Judge Intends to Dismiss Youth Marketing Case; Says Claims Cannot Withstand First Amendment Scrutiny; Federal Preemption Also Prevents Claims, Judge Says

Business Wire, Sept 13, 2002

Business Editors/Legal Writers

SAN DIEGO--(BUSINESS WIRE)--Sept. 13, 2002

A California judge intends to dismiss a state-wide class-action case alleging that cigarette advertising misled minors and caused them to smoke. The judge ruled that the case sought to restrict factually accurate advertising and constitutionally protected speech.

The telephonic ruling by Superior Court Judge Ronald S. Prager was issued late Thursday. Under court rules, the plaintiffs have an opportunity to request a hearing before the decision becomes final on Sept. 30.

"Plaintiffs have presented no evidence of any tobacco advertisements that expressly or directly encourage the purchase of tobacco by minors or the sale of tobacco to minors by retailers." Judge Prager said in his ruling. He added that, "as a matter of law, (the companies') challenged speech does not relate to an unlawful activity and is not deceptive."

In a separate order, Judge Prager ruled that the plaintiffs' claims also must be dismissed because they are preempted by the Federal Cigarette Labeling and Advertising Act.

According to Judge Prager's opinion, federal law reserves unto Congress and the Federal Trade Commission the authority to regulate cigarette advertising.

"We believe the court's reasoning is correct and fairly applies the constitutional principles raised by such litigation," said William S. Ohlemeyer, Philip Morris Cos. vice president and associate general counsel. In his decision, Judge Prager rejected the plaintiffs' central allegation, that the companies' advertising between 1994 and 1999 was misleading.

Judge Prager also noted that the plaintiffs could not argue that the companies had violated California law simply because some minors may see or read advertising directed to adults and related to a lawful product.

Quoting a recent U.S. Supreme Court decision, Judge Prager said the plaintiffs argument that the companies should pay damages for advertising its products to adults simply because some underage readers might see the ads would be "an unnecessarily broad suppression of speech."

Similar lawsuits are pending in other jurisdictions, including Illinois, Massachusetts and Washington, D.C.