BOSTON, Mass. – In the fourth consumer fraud class action to be certified in the past year, Massachusetts Superior Court Justice Robert J. Kane allowed smokers of Marlboro Lights to sue Philip Morris as a class under Massachusetts' consumer protection law, known as ch. 93A. This ruling undermines the claims of tobacco companies and many tobacco-friendly Wall Street analysts who have asserted that the risk of class actions to tobacco companies is minimal, despite a record-setting $145 billion punitive damages award in a Florida smokers' class action last year.
Judge Kane's October 3rd ruling in Aspinall, et al. v. Philip Morris Companies and Philip Morris, Inc., (Suffolk County (MA) Superior Court, C.A. No. 98-6002-H) is a "major blow to Big Tobacco's public relations spin that class-action lawsuits are not a viable option for individuals trying to hold tobacco companies accountable for their wrongdoing," said law professor Richard A. Daynard, chairman of the Tobacco Products Liability Project (TPLP - See http://tplp.org), which is based at Northeastern University School of Law in Boston.
The Aspinall case is similar to a certified class action pending in Illinois (Miles v. Philip Morris). On February 8, 2001, an Illinois judge certified a class action suit brought on behalf of Cambridge Lights and Marlboro Lights (brands manufactured by Philip Morris) smokers alleging that the company engaged in deceptive conduct in connection with the promotion of so-called "light" cigarettes. That lawsuit is scheduled for trial in the spring of 2002.
Mark Gottlieb, staff attorney for TPLP, explained that "the basis of the consumer fraud and deception alleged in these lawsuits is that cigarettes sold as "light" are basically ordinary cigarettes with tiny holes in the filter that dilute the smoke with air when "tar" and nicotine are measured by a machine. These diluted measurements are printed on the pack and marketing materials for such cigarettes. But when smoked by human beings, the actual intake of "tar" and nicotine is much higher than the machine rating because either the lips or fingers of the smoker cover many of the holes." There is no evidence that, as more American smokers switched to "light" cigarettes, the disease rates for these smokers declined as compared to smokers of other brands.
Just as consumers believe that drinking "light" beer will be less fattening than drinking other brands of beer, consumers believe that smoking "light" cigarettes will expose them to fewer carcinogens than smoking other brands. However, what most smokers do not anticipate is their practice of "compensation," (i.e., smoking the cigarette closer to the end and drawing the smoke deeper into the lungs to compensate for the lower rates of nicotine), as well as unconsciously covering the holes, results in the inhaling carcinogens and other components of the "tar" to an extent similar to smoking regular cigarettes.
Two other consumer fraud-based class actions against tobacco companies were certified in the past year. Last November, a California judge certified a class of all California residents who smoked cigarettes as minors. Last May, a California judge certified a consumer fraud class of anyone who purchased cigarettes in California.
Consumer protection litigation by private plaintiffs is also known as "private attorney general" litigation because such cases are pursued in the public interest. Any damages are generally returned to consumers in the form of refunds or are placed in a fund to benefit the injured class. TPLP's senior staff attorney Edward L. Sweda noted that "consumer protection based class actions are an important public health tool to correct tobacco industry misconduct. Most states have consumer protection laws that could be used as the basis of a consumer fraud-based class action against the tobacco industry." In addition to the four certified consumer fraud class actions, tobacco companies are facing class actions seeking medical monitoring for smokers in West Virginia and Louisiana. Combined, class actions are seeking billions of dollars from the tobacco companies.
Northeastern University, a private research institution located in Boston, Massachusetts, is a world leader in practice-oriented education. Building on its flagship cooperative education program, Northeastern links classroom learning with workplace experience and integrates professional preparation with study in the liberal arts and sciences. For more information, please visit www.neu.edu.
CONTACTS:
Richard Daynard
Mark Gottlieb
Edward Sweda
Northeastern University School of Law
617-373-2026
Christine Phelan
Northeastern University
University Relations
617-373-5455