Massachusetts high court certifies 'light' cigarette class action.

The Supreme Judicial Court of Massachusetts is the first state supreme court to certify a class action suit against Philip Morris Cos. for allegedly deceiving consumers in its marketing of so-called light cigarettes. (Aspinall v. Philip Morris Cos., 813 N.E.2d 476 (Mass. 2004).)

The suit claims that the tobacco manufacturer violated state consumer protection statutes by marketing Marlboro Lights as having lower tar and nicotine content--and thus being less dangerous--than regular cigarettes.

"These 'light' class actions are not about sick smokers but rather about [the company] misleading 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," said Mark Gottlieb, an attorney with the Tobacco Products Liability Project in Boston.

"More cases will be filed, and many that are awaiting class certification decisions will likely be certified, following this court's ruling."

Philip Morris "made a direct appeal based on health," said Thomas Urmy of Boston, who represents the plaintiffs. "The implied proposition was that if you smoked this cigarette, it's going to be better for you. However, their own internal documents have shown that it is not better for you. In fact, it may be worse for you."

Documents produced during litigation in the 1990s and posted online revealed that tobacco companies, including Philip Morris, knew their "light" brands were not safer. In the 1960s, the Federal Trade Commission began using a standard machine test to determine how much tar and nicotine different brands of cigarettes passed to smokers. The plaintiffs allege that the manufacturers engineered their products to produce low levels on these tests but deliver higher levels to smokers--for example, by placing pin-size air-holes in the filters, which consumers unknowingly cover with their fingers while smoking. The plaintiffs also claim that the machine tests don't account for smokers' "compensating"--that is, taking deeper, longer puffs on light cigarettes to obtain enough nicotine to satisfy their addiction.

Earlier cases against tobacco companies involved personal injury claims, which most courts found were highly individualized and thus not suitable for class certification. Bringing the new suits under consumer protection statutes "avoids all the individual issues [the industry has] used to defeat certification in the personal injury context," said Urmy.

Justice John Greaney, writing for the Massachusetts high court, confirmed that theory. "The plaintiffs need not prove individual physical harm in order to recover for the defendants' deception. Nor need the plaintiffs show that each individual consumer relied on the defendants' false promise when purchasing Marlboro Lights," Greaney wrote. "Neither an individual's smoking habits nor his or her subjective motivation in purchasing Marlboro Lights bears on ... whether the advertising was deceptive."

Many "light" cigarette suits are pending across the country, and only a few have gone to trial. In March 2002, a jury in Portland, Oregon, heard the first such case and awarded $150 million in punitive damages. (See Schwartz v. Phil@ Morris, Inc., No. 0002-01375 (Or., Multnomah County Cir. Ct. Mar. 22, 2002) ; Sara Hoffman Jurand, Philip Morris Puffed Up Low-Tar Cigarette Claims, Jury Finds, TRIAL, June 2002, at 78.) The judge reduced the award to $100 million, and the state appeals court heard oral arguments two months ago.

In March 2003, a jury in Illinois awarded over $10 billion to a class of plaintiffs. (Price v. Philip Morris Cos., No. 00-L-0112 (Ill., Madison County Cir. Ct. Mar. 21, 2003).) That ruling is currently on appeal.

In "light" cigarette cases in many other states, class certification is the key issue, said Gottlieb. In Missouri, for instance, a trial court's grant of class certification is on appeal, as is a Florida trial court's denial of certification.