Editorial off base

The Madison County Record Nov. 18, 2004, 9:10am

To The Editor:

Your recent editorial ("Toss the Philip Morris Verdict," Nov. 8) is way off base in its characterization of the March 2003 verdict against Philip Morris for its "light" cigarettes scam as an example of Madison County's taxpayers having their halls of justice "hijacked for this kind of aggressive judicial activism."

While it is true that the case in Madison County was the first consumer protection case concerning "light" cigarettes to go to trial, there have been important rulings in other parts of the country on this type of lawsuit.

One of the most important of these occurred in August when the Massachusetts Supreme Judicial Court (Aspinall v. Philip Morris Cos., 813 N.E.2d476(Mass. 2004), certified a class action suit against Philip Morris for allegedly deceiving customers in the marketing of "light" cigarettes.

The court described the nature of the description as follows:

"The defendants in fact purposefully have designed Marlboro Lights to produce Federal Trade Commission smoking machine test (FTC test) results that enable, as a matter of federal law, the defendants to promote their cigarettes to consumers as 'lights' with 'lower tar and nicotine.'

"At the same time, the defendants took steps to ensure that Marlboro Lights would deliver to smokers amounts of tar and nicotine that are higher than those registered by the FTC test. The defendants achieved this through a variety of design modifications, including, but not limited to, the strategic placement of microscopic ventilation holes in or around cigarette filters; the modification of tobacco blend and weight, rod length and circumference; the use of reconstituted tobacco sheets or expanded tobacco; and the increase of smoke pH level through the use of chemical additives and processes such as ammoniation.

"The defendants conducted their own internal tests to ensure that the actual amounts of tar and nicotine delivered under normal use remained at higher levels than those registered by the FTC test. By marketing their cigarettes as "Marlboro Lights," and branding them with the label 'lowered tar and nicotine,' the defendants intended to create an impression in the minds of customers that the cigarettes were 'healthier' than regular cigarettes, thereby promoting the illusion of decreased tar and nicotine deliveries, in full awareness that Marlboro Lights would (as they were designed to) continue to deliver addictive levels of tar and nicotine."

This is the type of intentional corporate wrongdoing to which your editorial emphatically gives a green light. Blaming consumers while condoning deliberate acts of consumer fraud by corporations is a formula guaranteed to produce more such fraud in the future.

Edward L. Sweda, Jr.
Senior Attorney
Tobacco Products Liability Project
Northeastern University School of Law
Boston, Mass.

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