Underage Smoking Case Is Dismissed

Tobacco companies won a legal victory in San Diego, where a state court judge dismissed a billion-dollar class-action suit that sought compensation for Californians who took up smoking before the legal age of 18.

In throwing out the case, Superior Court Judge Ronald S. Prager said cigarette advertising enjoys free-speech protections under the 1st Amendment, even if some ads appeal to kids.

In a companion ruling, the judge also declared that the suit against Philip Morris Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Co. and Lorillard Tobacco Co. was preempted by the federal cigarette labeling act that specified the warnings that appear on cigarette packs and ads.

Trial of the case, known as Daniels vs. Philip Morris, had been expected this fall.

Although not binding on courts in other states, the decision was a setback for lawyers and health groups that have sought to hold cigarette makers legally responsible for underage smoking, which they say the industry has encouraged with ads portraying smoking as glamorous and cool.

Industry lawyers are certain to cite Prager’s reasoning in other big cases in Illinois, Massachusetts and the District of Columbia involving cigarette marketing practices.

Prager’s decision came in a pair of preliminary rulings Thursday. He set a Sept. 30 hearing for plaintiffs to seek reconsideration. John F. “Mickey� McGuire, a lawyer for the plaintiffs, said if their argument fails, they expect to appeal.

“We believe the court’s reasoning is correct and fairly applies the constitutional principles raised by such litigation,� said William S. Ohlemeyer, associate general counsel for Philip Morris.

The suit was filed in 1998; in December 2000, Prager certified a class of all Californians who were under 18 and smoked any time in a nearly six-year period from April 1994 through 1999. McGuire said an estimated 1.5 million smokers are members of the class.

The suit accused tobacco companies of violating the state Unfair Competition Law’s ban on deceptive advertising. By using positive messages to promote popular brands such as Marlboro, Camel, Newport and Kool cigarettes to youths, the companies aided and abetted the illegal sale of tobacco to kids, the complaint said.

It sought to require cigarette makers to reimburse underage smokers for money spent on cigarettes, and to pay the costs of smoking cessation programs.

At first blush, the ruling appeared at odds with a recent decision by Prager against R.J. Reynolds. In June, he fined the company $20 million for targeting youths in magazine ads in violation of the legal settlement between tobacco companies and state attorneys general in 1998.

State Atty. Gen. Bill Lockyer had sued the company, claiming it had violated its pledge to take no action “directly or indirectly, to target youth,� by running ads in magazines with large numbers of young readers. Prager said RJR could not argue that the restrictions infringed on its free speech rights, because it had agreed to them in the settlement.

On the other hand, Prager said, the Daniels claims would punish cigarette makers for advertising that is protected by the 1st Amendment and that “is neither deceptive nor related to an unlawful activity.�

The plaintiffs “have adduced no ads that say ‘Kids, get your Camels here,’ or ‘Cool kids smoke Kools,’ � he wrote.

Moreover, Prager said, “apart from asserting the defendants’ advertising is misleading and deceptive ... because it associates smoking with ‘glamorous,’ ‘cool,’ ‘strong,’ ‘macho,’ ‘tough’ and ‘sophisticated’ images ... that have ‘sex appeal’... plaintiffs point to no other allegedly misleading or deceptive information contained in the ads.�

Prager also cited a ruling last year by the U.S. Supreme Court that limits on outdoor advertising imposed by Massachusetts were unconstitutional. Quoting from the decision in that case, Lorillard vs. Reilly, Prager said the government’s interest in protecting children “does not justify an unnecessarily broad suppression of speech.�

Also pending before Prager is another tobacco class action called the Brown case, which seeks to hold the industry liable for its marketing practices. Some observers said that based on Prager’s reasoning in Daniels, the Brown case seems in jeopardy too.