Portland Press Herald / Maine Sunday Telegram
COLUMN No refunds for cost of smoking
Printer-friendly version Reader Comments
story tools
sponsored by
BILL NEMITZ December 18, 2008

Listen up, Joe Nicfit. All that hard-earned dough you've spent on "light" cigarettes over the years may soon find its way back to your pocket.

And here's the best part: You don't have to claim – or even admit to yourself, for that matter – that smoking has in any way harmed you. In fact, if you manage to climb aboard a looming class-action lawsuit in U.S. District Court in Bangor, you can even use your windfall to buy more butts!

Don't thank me, Joe. Thank the lawyers and the U.S. Supreme Court.

"The issue here has absolutely nothing to do with health," said Samuel W. Lanham, Jr., a Bangor attorney who is representing three Maine smokers who back in 2005 launched this so-crazy-it-just-might-work piece of litigation. Start to finish, Lanham added, "this is a consumer fraud case."

Here's how it works.

In their initial complaint against Philip Morris USA and its parent company, Altria Inc., Stephanie Good and Allain Thibodeau of Bangor and Lori Spellman of Levant claim that use of the word "light" on the packaging of their cigarettes amounts to fraud under the Maine Unfair Trade Practices Act.

How so?

Good question.

Nobody in the complex case disputes that cigarettes like Philip Morris' Marlboro Lights indeed give off less tar and nicotine – at least when smoked by carefully calibrated machines under testing authorized by the Federal Trade Commission.

But studies have proven that when you, Joe Nicfit, smoke "light" cigarettes, you tend to drag harder, inhale deeper and light up more often under the mistaken assumption that the cigarettes are safer. In other words, by putting more "light" smoke into your lungs, Joe, you negate any benefits that the reduced tar and nicotine might offer.

I know, it's getting hazy in here. But stay with me, Joe, the money's just beyond the smokescreen.

Phillip Morris, in trying to get the case tossed by the Supreme Court, argued that the Maine statute is trumped by the federal Cigarette Labeling and Advertising Act. The federal law prohibits states from putting any limits on cigarette advertising if those restrictions are "based on smoking and health."

But here's the kicker: The Maine plaintiffs make no claim whatsoever that the marketing of "light" cigarettes has actually hurt their health. Rather, they essentially say that Philip Morris ripped them off and they want a refund.

That argument won out this week before the high court, which ruled that as long as the Maine smokers' claim is economic and not medical, their case can proceed.

(The minority opinion, written by Justice Clarence Thomas, argued persuasively that plaintiffs' impaired health is not only an issue here, but is the only way to demonstrate that "light" cigarettes constitute fraud. Thus, Thomas maintained, the Maine case has everything to do with the health effects of smoking and should consequently be dismissed.)

Which brings us back to you, Joe. Or, more specifically, your wallet.

The next major step in this slow-burning drama is for the plaintiffs' lawyers to ask that the court designate the case a class action. If they succeed, any Mainer who has ever stood out there on a street corner sucking on a Marlboro Light like it was a soda straw could be in line for some form of compensation from Philip Morris.

In other words, Joe Nicfit, you could end up getting some, if not all, of your cigarette money back.

Now before you start seeing dollar signs, take a deep breath. (OK, then take a shallow breath.)

Truth be told, it's not going to be easy documenting who in Maine smoked "light" cigarettes, how many packs they smoked and how much they paid for each pack. If you're like most smokers, Joe, you prefer not to keep count – and you're probably too focused on ripping open that fresh deck of ML's to even think about saving the receipt.

Then there's the issue of how much compensation...


Reader comments
Click here to view or add comments on this story

Were you interviewed for this story? If so, please fill out our accuracy form