Justices Attack Gov, but even an incompetent FTC may preempt States

October 6, 2008 11:05 am by Gene Borio

re: Altria Group, Inc. v. Good (07-562) (SCOTUS Oral Argument heard on Oct. 8, 2008)

The Justices today were tough on Altria lawyer Ted Olson, tougher on Good lawyer David C. Frederick–and toughest of all on DOJ lawyer Douglas Hallward-Driemeier, Assistant to the Solicitor General.

Justice Alito told Hallward-Driemeier that he found the government’s position “incomprehensible” if the FTC tar/nicotine figures are meaningless.

“You created this whole problem,” Justice Alito told him. “If the figures were misleading, then you have misled the public.”

Hallward-Driemeier tried to explain the history of the 1965 FTC regulation, and of the comparative knowledge of “compensation” over the years–the lack of knowledge at the FTC and the clear knowledge at the tobacco companies.

Justice Scalia appeared dismissive of this claim. He recalled a “lip-drape” case he had heard as an Appellate Judge many years ago. “[Compensation] has been general knowledge for a long time.” He said he’d review that case.

Justice Scalia also asked Hallward-Driemeier what the Government’s position was in Lorillard v. Reilly (2001) in which Scalia felt the government argued _for_ the Labeling Act’s ability to preempt Massachusetts’ regulation of outdoor and point of sale ads. Hallward-Driemeier argued that position was specific to the location of ads, not their content. Scalia said he’d review the case, ominously warning Hallward-Driemeier, “I’m going to hold you to your last position.”


One Response to “Justices Attack Gov, but even an incompetent FTC may preempt States”

  1. Jon Krueger Says:

    All of which should inform everyone’s understanding of the Philip Morris bill for FDA regulation of tobacco: S625/HR1108. Even an incompetent FDA may pre-empt too — giving the tobacco industry teflon in court the likes of which we have never seen.

    Tobacco financial analyst Bonnie Herzog (3.5/07): this bill “could prevent future litigation”.

    Tobacco analyst David Adelman (2/15/07): this bill gives the tobacco industry “an additional and potentially effective legal defense”

    Future Big Tobacco court utterance: “Yes, your honor, we see all these sick, dying customers here — but they smoked FDA approved cigarettes. We knew inside the company and industry that such reassurances meant nothing, but we liked the profits we got by misleading customers, and we knew FDA regulation would protect us from our lies when the customers started getting sick. Gotta go!”

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