California Court Finds Philip Morris Misrepresented Health Benefits of Marlboro Lights, Lead Trial Counsel for Plaintiffs, Mark P. Robinson, Jr. of RCRSD Reports

On September 24, 2013, following a three month trial and almost sixteen years of litigation, San Diego County Superior Court Judge Ronald S. Prager issued a long-awaited ruling (case No. 711400) against cigarette manufacturer Philip Morris USA, Inc., finding that over a period of several years the company had deceptively marketed its top-selling Marlboro Lights as being less harmful than regular full-flavored cigarettes.

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...the evidence showed that the public was misled into believing that light cigarettes were ‘lighter’ and less harmful than regular cigarettes

Newport Beach, CA (PRWEB) September 26, 2013

In a 21 page ruling concluding Case No. 711400, Judge Prager found that Philip Morris USA “misrepresented that Marlboro Lights were less harmful than Marlboro Reds and other full-flavored cigarettes,” even though “PM USA knew there was no health benefit.” The Court found that “PM USA’s own research from as early as the 1970’s revealed that, as actually smoked, Marlboro Lights provided no significant reduction in the amount of tar and nicotine ingested by most smokers,” but that “PM USA continued to sell light cigarettes without correcting this deception and persistently failed to disclose that Marlboro Lights actually provided smokers with the same amount of tar and nicotine as regular cigarettes.”

The certified class action lawsuit, which was brought on behalf of California residents who smoked Marlboro Lights at any time from January 1, 1998 to April 23, 2001, alleged that Marlboro Lights, which were marketed as being lower in tar and nicotine, were not in fact any less harmful than regular cigarettes. The plaintiffs contended that, by suggesting that Marlboro Lights were lower in tar and nicotine, and therefore healthier than regular full flavored cigarettes, Philip Morris deceived the public and violated California’s laws prohibiting false advertising and unfair competition. Originally filed in 1997, the case was decertified in 2004, only to be revived again in 2009 when the plaintiffs won their appeal in front of California Supreme Court. In the interim, the plaintiffs received an assist from the United States Supreme Court, which held in another case (Altria Group, Inc., et al. v. Stephanie Good, et al., case no. 07-562) that false advertising claims involving light cigarettes are not prohibited by federal law. Despite several attempts by Philip Morris to decertify the class, Judge Prager allowed the case to proceed as a certified class action, and denied a motion at the end of the trial to decertify the class.

Although the ruling declined to order restitution or corrective advertising originally sought by the plaintiffs, the Court found in favor of the Plaintiffs on the core contested liability issues. Among the Court’s findings were that:

  • “PM USA MISREPRESENTED THE HEALTH BENEFITS OF MARLBORO LIGHTS”
  • The “Descriptors ‘Lights’ and “Lowered Tar and Nicotine’ represented a health benefit”
  • “PM USA misrepresented that Marlboro Lights were less harmful than Marlboro Reds and other full-flavored cigarettes”
  • “PM USA knew there was no health benefit.”
  • “PM USA’s own research from as early as the 1970’s revealed that, as actually smoked, Marlboro Lights provided no significant reduction in the amount of tar and nicotine ingested by most smokers.”
  • “PM USA continued to sell light cigarettes without correcting this deception and persistently failed to disclose…”

The 21 page ruling also reviewed the wealth of epidemiological evidence presented by the Plaintiffs supporting their allegations: “Various mutagenicity studies by PM USA beginning and continuing to 2001 showed light cigarette smoke caused more harmful mutations in bacteria than regular cigarette smoke.” ;“During the 1980’s into the early 1990’s, PM USA scientists performed three different animal studies on the propensity of cigarette smoke to produce tumors in animals. In each of these studies, the light cigarette smoke produced more tumors in animals than regular cigarette smoke.”

The Court also cited evidence linking increasing trends in lung cancer with a phenomenon involving light cigarettes known as compensation. “Beginning in the 1950's with the advent of filter cigarettes and continuing in the 1970's to the present with increased popularity of lower tar and nicotine cigarettes such as Marlboro Lights, there has been a continuing trend to lower tar and nicotine cigarettes. Despite this trend, epidemiological evidence has shown an increased rate of lung cancer among cigarette smokers. During these years, there has also been an increase in adenocarcinoma, a cancer of the deeper, alveolar regions of the lungs. Dr. Burns and other well qualified experts explain this increase is caused by compensation, the tendency of light cigarette smokers to inhale more deeply to achieve the same nicotine levels provided by less deep inhalation of regular cigarettes.” Finding that “Compensation Is Essentially Complete,” Judge Prager stated that “Internal memos written to high level employees of PM USA from the late 1960‟s until the 1990‟s establish that PM USA‟s scientists and executives knew the mechanics of compensation and that compensation was essentially complete so that smokers maintain essentially the same dosage of nicotine regardless of whether they smoke a light or a regular cigarette.”

