African Americans with defective products, he added.

Adams contended that African Americans buy 70 percent of the menthol tobacco products sold. Tobacco companies spend 40 percent of their advertising budgets promoting these products to African Americans, Adams said.

The suit seeks a permanent injunction that would remove mentholated tobacco products from the market and order tobacco companies to turn over their studies on the health effects of these products. The defendants include the tobacco manufacturers, the industry's research associations, and public relations company Hill & Knowlton.

In the past, lead plaintiff Brown has fought and won against menthol cigarette manufacturers outside of court. In 1990, Brown led a fight against R.J. Reynolds's introduction of Uptown, a menthol cigarette aimed at African Americans.

Brown enlisted community and religious leaders and then-Secretary of Health and Human Services Louis Sullivan to protest Uptown's launch. Brown formed the Uptown Coalition during this protest campaign, Adams said.

The negative national publicity generated by the campaign caused R.J. Reynolds to stop test marketing the cigarette in Philadelphia and shut down further production of the new brand.

In 1995, Brown lead a similar campaign in Boston to stop production of a cigarette named X. The cigarettes were packaged in a red, green, and black box, colors associated with African Americans. Brown asserted that the name connoted Malcolm X.

Brown's suit is awaiting class certification and is open to any African American who bought the products, Adams said.