CONCORD, N.H. - (Mealey's) Saying sufficient public information existed to call into question whether plaintiffs were uniformly unaware that light cigarettes were as dangerous as regular ones, the New Hampshire Supreme Court on Aug. 21 vacated certification of a class action lawsuit alleging that Philip Morris USA Inc.'s Marlboro Lights violated the state's Consumer Protection Act (Karen L. Lawrence v. Philip Morris USA, Inc., No. 2011-574, N.H. Sup.).
"[T]he record establishes that between 1976 and 1995, substantial information was available to consumers concerning the fact that light cigarettes are as harmful to smokers as regular cigarettes," the panel said. "Indeed, hundreds of publications and television news reports between 1976 and 1995 informed consumers that light cigarettes were no less harmful than regular cigarettes.
"The trial court itself acknowledged that, during this period, some consumers may have known their smoking behavior could result in receiving greater amounts of tar and nicotine than smoking machines recorded."
Clark University history professor Janette Thomas Greenwood presented studies released during the proposed class period that showed that smokers tended to "compensate" for the design of light cigarettes by such practices as covering the ventilation holes in the filter, which were designed to introduce additional air into the inhaled smoke.
"Her declaration identifies numerous studies published during that time frame, which concluded that smokers of light cigarettes receive the same amount of tar and nicotine as smokers of regular cigarettes because of the compensation phenomenon," the panel said. "Her declaration also describes the national and regional news reporting about these studies."
The case was before the court on interlocutory appeal of the 2010 decision of Merrimack County Superior Court Judge Larry Smukler to certify a class. The claims of lead defendant Karen L. Lawrence have not gone to trial.
Chief Justice Linda Stewart Dalianis wrote the opinion, with Associate Justices Gary E. Hicks and Carol Ann Conboy concurring.
The plaintiffs are represented by Charles G. Douglas and Jason R.L. Major of Douglas, Leonard & Garvey in Concord and Stephen M. Tillery of Korein Tillery in St. Louis and Maximilian C. Gibbons of the firm's Chicago office. Philip Morris is represented by Wilbur A. Glahn III of McLane, Graf, Raulerson & Middleton in Manchester, N.H., and Philip Curtis of Arnold & Porter in New York.
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