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Price v. Philip Morris12/15/2005
s, including the power of the ballot box, if their voices are not heard." Slip op. at 50-51.
This statement is a brazen usurpation of the power of the legislature. Not only does it completely ignore the statutorily mandated expansive construction of the Act, but it injects the court's own preferred public policy into this statutory provision without any basis in law or fact.
Such an expansive reading of section 10b(1) flies in the face of the plain language of the Act read as a whole. First, as I have explained, the plain language of section 11a mandates an expansive construction. 815 ILCS 505/11a (West 1998). Second, the plain language of section 10b(1) exempts conduct "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). Accepting that this plain language is "the most reliable indicator of the legislature's objectives" in enacting the Consumer Fraud Act (Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 504 (2000)), it is clear that the legislature would not consider PMUSA's conduct exempt under section 10b(1). The record simply does not establish that the FTC's regulatory activity constituted "specific authorization" for PMUSA to use the disputed descriptors, i.e., "Lights," and "lowered tar and nicotine," in marketing Marlboro Lights or Cambridge Lights.
Further, section 10b(1) pf the Consumer Fraud Act lists exemptions from the otherwise expansive and inclusive reach of the Act. Because of this, I believe that the court's expansive reading of section 10b(1), an exception to the Consumer Fraud Act, not only flies in the face of the plain language of the Act mandating an expansive construction, but also ignores another rule of statutory construction: exceptions in a statute, being designed to qualify or limit what is declared in the body of an act, should be strictly construed. Mid-South Chemical Corp. v. Carpentier, 14 Ill. 2d 514, 519 (1958) (and cases cited therein); see People v. Chas. Levy Circulating Co., 17 Ill. 2d 168, 171 (1959); 82 C.J.S. Statutes §371 (1999). "Where a general rule is established by statute with exceptions, the court ordinarily will not curtail the former or add to the latter by implication." (Emphasis added.) 82 C.J.S. Statutes §371, at 496-97 (1999). I note that " hese rules are particularly applicable where, in general, the law itself is entitled to a liberal construction." 73 Am. Jur. 2d Statutes §212, at 402 (2001). Courts may give apparently plain words a restrictive meaning if such is understood by the statute as a whole, or by the persuasive gloss of legislative history. United States v. Witkovich, 353 U.S. 194, 199, 1 L.Ed. 2d 765, 769, 77 S.Ct. 779, 782 (1957); Whelan, 256 Ill. App. 3d at 558; Fleischer v. Board of Community College District No. 519, 128 Ill. App. 3d 757, 760 (1984). The court's disregard for the combination of the statutorily mandated expansive and inclusive construction of the Consumer Fraud Act, and the well-settled rule of statutory construction that exceptions in statutes are to be strictly construed, fatally undercuts the persuasiveness of its statutory construction.
The court holds that "the FTC's informal regulatory activity, including the use of consent orders, comes within the scope of section 10b(1)'s requirement that the specific authorization be made `by laws administered by' a state or federal regulatory body." Slip op. at 61. However, neither the court's lengthy discussion of FTC policy and practice nor the court's citations to our case law establish that the FTC's regulatory activity constituted "specific authorization" for PMUSA to use the disputed descript
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