“Lights” Class Action Litigation

Recently, plaintiffs’ attorneys have filed a different kind of class action against major cigarette manufacturers based upon their sale of Light cigarettes.  "Lights" class action lawsuits typically allege that Light cigarettes are a sham designed to fool the Federal Trade Commission (FTC) tar and nicotine smoke test and that smokers falsely believe that Light cigarettes deliver less tar and nicotine when in fact they do not.  Refunds of all or a portion of the cost of buying Light cigarettes are sought in addition to punitive damages.  Sometimes, advertising campaigns or disclosures about low-tar cigarettes are also demanded as relief.

What are the Allegations in the "Lights" Class Actions?

"Lights" class actions allege that the tobacco companies committed the following deceptive practices that violate consumer protection statutes:

• Class representatives and each class member were deceived into buying Light cigarettes by the allegedly false claim that Light cigarettes deliver less tar and nicotine than full-flavor cigarettes and are safer.
• Class representatives and each class member engage in “compensatory” smoking through ventilation hole blocking, deeper inhalation or other smoking behavior and get the same or more tar and nicotine from a Light cigarette as they would from a full-flavor cigarette.
• “Manipulating” the levels of nicotine in Light cigarettes.
• Smoke from Light cigarettes is more dangerous because it is “genotoxic” and has “increased mutagenicity” than full-flavor cigarettes.

How is it Determined if a "Lights" Class Action will be Certified?

Standards for class certification vary from state to state but the legal requirements for "Lights" class actions are similar to other class actions.  Generally, the law applicable to Lights class action requires that plaintiffs prove that common issues predominate over individual issues. Also, a class action must be manageable and superior to individual lawsuits.

Tobacco companies argue that Lights class actions present numerous individual inquiries for each class member regarding such things as 1) why each smoker chooses Lights cigarettes, and in many instances, continues to smoke the brand despite knowledge of the alleged consumer fraud, 2) what “Light” means to each smoker who chooses Light cigarettes and the reasons for purchasing them, 3) whether each smoker actually receives more tar and nicotine than reflected on the FTC smoke test.  Thus, tobacco companies contend that individual issues overwhelm common questions and fail to meet the predominance or superiority requirements necessary to class certification.