Suit on Tobacco Ads Sparks Feisty Debate - washingtonpost.com

The Supreme Court waded yesterday into a complicated legal debate over whether tobacco companies can be sued in state courts for deceptive advertising of "light" cigarettes, a dispute that has divided government regulators and the business community.

As the justices began their new term, they engaged in a spirited oral argument over a lawsuit filed in Maine by three smokers against Philip Morris USA and its parent company, Altria Group. Using internal company documents and supported in part by the Bush administration, which helped them argue their case, the smokers accused Philip Morris of falsely marketing low-tar and low-nicotine cigarettes as less harmful than regular brands.

The tobacco company said it should be shielded from such state law claims by federal law, a position that drew skepticism from several members of the court's liberal wing. Conservative justices seemed generally more receptive to Philip Morris's argument, with Justices Samuel A. Alito Jr. and Antonin Scalia suggesting that if consumers were misled into thinking that light cigarettes are safer, the fault is more the government's.

"The FTC's position seems to me incomprehensible," Alito told a Justice Department lawyer, referring to the Federal Trade Commission's regulation of the industry through a controversial test that measures tar and nicotine yields. Alito added: "You've created this whole problem by, I think, passively approving the placement of these figures . . . in the advertisements. And if they are misleading, then you have misled everybody who's bought those cigarettes for a long time."

Justice Anthony M. Kennedy, often the deciding vote when the court divides along ideological lines, told an attorney for the smokers that he is probably "going to have difficulty in accepting your position in this entire case."

The argument in Altria Group v. Good was the latest in a growing national debate over "preemption," a doctrine under which state product liability lawsuits against companies can be thrown out under federal law. Courts are filled with such cases, and the Supreme Court decided several last term in favor of corporations. The justices will hear another major preemption case, involving the pharmaceutical industry, in November.