Mulford, et al. v. Altria Group, Inc., et al.

Plaintiffs, smokers who purchased Marlboro Lights and Cambridge Lights brand cigarettes in New Mexico, brought a class action lawsuit against Philip Morris and Altria Group, Inc., claiming that the tobacco manufacturers deceptively marketed cigarettes as "lowered tar" and "lights" in violation of the New Mexico's Unfair Trade Practices Act (UPA). The Plaintiffs argued that the manufacturers caused them economic damage by purposely designing the particular brands of "light" cigarettes to register lower amounts of nicotine during the consumer protection agency's tests than those that consumers would actually ingest. The plaintiffs further claimed that the companies fraudulently concealed evidence of its knowledge that behavioral factors increased overall nicotine consumption. The defendant companies moved to dismiss the suit, asserting that the statute and the Federal Cigarette Labeling and Advertising Act (FCLAA) already sufficiently regulated the plaintiffs' claims of UPA violations. The U.S. District Court for the District of New Mexico found that FCLAA did sufficiently regulate the plaintiffs' claims insofar as they were based on theories of fraudulent concealment, failure to warn, and warning neutralization. However, the Court allowed the plaintiffs' claim based on fraudulent misrepresentation because the FCLAA did not expressly regulate that specific claim. 

Mulford, et al. v. Altria Group, Inc., et al., 506 F.Supp.2d 733 (D.N.M. 2007).

  • United States
  • Mar 16, 2007
  • United States District Court, District of New Mexico
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Parties

Plaintiff

  • Cory Fox
  • Harrison Mulford III
  • Others similarly situated
  • Rhonda Newby
  • Richard DeLuna

Defendant

  • Altria Group, Inc.
  • Philip Morris USA, Inc.

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"For all the foregoing reasons, the Court determines that the UPA exemption in § 57-12-7 applies to and requires dismissal of Plaintiffs' UPA claim based on Marlboro Lights and Cambridge Lights advertisements that contain the words "lights" and/or "lowered tar and nicotine" accompanied by the tar and nicotine content in milligrams of the cigarettes according to FTC Method testing. It is undisputed, however, that Marlboro Lights cigarette packages have never contained numerical information concerning tar and nicotine yields. Pls.' Ex. 5 at 7. The Court therefore cannot find based on the record currently before it that the 1971 and 1995 consent orders expressly permit use of the term "Lights" on cigarette packages when there is no disclosure of the FTC Method ratings of the cigarettes. Philip Morris nevertheless argues that the FTC expressly permitted the use of the term "lights" in its Marlboro Lights packages in its October 1967 policy statement in which the FTC stated it would not challenge representations relating to tar and nicotine content so long as' they were accurate and substantiated by the FTC Method. The problem with this argument, however, is that the 1971 consent order modified, or at least clarified, the October 1967 policy by stating that representations of "low" tar and nicotine, and other like terms, were permissible only when accompanied by disclosure of FTC Method tar and nicotine levels. At the time Marlboro Lights cigarettes entered the market, the FTC's most recent and specific policy expression was set forth in the 1971 American Brands consent order. Because an agency is free to change or modify its policies over time, this Court must therefore look to the language of the 1971 consent order to determine what the FTC expressly authorized in cigarette advertising at the time Marlboro Lights cigarettes entered the market. The record also does not indicate that, after 1971, the FTC "expressly permitted" the use of the term "lights" on cigarette packages without the inclusion of FTC Method ratings."
"In sum, Plaintiffs' UPA claim alleges a fraudulent misrepresentation claim arising from a duty not to deceive, which is not expressly preempted by the FCLAA. To the extent Plaintiffs' UPA [Unfair Practices Act] claim can be construed as a failure-to-warn, fraudulent concealment, or warning neutralization claim, those theories are expressly preempted by the FCLAA. Plaintiffs are thus limited to their claim that the use of the descriptive terms "lights" and "lowered tar and nicotine" on packaging and advertising for Marlboro Lights and Cambridge Lights cigarettes is deceptive, and that the Plaintiffs relied on these deceptive representations to their detriment."