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Marrone v. Phillip Morris9/15/2004
ceptive acts under the Consumer Sales Practices Act. None of these cases involved the same types of acts alleged by the plaintiffs but instead involved entirely different types of representations. To read these cases as broadly as the majority suggests and "without reference to the specific acts in those cases would allow the recovery of treble damages [or a class action] * whenever there is any arguable misstatement of fact, a result the Ohio courts and legislature surely did not intend." Lewis v. ACB Business Serv. (C.A.6, 1998), 135 F.3d 389, 405. These cases did not put Phillip Morris on notice that the specific acts alleged in the plaintiffs' complaint constituted violations of the Consumer Sales Practices Act.
The plaintiffs also asserted below, and contend again on appeal, that two administrative code sections, Ohio Adm. Code 109:4-3-02 and 109:4-3-10, set forth the requisite prior determinations that the acts allegedly committed by Phillip Morris constituted deceptive or unfair practices. Ohio Adm. Code 109:4-3-02(A)(1) provides, in pertinent part:
"It is a deceptive act or practice in connection with a consumer transaction for a supplier, in the sale or offering for sale of goods or services, to make any offer in written or printed advertising or promotional literature without stating clearly and conspicuously in close proximity to the words stating the offer any material exclusions, reservations, limitations, modifications, or conditions." (Emphasis added.)
Ohio Adm. Code 109:4-3-10(A) provides that it shall be a deceptive act or practice in connection with a consumer transaction for a supplier to:
"Make any representations, claims, or assertions of fact * which would cause a reasonable consumer to believe such statements are true, unless, at the time such representations, claims, or assertions are made, the supplier possesses or relies upon a reasonable basis in fact such as factual, objective, quantifiable, clinical or scientific data or other competent and reliable evidence which substantiates such representations, claims, or assertions of fact[.]" (Emphasis added.)
The parties dispute whether these administrative rules constituted prior determinations that the alleged conduct of Phillip Morris was in violation of the Consumer Sales Practices Act. Although other courts have held that these general administrative rules may constitute prior determinations that particular conduct constituted a violation of the Act, the plaintiffs must allege conduct by the defendant that clearly falls within these provisions. See, e.g., Delahunt, 241 F.Supp.2d at 838 (the plaintiffs alleged that defendant represented that product contained a specific amount of ephedrine but the defendant had no basis in fact to support that representation); Amato v. General Motors Corp. (1982), 11 Ohio App.3d 124 (the plaintiffs alleged that the defendant had materially modified the vehicle it sold by replacing the G.M. motor with a Chevrolet motor but did not disclose that modification to the plaintiff).
Assuming, without deciding, that Ohio Adm. Code 109:4-3-02 and 109:4-3-10 could constitute prior determinations, within the meaning of R.C. 1345.09(B), the plaintiffs in this case failed to allege any conduct by Phillip Morris that would fall within the plain language of these administrative rules. The plaintiffs did not allege any specific facts that would constitute "material exclusions, reservations, limitations, modifications, or conditions," see Ohio Adm. Code 109:4-3-02(A)(1), in the advertising of the Light cigarettes, nor did they allege any facts that would constitute "representations, claims, or assertions of fact" that were not based on data to substan
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