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Thursday, October 9, 2008

Court Hears First Preemption Case

The Supreme Court opened its term Monday by hearing arguments in Altria Group v. Good, which will determine whether tobacco companies can be held liable for misleading advertisements for so-called “light” cigarettes. The case, which stemmed from a class action lawsuit in Maine, deals with the tricky legal question of preemption, a theme that has been cropping up with increasing frequency on the Court's docket. The highly publicized case, Wyeth v. Levine, which will be argued on November 3rd, also deals with preemption, but in reference to pharmaceutical companies and drug safety.

Ted Olsen, former Solicitor General of the United States who argued Bush v. Gore in front of the Supreme Court and currently sits on John McCain’s judicial selection committee, argued on behalf of the tobacco giant Altria Group, which includes Marlboro manufacturer Phillip Morris. Mr. Olsen claims that, because the Federal Trade Commission (FTC) gave cigarette manufacturers the freedom to make assertions regarding the safety of their products, as long as they were based on a particular testing method, tobacco companies are immune from liability for injuries resulting from their products. The respondents argue that Altria knew that real smokers compensated for the lower tar and nicotine levels in “light” cigarettes by smoking more or inhaling deeper, but continued to market its product as a safer alternative.

The justices hearing the case seemed open to Mr. Olsen’s argument that FTC regulations preempt state laws, including Maine’s Unfair Trade Practices Act. If the Court sides with Altria and says that preemption doctrine does apply here, it would severely limit states’ ability to regulate the marketing of cigarettes. Perhaps most concerning is that during oral arguments, Justice Alito seemed to agree with the underlying principle that these cigarettes were just as harmful, even with lower tar levels, but placed the blame on the FTC for “passively approving” these misleading marketing practices instead of Altria. This pro-business interpretation seems to absolve corporations of any responsibility whatsoever, placing the blame solely on the shoulders of regulators.

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