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Supreme Court to hear closely watched preemption case today

By Chris Rizo | Oct 6, 2008

U.S. Supreme Court building

WASHINGTON (Legal Newsline)-When the U.S. Supreme Court justices return to the bench today for the first time since June 26, they will hear oral arguments in a closely watched case involving federal preemption.

The tobacco company Altria Group is asking the high court to block a class action lawsuit by a group of Maine smokers who say they were misled by the company's advertising that so-called "light" and "low tar" cigarettes are a safer alternative to regular cigarettes.

The 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.

A federal judge agreed and dismissed the class action, but the 1st U.S. Circuit Court of Appeals in Boston overturned the decision.

In a brief to the court, the National Association of Manufacturers wrote that if the appeals court decision is affirmed that 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 case -- Altria Group v. Stephanie Good -- is just one of the cases before the court's fall term that deals with federal preemption.

On Nov. 3, justices will hear oral arguments in the case of a Vermont woman whose forearm was amputated because of a reaction to an injected anti-nausea drug, Phenergan.

The plaintiff, Diana Levine, lost an arm to gangrene after an injection of the drug Phenergan.

The drug causes gangrene if it comes in contact with arterial blood, so the medication is typically given by intramuscular injection or intravenously.

Levine says that method of using the drug wasn't safe under Vermont state law.

A jury awarded her more than $6 million to Levine because Wyeth failed to warn her adequately about the risks of the drug. Wyeth, however, says her claims are preempted by the U.S. Food, Drug and Cosmetic Act.

In a brief to the high court, the Product Liability Advisory Council Inc. said if the decision is allowed to stand, manufactures would be forced to choose between following state laws or federal law.

"If they decide to comply with federal law, they will-like petitioner in this case-be exposed to multimillion dollar state-law tort liability," the brief said. "No company should be forced to make that choice or to suffer those consequences."

From Legal Newsline: Reach reporter Chris Rizo at chrisrizo@legalnewsline.com.

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