Philip Morris puffed up low-tar cigarette claims, jury finds.

A jury in Portland, Oregon, found for the plaintiffs in a lawsuit against Philip Morris that asserted low-tar cigarettes are as dangerous as regular ones.

"This is the first tobacco trial to focus on concealed health information and deceptive marketing practices for cigarettes branded as `light,'" said Mark Gottlieb, attorney for the Tobacco Products Liability Project, based at Northeastern University in Boston. "While smokers usually think that `light' cigarettes have less nicotine than `full flavor' brands--as they are, in fact, labeled as such--this is not the case at all. The jury's anger at this deception was clear by the size of the [$150 million] punitive damages award."

The plaintiff--the husband of a woman who died of lung cancer after smoking low-tar cigarettes--alleged that the cigarettes were defective and unreasonably dangerous, in part because the manufacturer added ammonia and altered the pH to increase the effects of nicotine and make the product more addictive. The jury agreed and found that Philip Morris made "false representations that 'low-tar' cigarettes delivered less tar and nicotine to the smoker and were therefore safer and healthier than regular cigarettes and an alternative to quitting smoking." (Schwarz v. Philip Morris Inc., No. 0002-01376 (Or., Multnomah County Cir. Ct. Mar. 22, 2002).)

Michele Schwarz began smoking when she was an 18-year-old nursing student. In 1976, she switched to low-tar Merit cigarettes because she believed they would be better for her health. She was diagnosed with lung cancer in February 1998 and died on July 13, 1999, at age 53. Her husband, Richard Schwarz, sued Philip Morris on behalf of her estate, alleging negligence, product defects, and fraud.

The jury found that Philip Morris was 51 percent responsible for Schwarz's death and that she herself bore 49 percent of the responsibility.

Plaintiff attorney Lawrence Wobbrock of Portland said he used company documents--most posted on the Internet under the terms of the 1998 settlement agreement between tobacco companies and state attorneys general--to show that Philip Morris knew that smokers compensate for the reduced tar and nicotine in these cigarettes.

"Smokers suck harder, inhale deeper, and hold the smoke in their lungs longer to compensate and get the same amount of nicotine," Wobbrock said. There is evidence, he added, that cancer is related to the dose of tar. But as smokers compensate to get more nicotine, they are exposed to more tar, countering any supposed benefits of the low-tar cigarettes. "By proving that [Philip Morris] did know that smokers compensate, this case publicizes that they are not being square with the public. Low tar is not more healthy."

"This is the Achilles' heel of the industry," said attorney Stephen Sheller of Philadelphia, who represents several plaintiffs in suits filed in Pennsylvania. In addition, he said, at least 11 consumer-fraud class actions have been filed against the tobacco companies. Those in Florida, Illinois, and Massachusetts have been certified. The Oregon case was the first to go to trial.

At press time, Philip Morris planned to appeal the verdict, alleging that the judge gave the jury improper instructions and that the punitive damages are excessive.

"This may well signal a new and important series of cases against Philip Morris and the other major tobacco companies that have long tried to get smokers to switch to low-tar brands rather than quit smoking," said Gottlieb. "They marketed a product that they called `light' to fool smokers who might have quit into thinking that there was a less dangerous alternative. Through image-marketing appeals and the use of misleading nicotine measurements, millions of smokers have been fooled."