Half right on light
December’s decision by the Illinois Supreme Court to reverse damages in the Price case is at least half right.
In March 2003, a trial court in Madison County awarded lead plaintiff Sharon Price and more than a million other past and present Illinois smokers $10.1 billion for Philip Morris’ allegedly fraudulent marketing claims that its light and low-tar cigarettes were less hazardous than regular cigarettes. The plaintiffs argued they deserved compensation because the claims about reduced risk had misled them into buying a style of cigarettes that they may not have purchased had they known the truth.
The Supreme Court’s decision to reverse the ruling is half right in that the court, by a vote of 4-2, concluded that the Illinois law exempted proceedings under the state’s consumer protection statue against actions that were permitted by a regulatory body. As the justices observed, “The Federal Trade Commission has specifically authorized tobacco companies to characterize their products as ‘light.’” Since the FTC had allowed the tobacco industry to use descriptors like “light” and “low tar” on their products, the Illinois ruling was invalid.
The court’s decision is also half right in that it rejected the lower court’s certification of the class on the grounds that a class composed of more than a million individuals was too disparate to meet the law’s criteria for joining claims together. And it is half right in finding fault with the way in which the lower court calculated its sum for compensatory damages.
But the Supreme Court’s decision is half wrong in that it appears in its final words to give legitimacy to the plaintiff’s claim that light and low-tar cigarettes do not provide a less hazardous alternative to higher-tar products. In a groveling bow to political correctness, the court notes, “… we share the concerns expressed by plaintiffs … about the devastating health effects of smoking…”—a question that was never at issue in the case. “We emphasize that because this action is barred by section 10b(1) of the Consumer Fraud Act, it is unnecessary to reach the merits of plaintiff’s claim that PMUSA intentionally deceived the public. Our resolution of the present case is in no way an expression of approval of PMUSA’s alleged conduct.” But the justices’ seeming implication that low-tar cigarettes are not less hazardous runs against several decades of scientific findings.
Some 16 years ago Stellman and Garfinkel, using the American Cancer Society database of a million men, demonstrated that there is a dose-response relationship between tar intake and lung cancer, something accepted by the Environmental Protection Agency in its 1993 report on Environmental Tobacco Smoke. And Sir Richard Doll, no friend of the tobacco industry, found in examining the mortality rates from smoking-related diseases in the U.K. from 1950-1984 that the decline in death rates was due not to less smoking but to changes in the tar levels of cigarettes. In a similar vein, the U.K.’s Independent Scientific Committee on Smoking and Health concluded that “past reductions in the yields of tar and associated cigarette components have reduced the risk of lung cancer ….”
More recently Geoffrey Kabat, after examining fifty years of evidence about the risks of low-tar cigarettes, found that the “studies indicate a reduction of risk [of lung cancer] on the order of 20 percent [to] 30 percent for smokers of lower tar, as opposed to higher tar cigarettes.”
Until the science about reduced-tar cigarettes—as opposed to the anti-tobacco and plaintiff rhetoric—is given a critical judicial examination, the porkers of the tort bar will continue to push their way up to what they still see as the Big Tobacco’s “light” trough.