Illinois Supreme Court Ruling Does Not Absolve Philip Morris And Shows Need for Congress to Curb Tobacco Industry’s Deceptive Practices

Washington, DC — Basing its ruling on state law, a divided Illinois Supreme Court today overturned a lower court verdict ordering Philip Morris to pay $10.1 billion in damages for defrauding consumers by marketing “light” cigarettes as less hazardous. While disappointing, this ruling does not absolve Philip Morris of the deceptive marketing of light cigarettes and the devastating consequences for public health. As the Court majority itself stated, “Our resolution of the present case is in no way an expression of approval of PMUSA’s alleged conduct.” In fact, the Court majority indicated agreement with one of the primary claims made against Philip Morris, finding that “many smokers of Lights likely inhaled just as much tar as they would have had they remained smokers of regular cigarettes.” In other words, the Court acknowledged that Philip Morris’ marketing was deceptive, but it held that the effects could not be addressed under state law. There is nothing in today’s ruling that challenges the conclusions of public health authorities, including the National Cancer Institute, and of the trial court judge in this case that the tobacco companies for decades have deceived consumers and deterred smokers from quitting by marketing “light” cigarettes as less hazardous despite knowing from their own research that this was not the case.

Because it was based on an interpretation of specific language in an Illinois state law, this ruling does not apply to approximately two dozen “light” cigarette lawsuits pending in other state and federal courts and therefore is far from the last word regarding litigation over the deceptive marketing of “light” cigarettes. Several of these lawsuits have been certified as class-action cases, including by the Massachusetts Supreme Court.

The Illinois Supreme Court based its decision on a section of the Illinois Consumer Fraud Act that exempts conduct “specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States.” The majority opinion states, “We have resolved the present case entirely on the basis of state law by construing and applying an exemption clause in state statute. We do not address PMUSA’s arguments that this action is expressly or impliedly preempted by federal law.”

Nevertheless, the court majority did conclude that the Federal Trade Commission “had specifically authorized tobacco companies to characterize their products as “light” or “low tar and nicotine.” We share the views of the dissenting justices in this case that this conclusion is incorrect. The FTC has never issued any regulation or agency statement authorizing the use of these terms.

The real problem is that Congress has never granted any federal agency effective authority to regulate the manufacturing, marketing and sale of tobacco products. This has allowed the tobacco companies to continue marketing their products to children and to continue deceiving consumers with unproven health claims about “light” and so-called “reduced risk” products. It is past time for Congress to finally protect public health by enacting legislation granting the U.S. Food and Drug Administration effective authority over tobacco products. Among other things, this legislation would grant the FDA authority to ban terms like “light” and “low-tar” and strictly verify and regulate other health claims about tobacco products. The Justice Department should also stand firm against a weak settlement of its lawsuit against the tobacco companies, which presents another opportunity to hold the industry legally accountable and change its harmful practices, including prohibiting the use of misleading terms like “light” and “low-tar.”

Tobacco use is the leading preventable cause of death in our country, killing more than 400,0000 people and costing the nation more than $180 billion in health care bills and lost productivity each year. Philip Morris and other tobacco companies must be held accountable for the wrongful practices that have caused and continue to cause so much harm. And elected officials must be held accountable if they fail to enact policies to stop the industry’s harmful practices and reduce tobacco’s terrible toll.