The American tobacco industry faces another multi-billion-dollar flood of lawsuits after the US Supreme Court ruled yesterday that smokers can sue over the way that it promotes light and low-tar brands.

The surprise 5-4 ruling was a victory for smokers who claim that the industry has perpetuated a massive fraud by fooling consumers into believing that light cigarettes are healthier than full-tar brands. Smokers may now use state consumer protection and deceptive marketing laws to sue the cigarette makers, because of data that shows low-tar cigarettes to be just as harmful as normal ones.

The US tobacco industry is already facing more than 30 class-action lawsuits from smokers and former smokers who are seeking billions of dollars in damages over claims that they were duped by these marketing techniques. More than 45 million Americans are smokers, with nearly 85 per cent using light cigarettes.

Yesterday’s case involved three residents from Maine, who had sued the Altria Group and its subsidiary, Philip Morris USA – the maker of Marlboro Lights – under the state’s law against unfair marketing practices. The cigarette maker had appealed against a lower court’s ruling that sided with the smokers.

The tobacco companies argued in the Supreme Court that they were protected by a federal law which, in essence, says that the health warning label that is required on cigarette packets prevents individual states from regulating – or passing laws over – any other aspect of cigarette advertising.

The smokers argued that they should be allowed to sue Philip Morris because, they claim, light cigarettes are just as harmful as full-tar brands – and that the tobacco companies have known this for decades. Although research into smoking rightly showed that the cigarettes emitted less tar when burnt, scientists now say that smokers of light brands inhale about the same amount of tar by taking longer puffs and smoking more cigarettes. The smokers claim that the tobacco companies knew about these “compensatory” techniques.

Justice John Paul Stevens, writing for the majority, said that the federal labelling law does not shield the tobacco companies from state laws against deceptive marketing. Yet he made it clear that the people suing the cigarette makers must prove still that the use of the terms light and low-tar actually violate the state antifraud legislation.

When the case was argued in October, Justice Stephen Breyer – who sided with the smokers in yesterday’s ruling – said that allowing the federal health label law to shield the cigarette companies from state law would enable them to make blatantly false claims.

The doctrine under which state product liability lawsuits are thrown out under federal law is known as “preemption”. Mr Breyer, taking issue with the doctrine, said: “Somebody could advertise smoking 42 cigarettes a day will grow back your hair. That’s totally false [and yet] would be preempted.”

The biggest payout forced on tobacco companies came on November 23, 1998, when 46 US states settled their claims against America’s leading cigarette makers to recover tobacco-related healthcare costs. The settlements require the companies to make annual payments to the states in perpetuity, with total payments estimated at $246 billion (£160 billion) over the first 25 years.

Light and dark

— About ten million adults smoke cigarettes in Great Britain

— Packs sold in Britain have to include health warnings covering 30 per cent of the front surface and 40 per cent of the back European law sets an upper limit of tar, nicotine and carbon monoxide in cigarettes. Words such as “light” or “mild” are banned as part of a brand name, unless authorised by member states

— A study by the American Journal of Public Health found that people who smoke light cigarettes are half as likely to quit as other smokers. A third of respondents said that they smoked lights because of health concerns

Sources: ASH, BBC

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