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U.S. 'lights' decision conflicts with 2005 Illinois ruling on the cigarettes

This article first appeared in the St. Louis Beacon, Dec. 15, 2008 - In a 5-4 decision, the U.S. Supreme Court ruled that smokers could sue in state courts claiming a violation of consumer fraud laws. The decision could lead to judgments that would pose a threat to the health of the cigarette industry.

There are at least two interesting aspects of the high court's decision:

1. The reasoning of the U.S. Supreme Court contradicts a basis of the Illinois Supreme Court decision throwing out a $10.1 billion judgment against Altria.  The U.S. Supreme Court found that the FTC had not "authorized" the cigarette companies to use the term "lights."  The Illinois Supreme Court had concluded the opposite.

2. The U.S. Supreme Court majority was composed of the more liberal justices, while the four dissenters were more conservative. That breakdown would seem to confound stereotypes about liberals wanting a more powerful federal government and conservatives more powerful state governments.

On the first point, the closely divided Illinois Supreme Court ruled on Dec. 15, 2005, that smokers could not sue under the state consumer fraud law because that law bars suits against practices authorized by federal law. The state court concluded that "the FTC could, and did, specifically authorize all United States tobacco companies to utilize the words 'low,' 'lower,' 'reduced or like qualifying terms, such as 'light.'"

The U.S. Supreme Court did not hear an appeal from the Illinois decision. But it took up another case from Maine. That is the one that the court decided on Monday.

Justice John Paul Stevens, author of Monday's decision, came to the opposite conclusion from the Illinois justices - although there was no mention of the Illinois ruling. Stevens concluded that the FTC did not authorize the tobacco companies' use of the "lights" term and noted that even the Justice Department itself had disavowed this claim.

The $10 billion verdict in Illinois had been one of the cases that the Chamber of Commerce pointed to as an example of lawsuit abuse. It was part of the campaign in which pro-business groups succeeded in electing Judge Lloyd Karmeier to the state supreme court in 2004. Karmeier joined the 4-2 majority in the tobacco case.

The liberal/conservative divide on the pre-emption issue is more esoteric. The law on when a state law is pre-empted by federal law and when it isn't is extremely complicated. The issue comes up in all sorts of contexts, with preemption sometimes favoring a liberal result and sometimes a conservative result.

In general, the more conservative justices have generally favored pre-emption. This would seem at odds with their states' rights approach to other issues but it often protects business interests from bothersome litigation in state courts. Similarly, the more liberal justices often oppose preemption, which would seem at odds with their more nationalistic approach to other issues.