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Price v. Philip Morris12/15/2005
"a numerical multiple, fraction or ratio of the tar or nicotine ratings of any other brand," but specifically allowed the "express or implied representation" that a cigarette is " `low,' `lower,' or `lowest' in tar and/or nicotine." American Tobacco, 119 F.T.C. at 10, 11. Thus, we hold that plaintiffs' claim is barred by section 10b(1) of the Consumer Fraud Act.
At oral argument, plaintiffs' counsel noted that the circuit court made two separate findings of fraud: (1) a finding that PMUSA's use of the terms "light" and "lowered tar and nicotine" was fraudulent and deceptive based on the known phenomenon of compensation , and (2) a finding that the members of the plaintiff class were defrauded because PMUSA failed to disclose that its "light" cigarettes were more mutagenic than full-flavor cigarettes. Counsel argued that, even if this court were to reverse on the merits of the first claim, the second portion of the circuit court's judgment must still stand.
We have not reached the merits of either aspect of plaintiffs' fraud claim, having found the entire claim barred by section 10b(1) of the Consumer Fraud Act. However, our discussion thus far has focused on the PMUSA's use of the disputed terms. The question we must next address is whether, even if the use of the terms was specifically authorized by the FTC, a claim may be brought under the Consumer Fraud Act based on PMUSA's describing more mutagenic cigarettes as "light" and as delivering "lower tar and nicotine." For two reasons, we find that the claim of fraud based on increased mutagenicity cannot stand.
First, plaintiffs' claim regarding mutagenicity is inextricably linked to their claim that the terms "lights" and "lowered tar and nicotine" are fraudulent and deceptive. Even though the circuit court found that members of the plaintiff class understood these terms as making an implied claim of safety and relied on this understanding, their Consumer Fraud Act claim is barred by section 10b(1). It is clear from the record that the FTC has defined both terms as meaning 15 milligrams or less of tar. Because PMUSA was specifically authorized to use these descriptive terms on its labels and in its advertising of products meeting this definition, any claim based on the use of these terms is barred by section 10b(1) of the Consumer Fraud Act, no matter what meaning the plaintiffs might have attributed to them.
Second, plaintiffs' mutagenicity claim is based on PMUSA's failure to make additional disclosures beyond those required by federal statute and the voluntary agreement with the FTC-the tar and nicotine content in milligrams and the mandatory warning label. Thus, the claim is barred by this court's decisions in Lanier, 114 Ill. 2d at 18 (finding compliance with disclosure requirements of federal statute to be a defense to liability under the Consumer Fraud Act), Jackson, 197 Ill. 2d at 47 (same), and Jarvis, 201 Ill. 2d at 88 (recognizing state policy against extending consumer disclosure requirements beyond those mandated by federal law).
IV. OTHER ISSUES RAISED IN THIS APPEAL
Our resolution of plaintiffs' claim on the threshold issue of statutory exemption moots most of the other issues raised in this appeal. One issue, however, is not resolved by our determination that plaintiffs' claim is barred by section 10b(1) of the Consumer Fraud Act. PMUSA argues that the circuit court erred by ruling that its delivery of some 39,000 documents to Congress in compliance with a congressional subpoena constituted waiver of both attorney-client privilege and work- product protection for those documents. Although only one of the disputed documents was actually admitted into evidence in the present cas
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