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Price v. Philip Morris12/15/2005
rketplace demonstrated that, in reality, consumers would not have paid less to satisfy their tobacco habits had the lights' true properties been known. They would not have stopped smoking, for they were addicted, and they could not have bought cigarettes that cost 77.7% less or 92.3% less, for no such cigarettes existed. At most, they would have reverted back to "full-flavored" versions of the cigarettes.
Significantly, and as I have already observed, the price charged by PMUSA for such cigarettes, and the price consumers were willing to pay despite the absence of claimed health benefits, was precisely the same as the price charged for "lights." In marked contrast to the situation with many products aimed at health consciousness, there was no cost differential for consumers between the "healthy" and "regular" versions of the product. Accordingly, while PMUSA's misrepresentations may have deceived consumers into altering their purchasing decisions, the net change in consumers' economic position as a result of those misrepresentations was zero. In other words, plaintiffs may not have received the benefit of their bargain, but the bargain (i.e., obtaining what were thought to be healthier cigarettes than they would otherwise have purchased) cost them nothing extra. In terms of pecuniary harm, plaintiffs were unaffected. Their financial status remained the same.
This conclusion is not altered by the fact that PMUSA's light cigarettes were more toxic than the full-flavored versions. The additional toxicity unquestionably had adverse effects on plaintiffs' health. It bears repeating, however, that health effects are not part of plaintiffs' damages claim. They are not seeking compensation for personal injury , only pecuniary loss based on their switch to lights inreliance on PMUSA's misrepresentations. For purposes of calculatingpecuniary loss, the increased toxicity of lights would be relevant onlyif one could show (1) that an alternative cigarette with equally high toxicity levels was available on the market at lower cost than the pricecharged for lights and (2) that consumers would have switched to thatlower cost alternative had the truth about lights been known.
The notion that cigarette manufacturers could successfully marketa cigarette known to be more toxic than regulars is inconsistent withthe realties of consumer demand for more healthful products that led to the development of light cigarettes. It is therefore unsurprising thatthere is no evidence that a cheaper but more toxic brand of cigarette is actually available for purchase. Given the nature of the class bringingthis suit, that is, smokers interested in a product less harmful to their health, it is also highly unlikely that any of them would change to a differentbrand that was more harmful than regulars, even at a reduced price. The testimony of the class representatives certainly does not suggest they would, and plaintiffs' Internet survey does not speak to the issue.
The Internet respondents were not queried about it. The Internet survey looked to hypothetical conduct assuming that a truly healthier version existed. It did not measure or purport to measure how consumers would actually behave if, as is really the case, there is no truly healthier version.
Having sustained no pecuniary harm, plaintiffs lack the actual economic damages necessary to sustain their cause of action under the Consumer Fraud Act. When the same situation confronted the representative for the putative Illinois class in Avery, we concluded that the deficiency was fatal to his consumer fraud claim (Avery, 216 Ill. 2d at 199) and reversed the judgment for plaintiffs outright. We should not hesitate to reach the same conclusion
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