Ohio court dismisses class action – rules cigarette manufacturer not warned its advertising was deceptive

The Ohio Supreme court dismissed an Ohio residents claim that Philip Morris advertising about low-tar cigarette claim was not misleading advertising, Plaintiffs attorney says the fight will go on

In late 1999, residents of Medina County went after a cigarette maker, accusing Phillip Morris of falsely marketing low-tar cigarettes as safer alternatives than its regular brands.

But the case — certified as a class action by Medina County Common Pleas Judge James Kimbler in September 2003 — has been tangled up in the legal system and never has made it before a jury.

An Ohio Supreme Court decision Wednesday further complicates its path to a courtroom by reversing its class-action status, which allowed smokers in six Northeast Ohio counties to join if they felt similarly misled.

Justice Evelyn Lunberg Stratton wrote that the cases on which the plaintiffs built their argument for a class action weren’t similar enough to forewarn Phillip Morris that its advertising practices could be deemed deceptive under Ohio’s Consumer Sales Practices Act.

Attorney Charles Rocky Saxby of Columbus, one of the attorneys who represented the smokers, said the decision was disappointing.

Whether it will be appealed has not been decided, he said.

The standard now in Ohio is a much more difficult one; it essentially gives suppliers or companies who engage in the practice one free deception before they can get in trouble, Saxby said Wednesday.

Saxby said the decision slaps down the intent of the Consumer Sales Practices Act, which was designed by the Ohio General Assembly to give small, affected consumers a way to take on companies who deliberately deceive or misrepresent the quality of their products.

It’s disappointing, but we will continue to fight,he said.

Chief Justice Thomas J. Moyer and Justices Maureen O’Connor and Terrence O’Donnell joined in the majority decision. Judge Thomas J. Grady of the 2nd District Court of Appeals, sitting for Justice Alice Robie Resnick, concurred on some aspects and dissented on others, as did Justice Judith Ann Lanzinger.

Justice Paul E. Pfeifer wrote a critical dissent, calling the court’s interpretation of the law unconscionably narrow and saying it will limit consumers’ ability to file class-action claims.

At the heart of the case are the claims by Catherine Marrone of Seville and other smokers that they were misled into buying light versions of Marlboro and Virginia Slims.

They didn’t claim health problems as a result, but instead sought a refund of money they and other smokers in surrounding counties had spent on light cigarettes in the previous two years.

The lawsuit argued that Phillip Morris knew the tar levels in the light version of its cigarettes were the same as its regular versions.

The pool of affected smokers was to include those from Medina, Ashland, Cuyahoga, Lorain, Summit and Wayne counties, according to Kimbler’s initial class-action decision.

In September 2004, the 9th District Court of Appeals had upheld the class-action designation, a decision that landed the case on the docket of the Ohio Supreme Court.

Today’s decision is a sensible one that reflects the intent of the state’s consumer protection law,” William S. Ohlemeyer, Philip Morris USA vice president and associate general counsel, said via e-mail. It is consistent with decisions by other courts recognizing that Philip Morris USA cannot be sued in a consumer fraud act class action.

By Julie Wallace
Beacon Journal staff writer

Comments are closed.