Justices Blow Ill Wind toward Good

October 6, 2008 11:37 am by Gene Borio

The Supreme Court Justices seemed most concerned about Congress’ intent in the 1965 Federal Cigarette Labeling and Advertising Act. Did Congress mean to preempt all law and lawsuits having anything to do with advertising and smoking and health?

Altria’s lawyer, Ted Olson, had to overcome some Justices’ cavils about the sweeping nature of the Labeling Act’s preemptive power. Does the governement welcome state aid in finding and prosecuting those comitting fraud against its regulations? Or, if fraud exists and the government fails to act on it–is all action nullified anyway?

Breyer: “I can’t understand why Congress would want to get rid of the traditional rule that advertisers tell the truth?”

Ginsburg: “So your position is that Congress, on low tar/light cigarettes, empowered one decision-maker only, the FTC, and if they don’t act, nothing else is possible?”

Stevens: “Is the requirement of a fraud statute that you can make no false statements _except_ in areas of smoking and health?”

A big issue for Good lawyer David C. Frederick to overcome was whether his suit dealt with smoking and health.

# Frederick said it wasn’t a matter of health, but of fraud, of deception. He even at one point misspoke, and said the Good suit does not ask for injunctive relief (he later admitted it did).

# Frederick said the difference between light and regular cigarettes was one of value. This was a bit of a mire. “Were your clients charged more for lights?” asked Justice Scalia. No, Frederick said, but a customer may have chosen to quit if they knew there was no real value to lights. Well, indicated the Justices, that’s back to a health issue.

Olson said the Good suit was about smoking and health “no matter how they change the label” of the suit.

Tobacco Products Liability Project lawyer Ed Sweda said that you can count on 4 Justices deciding for Altria: Scalia and Thomas, who ruled for preemption in Cipollone, as well as the obviously hostile Roberts and Alito. (Why would Alito call the suit “Sipollone?”) A ruling for preemption would, dramatically, overturn Cipollone, but then disrespect for stare decisis is a hallmark of this court. Stevens, who wrote the Cipollone decision rejecting preemption, would have to overturn himself.

Everyone agrees you shouldn’t try to predict a ruling from Justices’ behavior, but:

I agree with Sweeda on the 4 pro-Altria Justices.

Breyer seemed sympathetic to Good, as did Ginsburg and Souter.

Kennedy and Stevens were much more difficult to read.

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3 Responses to “Justices Blow Ill Wind toward Good

  1. Roy George Says:

    I am a 68 year old African-American male. I started to smoke Pall-Mall Cigarette in 1953, at the age of 13. Cancer was discovered on my larynx in 1977, when I was only 37 years old.

    I’ve had several major operation since than. All of my voice-box had to be removed along with other organs in my body. All of my medical records shows that my illness was caused by smoking cigarette.

    I’ve went back to school, attending countless job’s fairs and with no results. I’ve been force to support my family on Social-Security since 1988. Is there any help for someone such as myself? Thanks.

    Roy George

  2. Ed Sweda Says:

    I think Justice Stevens is solidly on the side of the smokers in this case. My principal concern is where Justice Kennedy will come down after his comment on having trouble accepting the argument that the claim is not based on smoking and health.

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