Massachusetts smokers can use a consumer protection law to sue Philip Morris

The state’s highest court ruled Monday that Massachusetts smokers can use a consumer protection law to sue Philip Morris Inc. for the way it marketed Marlboro Lights.

The Massachusetts Supreme Judicial Court’s ruling — which closely mirrored a decision from the U.S. Supreme Court in December — means a class-action lawsuit brought by smokers who claim deceptive marketing can move forward.

In the U.S. Supreme Court case, the justices ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote “light” and “low tar” brands.

The Massachusetts court, in a unanimous ruling, cited the Supreme Court ruling and said the state’s law against deceptive marketing practices can be used by smokers who sued Richmond, Va.-based Philip Morris, which is owned by Altria Group Inc.

In their lawsuit, filed in 1998, the Massachusetts smokers claimed that Philip Morris engaged in deceptive marketing because Marlboro Lights did not deliver lowered tar and nicotine to smokers.

Philip Morris argued that the state’s consumer protection law is pre-empted by the 1965 Federal Cigarette Labeling and Advertising Act, which prohibits states from regulating any aspect of cigarette advertising that involves smoking and health.

The company also said the Federal Trade Commission allows the use of terms such as “light” and “lower tar and nicotine” on cigarette packages. The company stopped using the phrase “lower tar and nicotine” on packages in 2003.

But the state’s Supreme Judicial Court said the FTC has not given express permission to use those descriptors.

“This decision says that their use of those terms has never been permitted in a manner that would allow federal law to pre-empt the state’s consumer protection law,” said Thomas Urmy Jr., an attorney for the smokers, in an interview.

The ruling means the lawsuit can move forward, but the smokers will still have to prove that the use of the “light” descriptors actually violates the state’s consumer protection law.

Technically, there are only two plaintiffs, but they represent a class of people, a group Urmy said is “in the thousands,” although he could not estimate how many.

In a statement, Philip Morris said the company believes it has “strong defenses” to the claims made in the lawsuit.

“Potential class members generally have no claim for damages because each of them paid the same price for Marlboro Lights as they would have paid for full-flavored Marlboros. In addition, many of these potential class members have continued to smoke Marlboro Lights despite their claims,” Murray Garnick, associate general counsel for Altria Client Services, speaking on behalf of Philip Morris.

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