For a moment last week, that seemed about to change. A ruling by the U.S. Supreme Court permitting lawsuits against the tobacco companies was hailed by consumer groups as the first wave in a flood of litigation that would eventually drown the cigarette industry. Indeed, it looked like any product that posed health risks, from beer to sleeping pills, was suddenly vulnerable.
But the fine print told a different story. The court’s ruling, in Cipollone v. Liggett Group Inc., will in fact permit more lawsuits. But winning them will be exceedingly difficult. Rose Cipollone died of lung cancer in 1984, a year after suing three cigarette companies. She had smoked for 40 years. Her family was awarded $400,000, but an appeals court threw out the case and the award, ruling that companies could not be sued by people who smoked after warning labels were placed on cigarettes in 1966.
Ironically, the federal regulations in question were originally aimed at protecting consumers. After Congress required tobacco companies to stick health warnings on cigarette packs and ads, a 1969 amendment to the law specifically barred the states from making any laws on the advertising or labeling of cigarettes. For years federal courts ruled that the law also prohibited suits based on misleading statements by tobacco companies after 1969.
By a 7-2 vote last week, the Supreme Court carved out an exception. Cigarette smokers, the court ruled, could sue for fraud. But plaintiffs have to prove that companies covered up information that smoking was harmful. What consumer, having read the cancer-warning labels, can successfully claim that the tobacco firms were trying to conceal the health risks of smoking?
The tobacco industry claimed victory. Winning a suit based on fraud would be like climbing “Mount Everest in tennis shoes,” said Victor Schwartz, a lawyer who defends tobacco companies. Other industries denied any great concern. Spokesmen from liquor and pharmaceutical industries, both subject to federal labeling regulations, doubted the ruling would open them to more lawsuits, and most legal experts agreed.
But personal-injury lawyers welcome any chance to get their clients before a jury, even if the odds are stacked against them. Their hope is to convince jurors that cigarette makers dupe people into a lethal habit, despite all the warnings. Harvard Law School’s Laurence Tribe, who represented the Cipollone family before the high court, argues as well that the decision opens up new possibilities for state and local regulation. Under the ruling, advertising and labeling remain the preserve of federal regulation, but states can still require tobacco companies to disclose information in other ways, such as 800 numbers. The new furor over “passive” smoking may also open the door. Seven flight attendants have already sued tobacco firms for concealing the dangers posed by cigarette smoke. Juries, presumably, will be sympathetic to plaintiffs who never decided to smoke in the first place.
