The Court convened Monday to begin the new term and first heard oral arguments in Altria Group v. Good. The case revolves around whether or not federal labeling regulations on the use of ‘light’ or ‘low-tar’ cigarettes preempts state deceptive advertising claims.
Theodore Olsen opened arguments on the day on behalf of the tobacco companies and had a relatively comfortable exchange with the justices. Justices Ginsburg and Breyer first expressed concern that a ruling against the states might silence an overly broad swath of deceptive advertising claims against cigarette companies and Mr. Olsen conceded that its “probably true in most cases [that] … regulations at the State level having to do with cigarettes and advertising by and large [are] going to have to do with smoking and health.
Olsen also completely drops the implied preemption argument. The briefs filed earlier on the matter argue at length that a federal regulation like that of the FTC places an implied preemption over the states. He argued before the court that in most deceptive advertising cases, the FTC works in conjunction with state regulators and it is specifically because Congress mentioned cigarette advertising like it did that this realm is preempted.
David Frederick began arguments for the state of Maine with a lengthy exchange with the Chief Justice and Justice Alito, both of whom were hard pressed to find a distinction between this case and Riegal v. Medtronic, a case decided last year that applied preemption over the states for a seemingly similar statute.
The argument then shifts over to a discussion over the damages that the plaintiff is seeking. Justice Souter leads a line of questioning over exactly what damages the plaintiff is hoping to recover and Frederick explains they they are seeking the “difference in value between a product we thought we were buying and a product we actually bought.” He continues that certain economist have argued that people are more likely to quit smoking if they know the full effects of smoking and the deceptive labels ‘light’ and ‘low-tar’ merely prolonged their use of tobacco because they thought they were buying a safe product. The problem, as Justice Souter points out, is that in order for this story to play out, the cigarettes sold must be proven to be unsafe or at the least, there must be a discussion of the relationship between smoking and health. At that point, Justice Souter argues, the case is clearly preempted by federal law. Mr. Frederick adamantly argues that the link between smoking and health is irrelevant, the question here revolves around a general truth-in-advertising regulation.
Mr. Frederick brings up an interesting argument during a dialogue with Justices Kennedy and Ginsburg. Under Riegal and past preemption cases, an attorney general or any private party may bring suit against a cigarette company for lying about the tar or nicotine content of a light cigarette, but an attorney general may not regulate cigarette makers to place labels on their cigarettes saying that they are not less harmful. The reason being, a broad regulation like that would not leave open the possibility of cigarette companies to prove that their cigarette actually contains less tar.
During argument on behalf of the federal government, Justice Alito made his opinion on the whole matter very clear:
JUSTICE ALITO: The FTC’s position seems to me incomprehensible. If these figures are meaningless, then you should have prohibited them — are misleading, you should have prohibited them a long time ago. And you’ve created this whole problem by, I think, passively approving the placement of these figures on the — on — in the advertisements. And if they are misleading, then you have misled everybody who’s bought those cigarette for a long time.
The arguments in this case seem clearly lopsided. Justices across the board were confused at exactly how this case is any different from recently decided cases and long-held precedents concerning federal preemption over deception advertising statutes. The only question I have about his case now is whether it will be decided 7-2 (Ginsburg, Breyer on the bottom,) or 9-0.