On the Likelihood for Supreme Court Review of the Price Decision

In a press release following the Illinois Supreme Court's decision throwing out the $10.1 billion verdict in the Price "light" cigarettes case, the Tobacco Products Liability Project (TPLP) argued that the "Basis of Decision Leaves Door Open for Appeal to U.S. Supreme Court."

The Rest of the Story

I view the situation differently, or else I view the door as being only ever so slightly ajar.

The reason is that the decision was based entirely on the Illinois Supreme Court's interpretation of an Illinois statute and of the application of the language of that statute in terms of what "authorization" means in regards to existing federal regulation of a consumer product. It was the court's interpretation of the statute that led to the decision that Philip Morris' use of the term "light" cigarettes was authorized by the Federal Trade Commission and therefore met the requirements for an exemption under the state law.

While TPLP argues that the Illinois Supreme Court "interpreted federal agency action in an arguably incorrect manner," the interpretation of the federal agency action was only relevant to the question of whether an exemption in a state statute was met or not. I don't see any compelling reason to believe that the Federal Trade Commission's actions were interpreted incorrectly, nor do I see a compelling reason why the U.S. Supreme Court would be particularly interested in reviewing how the state of Illinois interprets federal actions relevant to an exemption in its own state law.

On the contrary, I think that the actions of the Federal Trade Commission were quite clear. It asserted jurisdiction over the marketing of "light" and "low-tar" cigarettes. It asserted jurisdiction over claims related to the tar and nicotine levels in cigarettes. And it expressly allowed at least one company to use these terms. Moreover, it set out for this company the specific criteria that would have to be met in order for it to use these terms.

I simply don't see how the question of whether a consent agreement entered into by a federal agency represents a valid exception under the Illinois consumer protection statute represents any legal issue that the U.S. Supreme Court can consider, or will have any interest in considering.

My feeling is that this story is over.