Lawsuit attacks 'light' cigarettes as fraud

By Maureen O'Hagan
Seattle Times staff reporter

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Two lawsuits filed yesterday in King County Superior Court claim that tobacco companies defrauded Washington smokers into thinking that "light" or "low tar" cigarettes are less harmful than regular brands when they are just as dangerous — perhaps more so.

The twist is that unlike typical tobacco cases, these plaintiffs are making no claims of illness in their class-action lawsuits. Instead, healthy smokers are attacking the tobacco companies for false marketing claims, which some experts say is a promising new strategy for plaintiffs. So far, similar cases have been filed in about 20 states, with varying degrees of success.

"I can't imagine another class action that has greater scope," said Charles S. Tauman, one of several lawyers representing the plaintiffs.

Though there are only two plaintiffs in the Seattle cases now, he estimates that about a half-million Washingtonians who smoke light cigarettes made by Philip Morris USA and R.J. Reynolds Tobacco Company could join the class. Both companies are named in the lawsuits.

The plaintiffs ask to be refunded what they've spent on light cigarettes, which could be about $30,000 for someone who smoked 20 years.

The companies say they're confident they will prevail.

"We have compelling defenses to these types of claims," said John Sorrells, a spokesman for Philip Morris, adding, however, "our lawyers don't like to say much until they've had a chance to see and study a complaint."

A local lawyer representing R.J. Reynolds agrees.

"This recent filing is ill-conceived and will ultimately be dismissed as have many other prior unsuccessful efforts to utilize class-action procedures in smoking and health litigation," Brad Keller said.
 
The plaintiffs say scores of internal documents show how tobacco companies engineered and marketed their cigarettes to appeal to smokers concerned about their health while maintaining the high levels of nicotine that fed their addiction — and defrauding them in the process. A cigarette that was truly less potent might lead smokers to wean themselves altogether, they feared, according to the lawsuits.

"This must be considered a serious "threat," says an internal RJR document cited in the lawsuit.

At the center of the controversy is a machine used by the Federal Trade Commission (FTC) to measure what smokers inhale. The machine puffs the cigarette, traps what would go into a smoker's lungs and measures the results. The problem is that the machine smokes differently than the average person. And the tobacco companies not only knew this, but they designed their products to trick the machine into giving low readings, the lawsuits claim.

John F. Banzhaf, III a law professor at George Washington University Law School, likens it to a butcher who cheats his customers by using a scale he knows will tack on an extra few ounces.

For example, microscopic holes in a light cigarette allow air to be drawn in that theoretically dilutes the amount of toxins per puff. The companies knew that the average smoker covers up those holes, negating any health advantages, according to the plaintiffs.

Yet the companies positioned the holes so that they would not be covered up by the machine. Smokers also tend to inhale more deeply on light cigarettes, thereby drawing the harmful substances more deeply into their lungs.

As a result, the words "light" or "low tar" on the package are not only meaningless, according to the plaintiffs, but they're fraudulent.

"They basically played a game with the FTC," Banzhaf said.

Julie Huntsberry, one of two named plaintiffs, said she was fooled, too. Now 24, she said she began smoking at 14 but switched to light cigarettes when she was 16.

"I thought it would be better for me," she said yesterday, noting that she quit two years ago. "I might have quit sooner had I known."

Nearly three-quarters of smokers use light cigarettes, many of them for similar reasons, her lawyers estimate.

"I actually think these cases are much more difficult for the industry to deal with than the traditional smoking and health cases because there's a huge amount of documents," said Stanton Glantz, professor of medicine and director of the Center for Tobacco Control Research and Education.

Not only that, said Banzhaf, the plaintiffs have to prove that consumers were deceived, which is an easier task than showing, for example, that cigarettes, and not some other factor, caused a particular case of lung cancer.

"What we are constantly casting around for is a legal theory to do what should be obvious to most people," he said. "If a company deliberately does wrongful things and as a result they kill millions of people, by god they ought to pay for it."

In Illinois a year ago, the first class-action trial focusing specifically on "light" cigarettes resulted in a $10.1 billion verdict against Philip Morris.

On the other hand, judges in Massachusetts and Florida threw out similar class-action lawsuits.

All three cases are on appeal.

Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

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