Legal News

Supremes Kick off Term with Prayer and Light Cigarettes

By Dan Slater

Yesterday, before the first day of the Supreme Court’s fall term, four of the High Court’s five Roman Catholic justices — Kennedy, Roberts, Scalia and Thomas — joined the Jewish Justice Breyer for the annual Red Mass at the Cathedral of St. Matthew the Apostle. This morning, the justices joined their colleagues for an argument over light cigarettes.

In Altria v. Good — the first of two big preemption cases this term — the issue is whether state consumer-fraud laws can be used to sue cigarette makers for saying their brands are low in tar and nicotine. Big tobacco argues that the Federal Cigarette Labeling and Advertising Act preempts — both expressly and impliedly — conflicting state laws. In other words, the tobacco industry argues both that federal law on cigarette labeling expressly preempts state law claims, and that the fact the FTC has allowed such ads amounts to implied preemption of state law claims.

SCOTUS blog has a recap of the arguments. Looks like some justices blame the government for misleading consumers. Justice Alito reportedly told Assistant to the Solicitor General Douglas Hallward-Dreimeier, who was speaking for the Federal Trade Commission and the DOJ, that, “You,” meaning the FTC, “created this whole problem. You have misled everyone who has bought these cigarettes for a long time.” (The government sided with the smokers who sued, but only on the implied preemption question.)

Hallward-Dreimeier, reports SCOTUS blog, tried to put the onus back on the tobacco industry, saying the companies knew as early as 1967 that its claims of low tar and nicotine in “light” smokes were not valid, yet failed to tell the FTC.

To that, Scalia responded: “When did the FTC know this? I had a case when I was on the Court of Appeals [years ago] about this. It has been general knowledge for a long time, and the FTC has done nothing.”

According to SCOTUS blog, David C. Frederick, a Washington lawyer and former assistant to the SG who repped the four Maine smokers seeking to sue under state law for deceptive advertising, also ran into problems. He tried to argue that the case was not about smoking and health, but only about deceptive advertising. But several Justices said the only reason smokers would worry about tar and nicotine content was because of the health hazards of those substances.

Former SG Ted Olson, now of Gibson Dunn in D.C., repped Altria.

Click here for the full transcript of the arguments.

Correction: An earlier version of this posted incorrectly stated that the Red Mass service took place today.

Full post as published by Law Blog - WSJ.com on October 06, 2008 (boomark / email).