The plaintiffs in the Illinois class action lawsuit against tobacco companies, alleging that the companies fraudulently marketed "light" cigarettes, in violation of the state's consumer protection law, have asked the state Supreme Court to reconsider its decision which overturned a Madison County court's $10 billion verdict in the plaintiff's favor.
According to an article in the St. Louis Post-Dispatch, the primary basis for the request is the argument that "The Illinois Supreme Court should have asked federal regulators where they stand on marketing tactics for 'light' cigarettes before the court snuffed out a $10 billion tobacco judgment." The article states that the submitted motion "notes that the FTC was never asked specifically whether that was its universal policy on the issue. The motion requests that the court seek a specific opinion from the FTC and set a new hearing to consider it."
Apparently, this is the primary argument that will be used in an effort to convince the United States Supreme Court to review the decision. The lead plaintiff's attorney was quoted as saying: "The court's reliance on a misinterpretation of FTC action necessarily creates a basis for review before the United States Supreme Court."
The Rest of the Story
I don't believe that there is a sufficient basis for the Illinois Supreme Court to reconsider its ruling or for the Supreme Court to review this case, and even if there were some slight basis for the latter, I don't think it is substantial enough that the Supreme Court will have any interest in reviewing the case.
First, I don't see any particular need for the Illinois Supreme Court to have to conduct its own inquiry into the matter, rather than to rely on the evidence presented at trial. Is it not the plaintiff's responsibility to prove to the Court that state law has been violated, rather than the duty of the Defendants to prove that state law has not been violated? And is the burden not on the plaintiffs to provide evidence to the Court, rather than for the Court to have to perform its own inquiry?
It seems to me that the Court conducted a thorough and comprehensive review of Federal Trade Commission (FTC) actions related to the issue of "low-tar" and "light" cigarettes. Whether they misinterpreted FTC actions is a separate issue, but I see nothing to indicate that their review was not appropriate or that there is some need for the Court to seek a statement from the FTC.
Second, the other primary basis on appeal seems to be the argument that the Court misinterpreted FTC action: presumably, misinterpreting a consent agreement as representing a universal policy on the part of the Commission.
Unfortunately, I don't find that argument to be compelling. In my mind, an FTC consent agreement with one tobacco company does, in fact, seem to suggest a universal policy that other companies would be expected to follow. The converse of that would seem to represent inconsistent policy and unequal application of the law.
Remember that the most relevant consent order was issued in 1971 and involved a complaint against American Brands for implying in its advertising that certain cigarettes were low-tar: "The dispute between the FTC and American Brands was resolved in 1971, with the entry of a consent order that required American Brands to cease and desist from: Stating in advertising that any cigarette manufactured by it, or the smoke therefrom is low or lower in tar by use of the words low, lower, or reduced or like qualifying terms, unless the statement is accompanied by a clear and conspicuous disclosure of: 1. The tar and nicotine content in milligrams of the smoke produced by the advertised cigarette; and 2. If the tar content of the advertised brand is compared to that of another brand or brands of cigarette, (a) the tar and nicotine content in milligrams of the smoke produced by that brand or those brands of cigarette, and (b) the tar and nicotine content in milligrams of the lowest yield domestic cigarette. American Brands, 79 F.T.C. at 225."
Imagine, for example, that the FTC allowed American Brands to advertise cigarettes as low-tar according to the provisions outlined above, but later, did not allow Philip Morris to advertise cigarettes as low-tar at all. Even though the original consent order with American Brands could not be argued to hold the full force of law with regard to Philip Morris, it would be difficult to maintain that the FTC's actions were consistent with the law. This would seem to represent a clear example of unequal and inconsistent application of the law.
Thus, I do not find it unreasonable for Philip Morris to assume that the consent order with American Brands provided conditions for the use of the "low-tar" terminology that could be expected to apply to it as well as American Brands.
But that's not even really the central issue. The central issue is whether the Illinois Supreme Court could reasonably construe the consent order with American Brands (and the entirety of FTC actions on low-tar and light cigarettes) as "specifically authorizing" the advertising of light cigarettes by virtue of the FTC's regulatory application of the Federal Cigarette Labeling and Advertising Act.
And I don't find that to be a particularly unreasonable interpretation of the practical effect or intent of the consent order.
True, as a matter of the force of law, the consent order did not bind FTC from dealing differently with other companies. But as a practical matter, I think that it did bind FTC. Because a federal agency cannot willy nilly apply the law differently to different companies. The reason why the consent order only had the formal force of law with American Brands was simply that American Brands was the company about which a complaint had been filed, and which was therefore party to the consent order. It was not that somehow American Brands' actions were to be regulated differently than those of other companies because of some peculiarity about American Brands that did not apply to Philip Morris and other companies.
Thus, I simply do not see any terrible or substantial misinterpretation of the FTC's actions that would either necessitate Supreme Court review, or secondly, that, even if potentially suggesting that there might be an issue that could be reviewed, that the potential misinterpretation is substantial enough to interest the Supreme Court in taking this on.
As I suggested on December 21, I think this decision is final.