The US Supreme Court ruled today in a 5-4 split won by the court’s liberals, that smokers may use state consumer protection laws to sue cigarette makers for the way they promote "light" and "low tar" brands. The decision forces tobacco companies to defend dozens of suits filed by smokers in Maine, where the case originated, and across the country. The Supreme Court’s "surprise" ruling in Altria Group v. Good, refuses to exempt the cigarette maker from a state lawsuit on the grounds of pre-emption.

Justice John Paul Stevens, writing for the majority in Altria Group v. Good, rejected Altria’s assertion that the Federal Cigarette Labeling and Advertising Act pre-empts state tort actions. The ruling runs against the Court’s recent trend in favor of federal pre-emption in cases involving tort litigation against businesses.

Pre-emption has been a major issue before the Court in recent years. Pre-emption is the legal theory that when a federal agency sets minimum requirements for a product or safety standard, state law is "pre-empted" and someone or some business adhering to that standard cannot be held responsible for injuries under state law. In other words, if you follow the federal minimum, it doesn’t matter how negligent your actions may otherwise be.

In Riegel v. Medtronic the Court held that if a medical device is approved by the FDA after undergoing the FDA’s "rigorous" pre-market approval process, an individual cannot maintain a product liability action against the manufacturer. The problem is, there is nothing "rigorous" about the pre-market approval process. In fact, as many have learned with the Vioxx situation, the FDA simply does not have the resources to make any type of meaningful evaluation of products or drugs.

Pre-emption has been asserted by corporations to escape wrongdoing that they would otherwise be held responsible for.

But in this case, the Court did not give the cigarette company a free pass.

Pre-emption will still be a major issue this term. The Court is expected to issue its opinion in Wyeth v. Levine, a case that addresses pre-emption as it relates to pharmaceutical products. With the Court’s ruling in the cigarette case, consumers are now 1-1 when it comes to maintaining the right to bring suit in a state court. All eyes remain focused on the Court as its opinion in Wyeth is due.

The Supreme Court’s ruling shouldn’t be a surprise for those who long ago realized that a guiding principle of lawyers, even after being elevated to the bench, is what’s good for business is good for the country. Opening another litigation floodgate is certainly good for lawyers but, as is usually the case, very bad for the country.

Although the views of the people themselves counts for little in this country these days, it’s worth noting that 71% of U.S. voters say the companies should not be held liable (stored copy) for health problems that current smokers develop.



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