Singer: Consumer protection laws shouldn't be preempted

Chris Rizo Oct. 7, 2008, 1:10am

Linda Singer

WASHINGTON (Legal Newsline)-If the U.S. Supreme Court rules that state consumer protection laws cannot be used to sue cigarette makers it would mark a blow to Americans, a leading expert told Legal Newsline.

The high court heard oral argument Monday in the case that will decide whether a class of Maine smokers can sue Altria Group Inc. over allegations the company advertised so-called "light" and "low tar" cigarettes are a safe alternative to regular cigarettes.

"The real struggle over preemption over the last decade, in particular for state AGs, has been the federal government exerting preemption over fields it had no intention in occupying," said Linda Singer, co-chair of the State Attorney General and Public Client Practice at Zuckerman Spaeder LLP.

Singer, the former attorney general for the District of Columbia, told Legal Newsline that at Monday's argument the justices pressed the government over its failure to take action against the cigarette maker, and indicated the federal government's regulatory failures did not let the tobacco company off the hook.

"The fact that the government does not act does not mean it acquiesces to misconduct. That was really the implied preemption argument," she said. "The expressed preemption was where the court really focused, and that is a tougher case."

The Maine class is suing Altria Group and its Philip Morris USA unit, claiming they broke Maine state law barring deceptive business practices.

Altria has said the case should not move forward since tobacco products are regulated by the Federal Trade Commission, not by individual states. Specifically, Altria said the claims are preempted by the Federal Cigarette Labeling and Advertising Act of 1965.

The class action seeks to recover money smokers spent on Marlboro Lights and Cambridge Lights through November 2002. They are also seeking punitive damages.

At arguments, Associate Justice Samuel Alito told Assistant Solicitor General Douglas Hallward-Dreimeier, who was representing the federal government, that the Federal Trade Commission "created this whole problem. You have misled everyone who has bought these cigarettes for a long time."

Singer predicted that the high court would ultimately find that the federal legislation did expressly preempt the state. She said the ruling would be a setback for state attorneys general and consumers, alike.

"The state AGs have been the most vigorous voices of consumers, and without them having the authority to act I think consumers will be left in a lurch," she said.

In an amicus brief to the court, the National Association of Manufacturers wrote that if the appeals court decision is affirmed the nation's manufacturers could be "profoundly affected" because they would not be able to rely on their respective federal regulators with certainty.

"Manufacturers need the assurance of the court that in relying upon the guidance of federal regulators, they will not expose themselves to state law liability in different courts across the country," the brief said.

The threats outlined by the National Association of Manufacturers and others are only "real at the margins," Singer said.

"Here you have a cigarette company that was making a claim that was patently false; that it knew was false, that the federal government knew was false. In fact the only people who were in the dark were consumers," Singer said.

"This wasn't a matter of close line-drawing. 'Oops. We would have been OK in New Jersey, but in New Mexico we're out of bounds.' What they did was so clearly crossed the line that no possible legitimate argument that a cacophony of state laws throws them off," Singer said.

Besides, she said, state consumer protection laws are the same in all states: "What they say is that you cannot lie to consumers," she said.

As for a way to avoid future preemption challenges, Singer said the federal government "has to again embrace its role" as regulator. She said state attorneys general have largely had to fill that vacuum.

She also said Congress needs speaks with a clear voice when it means for states to step back on a particular issue.

"There is a value to state enforcement. State attorneys general and other enforcement officials are much closer to the issues; they are the ones who are most likely to hear from consumers who are aggrieved or injured, and they have often a much more informed sense of what a remedy should be," Singer said.

"There is absolutely a role for the state attorneys general and it shouldn't be preempted lightly," she added.

The case is Altria Group Inc. v. Good, 07-562.

From Legal Newsline: Reach reporter Chris Rizo at

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