How to fight big tobacco without ever talking about the health risks of smoking.

How to fight big tobacco without ever talking about the health risks of smoking.

How to fight big tobacco without ever talking about the health risks of smoking.

Oral argument from the court.
Oct. 6 2008 6:34 PM

Smoke Rings

How to fight big tobacco without ever talking about the health risks of smoking.

Cigarette. Click image to expand.
At issue is the legality of "low-tar" labeling

The first monday in October usually shuffles in on soft slippers—ordinary cases, argued ordinarily. Today is no different. The justices strive to rein in any possible drama that might accompany the start of the new term. Nothing to see here folks … just brains in a vat, coming back to life after a long summer marinating. Actually the entire 2008 term promises to be—how to put this—as thrilling as cleaning out the lint filter. Which is why Supreme Court reporters struggled this weekend to make today's first case—about federal pre-emption doctrine and tobacco lawsuits—sound like a knuckle-biter. Here's the bad news: Not only is this morning's case the less-interesting tobacco case this term, it's also the less interesting of the pre-emption cases. Grim. I know. But stick around. It turns out good.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

Federal pre-emption law stomps around in big boots. Whereas the states-rights "revolution" once celebrated the ingenuity of the various states when it came to working out complex legal problems, federal pre-emption doctrine strives for "national regulatory uniformity" and the consistency of clear federal laws. Thus, if Congress wants to, it may pre-empt or block state lawsuits in areas into which it plants its federal flag. The Roberts Court has been feeling all kinds of love for federal pre-emption lately, which is why Philip Morris is feeling giddy at the prospect of using it to deliver a "knockout blow" to a raft of state consumer-protection lawsuits alleging the cigarette maker fraudulently misled smokers into believing that "low-tar" or "light" cigarettes were not actually as dangerous as the everyday kind.


Today's argument, Altria Group v. Good, involves a lawsuit filed by three smokers from Maine, but it's one of dozens of similar "light" lawsuits filed around the country. The tobacco companies are hoping the impenetrable shield of federal pre-emption will protect them absolutely from all of these state anti-deception suits, which would represent another big win for business at the Roberts Court. A district court in Maine dismissed the "light" suit on pre-emption grounds. The 1st Circuit Court of Appeals found for the smokers.

The facts don't look great for the smokers. Altria, Philip Morris' parent company, points to a 1965 statute, the Federal Cigarette Labeling and Advertising Act, which explicitly says that "no requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes." In other words, states can't go after cigarette companies for misleading ads connecting smoking and health. You can always mouth the word cancer, but if you say it aloud, federal pre-emption kicks in, and your lawsuit evaporates. For their part, the smokers contend that this case has nothing to do with advertising pertaining to "smoking and health." They just want to sue big tobacco for being big fat liars.

Former Solicitor General Ted Olson, representing Altria, points out that the Maine lawsuit is completely obsessed with "smoking and health" and is an obvious candidate for federal pre-emption. Justice Ruth Bader Ginsburg asks him whether that leaves any space at all for state attorneys general to remedy deceptive advertising or labeling practices. Olson offers an example of non-health-related deception that would not be pre-empted by the Labeling Act: Tobacco companies would be on the hook under state law for, say, lying about the number of cigarettes in a package. Justice Stephen Breyer wonders if even blatantly false claims about cigarettes cannot be pursued under state law. Claims, he says, like "smoking 42 cigarettes a day will grow back your hair." Olson says this sort of claim does not relate to smoking and health. So Breyer changes his hypo to "smoking builds strong bodies in eight ways."

Breyer remains perplexed. In contemplating the Labeling Act, he says, "I can understand totally why Congress would not want 50 states telling cigarette companies what to say about health and smoking." But he just can't figure out "why Congress would want to get rid of the traditional rule that advertising has to tell the truth."


The tobacco company is arguing that the Maine lawsuit must be dismissed because it is both "expressly" pre-empted and "impliedly" pre-empted, although when Olson is invited by Justice Scalia to address the implied pre-emption argument, he says, very frankly, "I'd like to spend no time on the implied pre-emption argument," to which Scalia laughs, "Good idea!"

David Frederick, representing the Maine smokers, opens with the claim that the Labeling Act was never intended to "immunize cigarette makers for the false statements they made in violation of anti-deception in the marketplace rules." But he is roughed up immediately by Chief Justice John Roberts and Justice Samuel Alito. Then David Souter, too, begins to pound Frederick on the fact that the only way his clients can realistically prove damages is by linking smoking and health, and that's the kind of argument pre-empted by the federal rule. Frederick tries manfully to argue that the issue here isn't the "health" distinction between regular and light cigarettes but a "difference in value." But Souter appears unconvinced that consumers would value low-tar over regular cigarettes for any but health reasons. Breyer's urgent nodding suggests Frederick may have lost him on this "smoking and health" point as well. Justice Anthony Kennedy says outright to Frederick: If it's "your position that this suit is not based on a link between smoking and health, I'm going to have difficulty in accepting your position in this entire case. Do you have a secondary position?"

Things start getting weird when Douglas Hallward-Driemeier, assistant to the solicitor general, rises to argue only the "implied" pre-emption part of the case on behalf of the smokers. First the chief justice busts his chops for taking a position on only 50 percent of the issues in the case and then for arguing a narrow position that—as Roberts sees it—"Mr. Olson gave up in his opening argument." Then Hallward-Driemeier has to pry an enraged Alito out of his hair when Alito begins accusing the FTC of "tacitly approving" low-tar labels for 40 years, long after it became clear they were as dangerous as the alternative. Alito accuses the federal government of single-handedly "creating this whole problem" by passively approving the low-tar advertisements and having "misled everybody who's bought those cigarettes for a long time." When it looks like Hallward-Driemeier is ready to crawl under counsel table, Scalia—who's clearly been studying the Katie Couric "gotcha" tapes—begins to vaguely threaten that bad things will happen to him if the justice discovers the SG's office has taken a contrary position on the express pre-emption question in an earlier case.

Everyone gets gotcha-ed at least once this morning. Justice John Paul Stevens nabs Olson for citing an Illinois case in which it turns out there was no federal pre-emption. The chief justice triumphantly gets Frederick to admit he misspoke when asserting that the smokers hadn't sought injunctive relief in this case. Then Olson has to explain in his rebuttal that he hadn't exactly abandoned the implied pre-emption argument; he just had better things to do. And when all the smoke clears, it looks to be another good day for big tobacco and another bad day for the folks harmed by it. Big tobacco blames the FTC for its deceptive claims. The FTC blames big tobacco for its deceptive claims. And the Marlboro Man tips his hat and rides off into the sunset.