Taking in oral arguments in Philip Morris’ appeal of its now famous Price verdict at the Illinois Supreme Court, it was easy to find oneself mesmerized by the questions of the moment.Do all ‘lights’ smokers take deeper puffs and smoke more cigarettes or only some of them?
Does the term 'lights' imply that any product is healthier?
Would 'lights' smokers have bought fewer light cigarettes if they didn’t think they were healthier?
They’re compelling questions with, we think, pretty subjective answers.
That the plaintiffs in Price— and Judge Byron-- believe their answers are objective and definitive belies the problem with these kinds of ‘consumer fraud’ lawsuits.
Despite what lawyers might argue, ‘correct’ answers to questions like “does ‘lights’ imply healthier” don’t exist. Objective facts won’t get one to a clear answer on any of them.
Consider that cigarettes— which plaintiff’s attorney Joseph Power, Jr. during oral arguments claimed “kill 440,000 people each year”— are believed by many to be unhealthy.
So are fatty foods. And the toll of heart disease dwarfs 440,000, killing half of all Americans.
If someone chooses to smoke as a means of curbing their insatiable appetite for fatty McDonald’s hamburgers, are cigarettes still unhealthy?
A Big Mac or a smoke? Pick your poison. What’s healthier?
To answer such a question requires a value judgment.
That judges-- prodded by lawyers— are opting to freely make value judgments like these is precisely the problem with our civil justice system today.
Value judgments are a function of one’s biases and beliefs. They are what justice is supposed to avoid.
Cases like Price aren't about disputed facts. They’re about conflicting arguments. If this proves the standard, anyone can bring a claim for practically anything.
The more we thought about Price, the more we wondered what comes next.
Do all ‘baked’ potato chip eaters eat more than ‘regular’ potato chip eaters?
If your wife eats three boxes of Snackwell's 'low fat' Devil's Food Cake cookies and finds she cannot fit into her dress, does she have grounds to sue Keebler?
Is 'light' beer supposed to have less alcohol or is it supposed to be less filling?
Who knows? Who cares?
We all may well before long.
Arguing for Philip Morris, former Governor James R. Thompson told the Supreme Court that upholding the Price verdict would “leave no manufacturer safe.”
We agree. By transforming the subjective into the objective, Judge Byron has created artificial standards for marketing that thrust every business operating in Illinois into the trial lawyers’ crosshairs.
Price v. Philip Morris is about more than cigarette advertising. It’s about momentum in a battle between activism and neutrality on the bench.
Legendary Supreme Court Justice Benjamin Cardozo once said that ‘the test of justice is how people feel about it.’
We don’t know about you, but until this one is done, we'll feel a bit unsettled.