Sullivan, et al. v. Philip Morris U.S.A., et al.

Plaintiffs claimed breach of express and implied warranties and intentional misrepresentation, arguing that Philip Morris U.S.A. and others marketed "light" cigarette brands as if they had lower levels of tar and nicotine than regular cigarettes, when in fact these cigarettes were as harmful as regular cigarettes. In their motion for summary judgment, defendants argued, among other things, that plaintiffs' claims were preempted by the Federal Cigarette Labeling and Advertising Act and barred by the Louisiana Unfair Trade Practices and Consumer Protection Act (LUTPA) which exempts certain conduct from liability.   The Court found that plaintiffs' cause of action was not preempted by the Labeling Act.  The Court granted defendants' motion to the extent that plaintiffs' claims made pursuant to LUTPA will be dismissed.  Otherwise the Court denied defendants' motion.

Sullivan, et al v. Philip Morris U.S.A., et al, 2005 WL 2123702 (W.D. La. 2005).

  • United States
  • Aug 31, 2005
  • United States District Court, W.D. Louisiana
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Parties

Plaintiff

  • Jack Sullivan
  • Others

Defendant

  • Others
  • Philip Morris U.S.A.

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Plaintiffs assert that Philip Morris manipulated nicotine levels by finding a way to "trick" the testing machines so that light cigarettes would show lower tar and nicotine levels, when in fact Philip Morris knew that humans smoking the cigarettes would consume similar nicotine levels as experienced from regular cigarettes. Philip Morris ignores the fact that instead of changing its labeling, it could possibly have designed a light cigarette that would actually deliver less tar and nicotine in the hands of a consumer. Plaintiffs cite Wright v. Brooke Group Ltd., et al., to support its position that post-1969 claims that the tobacco industry concealed facts are not preempted when a plaintiff alleges that the defendants "knowingly designed, manufactured and distributed a product which they knew was both carcinogenic and addictive and, thus, not fit for the ordinary purpose for which it was intended." Plaintiffs are not asking Philip Morris to change its labeling. Plaintiffs are seeking an action in redhibition because the product itself was defective. The FTC method of testing gave lower tar and nicotine measurements than what each light cigarette actually delivered to a human smoker. Hence, the product was not reasonably fit for its intended purpose-to deliver lower tar and nicotine. Because this cause of action does not impose a requirement or prohibition based on smoking and health with respect to advertising or promotion, it is not preempted by the Labeling Act."