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COL Regarding big tobacco, Will got it wrong

By Edward L. Sweda, Jr.

As a resident of a state whose highest court in 2004 upheld the right of consumers to bring a class action lawsuit against Philip Morris for its "light" cigarettes scam, I take strong exception to George Will's ("States Depend on Smokers," Jan. 2) embrace of the reasoning of the majority of the Illinois Supreme Court in overturning a $10.1 billion verdict against the cigarette giant.

The majority opinion, which reached the bizarre conclusion that effectively giving immunity to corporations that mislead the public is somehow good for the people of Illinois, has at its foundation an exercise in historical revisionism.

Trying to shield Philip Morris from the accusation of fraud in the marketing of its so-called "light" cigarettes, Will states that the "Federal Trade Commission has ratified the use of light and low-tar labels."

Not so.

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Regarding cigarettes, the FTC has never promulgated a single trade regulation governing cigarette advertising that has ever been in effect. No FTC regulation, document or official statement has ever regulated "low tar" and "lights" descriptors. Furthermore, the defendant in this case, Philip Morris, in 2002 (two years after the Illinois lawsuit had been filed) petitioned the FTC to issue a rule to allow tobacco companies to continue using terms such as "light" and "low tar." The FTC never did issue such a rule.

One of Philip Morris' own expert witnesses at trial acknowledged that a cigarette company's decision to use the descriptors "light" or "low-tar" is voluntary and that there is no FTC rule requiring their use.

This expert also admitted that, if the "light" cigarette delivered the same levels of tar and nicotine as "regular" cigarettes, the "light" descriptor would be false and misleading.

In August 2004, the Massachusetts Supreme Judicial Court ruled in Aspinall v. Philip Morris that "a class action is not only an appropriate method to resolve the plaintiffs' allegations but, pragmatically, the only method whereby purchasers of Marlboro Lights in Massachusetts can seek redress for the alleged deception. " As for state supreme court rulings on the tobacco companies' "light" cigarette scam, Massachusetts got it right, Illinois got it wrong, and the other 48 states will rule in the future.

Edward Sweda, Jr. is senior attorney for the Tobacco Products Liability Project, which is based at Northeastern University School of Law in Boston (www.tobacco.neu.edu).

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