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
Some jurisdictions allow an individual or organization to initiate an action against another private party who is not following a particular law. For example, a person may sue a restaurant that allows smoking despite a smoke free law. If the plaintiff is claiming the violation of the law caused physical harm, this may also be a personal injury case.
An individual or organization may seek civil damages against a tobacco company based on the claim that the use of tobacco products causes disease or death. Some of these cases will relate to general tobacco products, while others will relate to specific subcategories of tobacco products--for example, light or low products, menthol or other flavored products. Additionally, there may be cases relating to exposure to secondhand smoke.
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging.
(See FCTC Art. 11)
Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.
The subject matter of the case should be dealt with at a state level or national level.
Type of Tobacco Product
None
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"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."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.