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Price v. Philip Morris12/15/2005
this court. First, PMUSA asserts that sections 2 and 10b of the Consumer Fraud Act (815 ILCS 505/2, 10b (West 2000)) bar plaintiffs' claim. Second, PMUSA argues that even if state law permits such a claim, plaintiffs' Consumer Fraud Act action is expressly preempted by the Federal Cigarette Labeling and Advertising Act (Labeling Act) (15 U.S.C. ยง1331 et seq. (2000)). Third, PMUSA contends that this claim is barred by the doctrine of conflict preemption. Fourth, PMUSA argues that labeling of its light cigarettes comes within the protection of the first amendment and article I, section 4, of the Illinois Constitution. In addition, PMUSA cites the three-year statute of limitations applicable to actions brought under the Consumer Fraud Act (815 ILCS 505/10a(e) (West 1998)), which, it argues, precludes class certification and limits the damages period. Because we find section 10b(1) of the Consumer Fraud Act bars plaintiffs' claim, we need not address the other issues raised in this appeal.
The Consumer Fraud Act was enacted in 1961 as a regulatory and remedial statute for the purpose of protecting consumers and others against fraud, unfair methods of competition, and unfair or deceptive acts or practices in the conduct of any form of trade or commerce. Robinson v. Toyota Motor Credit Corp., 201 Ill. 2d 403, 416-17 (2002). It is to be liberally construed to effectuate this purpose. Cripe v. Leiter, 184 Ill. 2d 185, 191 (1998). Section 10b(1) of the Consumer Fraud Act provides that nothing in the Act shall apply to " ctions or transactions specifically authorized by laws administered by any regulatory body or officer acting under statutory authority of this State or the United States." 815 ILCS 505/10b(1) (West 1998).
Illinois enacted the Deceptive Practices Act in 1965 primarily for the purpose of defining and prohibiting deceptive trade practices (see 1965 Ill. Laws 2647, eff. January 1, 1966 (title of Act)) and unfair competition (see Chabraja v. Avis Rent A Car System, Inc., 192 Ill. App. 3d 1074, 1079 (1989) (noting that the prefatory notes to the statute specifically refer to deceptive conduct that unreasonably interferes with another in the promotion and conduct of his business). Section 4(1) of the Deceptive Practices Act provides: "This Act does not apply to: (1) conduct in compliance with the orders or rules of or a statute administered by a Federal, state or local governmental agency." 815 ILCS 510/4 (West 1998).
Before this court can determine whether section 10b(1) of the Consumer Fraud Act bars plaintiffs' claim, we must be clear about the precise nature of the conduct alleged by the plaintiffs to have constituted fraud. Having carefully reviewed the pleadings, we reject PMUSA's attempt to cast plaintiffs' claim as one of failure to make additional disclosures beyond the warning required by federal law. Plaintiffs' claim is not based on failure to warn or on neutralization of the required warnings. It is not a claim of fraud on the FTC, nor is it a claim for damage to plaintiffs' health.
Plaintiffs have pleaded a pure case of consumer fraud. They allege that PMUSA used the descriptive terms "light" and "lowered tar and nicotine" on its packaging and in its advertising with the knowledge that these terms are deceptive, and with the intent that consumers rely upon the false message in making purchasing decisions. Plaintiffs have further alleged that the class members relied, to their detriment, on these false claims. See Oliveira, 201 Ill. 2d at 149 (listing elements of a cause of action under the Consumer Fraud Act). In addition, plaintiffs assert that the smoke that was delivered by the PMUSA products was even more toxic and more mutagenic than smoke from full- f
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