It’s long been known that people smoking “light” cigarettes smoke them differently. They inhale more, smoke more cigarettes and/or cover the air holes in the filter. The FTC requires that cigarette companies use the “Cambridge Filter Method” for testing tar and nicotine levels, and that method shows lower levels. But it doesn’t accurately recreate the way people actually smoke, and people really end up getting about the same amounts of tar and nicotine whether they smoke light cigarettes or not.
Not really relevant to the legal arguments, but the U.S. government took a position in the case and received 10 minutes of time, argued by Assistant Solicitor General Douglas Hallward-Driemeier. Justice Alito grilled him about whether the FTC had tacitly approved the use of these figures. “If these figures are misleading, you should have prohibited them a long time ago.” He said that the FTC had created the problem at the base of this case, saying that, “If they are misleading, then you have mislead.” Justice Scalia seemed to concur, noting that he had heard a case on a similar issue (“lip draping,” the covering of the filter air holes with one’s lips) when he was on the circuit court between 1982 and 1986. “It’s been general knowledge for a long time, and the FTC has done nothing,” he said.
The questions in the case dealt with whether the deceptive advertising claims, brought in state courts, should be allowed under federal law. There is a federal law regulating labeling on cigarettes, and the question is whether federal law controls (meaning any action would have to come from the FTC) or whether cases like this should be allowed. There was a lot of discussion about whether the case relies on “smoking and health” or whether it’s a purely deceptive advertising case. Altria and the Justices noted that if there were no health distinction, there would be no case, but the respondents argued that this was just a run-of-the-mill deceptive advertising case and presented no special burden on cigarette companies. They argued that the federal law was passed to keep states from having extra regulations focused on cigarette companies, but that it wasn’t supposed to prevent general state laws, which apply to everyone else, from being enforced.
There was also a big question as to the relief being sought. Respondents said at first that they were not asking for an injunction to force additional warnings or stop selling the cigarettes, but Mr. Frederick later admitted he had misspoken. Still, he argued the main thing they were asking for were damages. He could not, however, explain what damages he was asking for. He said there was an economic cost when people bought the light cigarettes instead of normal ones, but under questioning by Justices Scalia and Souter admitted the cigarettes cost the same whether light or not. Further, he tried to argue that there would be damages even if the smokers could show no health effects—if they were Olympic athletes, for example. The Court may decide that this lack of demonstrated harm means that the plaintiffs are owed no money, and therefore there is no case.