TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, October 7, 2008

Alito and Scalia Blame The FTC for Any Consumer Confusion About "Light" Cigarettes

Yesterday, the Supreme Court heard argument in the first case on its Oct. Term 2008 docket:  Altria v. Good.  In Altria v. Good, the plaintiffs allege that the use of the word "light" and "lower tar" on cigarette packaging misled consumers as to the dangers of those cigarettes.  As SCOTUS Blog reports, Justices Samuel A. Alito, Jr., and Antonin Scalia suggested that blame for the alleged deception should fall on the Federal Trade Commission for its tacit approval of the packaging:

Justice Alito was the most blunt: “The FTC’s position seems to me incomprehensible,” he remarked to a lawyer for the Commission. “You’ve created this whole problem by, I think, passively approving the placement of these figures in the advertisements.  And if they are misleading, then you have misled everybody who’s bought those cigarettes for a long time.”  The lawyer speaking for the Commission and the Justice Department, Assistant to the Solicitor General Douglas Hallward-Dreimeier, tried to put the onus back on the tobacco industry, saying the companies knew as early as 1967 that its claims of low tar and nicotine in “light” smokes were not valid, yet failed to tell the FTC. 

But that argument did not dissuade Justice Scalia.  “When did the Commission know this stuff?  I had a case when I sat on the Court of Appeals, so it had to be before 1984…It’s been general knowledge for a long time, and the FTC has done nothing about it.”

A copy of the oral argument transcript is available here (pdf)


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