Holding tobacco companies accountable

By The St. Louis Post-Dispatch - 12/18/2008

Tobacco companies have sold "light" cigarettes for decades by promoting their supposedly low tar content, implying that this might make them less harmful to smokers' health than cigarettes with more tar. For most of that time, they've known the claim is misleading. But they've never been held accountable.

That may change. The U.S. Supreme Court ruled Monday that smokers may sue tobacco companies on the grounds that the companies' marketing strategies and tactics deceived them.

The ruling concerns a Maine case in which three smokers claimed they were defrauded. They asked to be compensated for economic losses rather than health problems. Their claim: Deceptive ads led them to believe light cigarettes were safer than regular cigarettes.

In 2002, a similar (but not identical) lawsuit was filed in Illinois. That case also rested on fraud allegations. It ended in a $10.1 billion judgment against Philip Morris USA and R.J. Reynolds Tobacco, but the verdict was thrown out on appeal.

Tobacco companies wanted smokers to believe that light cigarettes were safer. Internal industry documents described light cigarettes as "an effective marketing gimmick" that offered addicted smokers "the image of health reassurance." After the Surgeon General's 1964 report on smoking and health — and especially after warnings were added to cigarette packages — tobacco company researchers devoted great amounts of time and money trying to understand light cigarettes' appeal. Their conclusion: People who bought them want "nothing less than to be conned," the documents said.

Tobacco companies obliged them. They continued advertising the unique qualities of light cigarettes, even after agreeing in 1998 to stop misrepresenting the health effects of their products.

In 2006, a federal judge ordered them to stop labeling products "light" and "low tar," but they continued to do so while appealing the decision.

There is no dispute about the basis for the claims made in the Maine lawsuit. The only place where "low tar" cigarettes produce less tar and nicotine than other kinds of cigarettes is, coincidentally, on machines built to simulate smoking. But in the real world, people who smoke light cigarettes inhale just as much tar as those who smoke regular cigarettes. That's because of unconscious changes in the way they hold and smoke the cigarettes.

The smoking machines were used by the Federal Trade Commission for a landmark 1967 report on tar and nicotine yields of various brands. The report came out just two years after a federal law restricting cigarette advertising and was part of a national effort to discourage smoking.

Yet big tobacco companies survived those restrictions, just as they survived the Surgeon General's reports and the 1998 suit by 48 state attorneys general. Indeed, the companies turned the restrictions to their advantage.

When people sued for injuries caused by smoking, tobacco companies argued that warning labels absolved them of responsibility.

In the Maine case, they argued that a 1965 law restricting advertising prevented them from being sued in state court for claims "endorsed" by the FTC. This week, by a vote of 5 to 4, the Supreme Court rejected that argument. The Maine plaintiffs now have to put on and win their case on its merits.

Tobacco companies have good lawyers, lots of cash and plenty of avenues for appeal if they lose. Even so, they are a step closer to finally having to answer in court.

And after millions of lives ruined and billions in medical costs, they have a lot to answer for.

— The St. Louis Post-Dispatch