Under the heading “Likely to Deceive” Judge Prager stated that “At the highest levels of PM USA in the 1990’s, top administrators such as James Morgan, CEO, and Ellen Merlo, Vice President, knew that Marlboro Lights were no healthier than Marlboro Reds. PM USA’s internal documents revealed that high level executives knew that smokers perceived that light cigarettes such as Marlboro Lights were less harmful than full-flavored cigarettes such as Marlboro Reds. These beliefs were confirmed by smoker perception studies funded by PM USA which showed that smokers believed light cigarettes were less harmful. Yet before and during this class period, PM USA continued to sell light cigarettes without correcting this deception and persistently failed to disclose that Marlboro Lights actually provided smokers with the same amount of tar and nicotine as regular cigarettes because of the way Marlboro Lights were actually smoked.”

Mark P. Robinson, Jr., of Robinson Calcagnie Robinson Shapiro Davis, Inc., was lead trial counsel for the plaintiffs. Robinson first gained notoriety decades ago representing the plaintiff in the Ford Pinto gas tank explosion case, Grimshaw v. Ford Motor Company. Since then he has been at the forefront of high-profile products liability cases nationwide, including the Vioxx pharmaceutical litigation, the Toyota unintended acceleration litigation, and the Zoloft birth defect litigation. “Philip Morris was represented by highly skilled lawyers who really did an excellent job of putting on their case and defending the company’s conduct,” said Robinson. “However, the evidence showed that the public was misled into believing that light cigarettes were ‘lighter’ and less harmful than regular cigarettes,” said Robinson. One of the core issues in the case was whether Marlboro Lights offer any health benefit compared to regular cigarettes. “We presented evidence, including testimony from leaders in the scientific and medical community, which demonstrated that Marlboro Lights are not actually any safer, healthier or less harmful and offer no health benefit compared to regular cigarettes like Marlboro Reds,” added Robinson. “The evidence showed light cigarettes like Marlboro Lights might actually be more dangerous and lead to a greater risk of lung cancer than regular cigarettes,” said Robinson.

Despite the findings in their favor on the highly contested liability issues, the ruling denied the Plaintiffs' request for a corrective advertising campaign to inform the public of the fact that lights are no safer. Prager found, among other reasons, that the Court is prohibited from ordering such a campaign by federal law as well as a prior settlement with the state of California. Judge Prager also denied restitution to the class, finding that "most smokers who learned that Marlboro Lights were no healthier than Marlboro Reds believed Marlboro Lights, without any health advantage, still provided reasonable value for the price they paid.” Prager noted that that even after the lowered tar and nicotine labels were removed Marlboro Lights sold for the same price as Marlboro Reds, and that “the market share sales of Marlboro Lights and Marlboro Reds remained substantially the same, with Marlboro Lights actually gaining market share since 2007." “Simply receiving less than the expected value of a product does not entitle a consumer to restitution if the actual value of the product still exceeds the market price paid for it.”

Robinson praised the Judge’s ruling and the findings as to Philip Morris’s misrepresentations, it knowledge of the deception, the effects of compensation and the adverse health consequences of light and low tar cigarettes, but said he plans to appeal the portion of the ruling denying the corrective advertising and restitution sought on behalf of the class. “It is a maxim of law that for every wrong there is a remedy. We don’t believe that the fact so many years have gone by, nor the fact that smokers keep buying these cigarettes because they are addicted, should preclude them from receiving restitution for the cigarettes they purchased in reliance upon these misrepresentations.” Despite the fact that the judge denied any restitution or injunctive relief, Robinson said the Court's specific findings as to Philip Morris's misrepresentations and deception, and the health consequences of light and low tar cigarettes, have vindicated an important public interest, and he believes the Court's ruling will assist smokers in pursuing personal injury claims against Philip Morris, as well as the heirs of class members who pursue wrongful death cases against the manufacturer for deaths from smoking related illnesses. "Philip Morris has been denying for years that its descriptors were conveying a message that lights were healthier, and denying that compensation is complete. In fact, Philip Morris was still contending at trial that Lights are healthier and safer, and claiming that they provide a benefit over full-flavored cigarettes. This ruling is just another step in putting an end to the light cigarette fraud.”