Toxic Tort and Environmental Law Update: September 2012 -- New Hampshire Supreme Court Reverses “Light Cigarette” Class Certification

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[author: Michael Scanlon, Jr.]

In Karen L. Lawrence v. Philip Morris USA, Inc., No. 2011-574 (N.H. August 21, 2012), the New Hampshire Supreme Court overturned a class certification that had been granted in a case brought under the New Hampshire Consumer Protection Act on behalf of state residents who had purchased Marlboro Lights cigarettes.  The court held that a class could not be certified because common issues relating to the class members’ understanding of the health risk of “light” cigarettes compared to regular cigarettes did not predominate.

Lead plaintiff Karen Lawrence had sued Philip Morris in 2002, alleging that the tobacco company violated the NH Consumer Protection Act by falsely representing that Marlboro Lights were less of a health risk than regular cigarettes.  Lawrence alleged that, because Marlboro Lights did not deliver less tar and nicotine than regular cigarettes, as Philip Morris had promised, the “light” cigarettes were worth less than consumers believed, and she sought damages for this difference in value.  In November 2010, the trial court certified a class of consumers who purchased Marlboro Lights in New Hampshire after 1995.

Philip Morris appealed the class certification, arguing that not all class members were injured by its representations that Marlboro Lights delivered less tar and nicotine because many class members likely had some knowledge of the “compensation phenomenon” and therefore could not show they were deceived by representations that smoking light cigarettes was less harmful than smoking regular cigarettes.  The “compensation phenomenon” refers to the tendency of smokers of “light” cigarettes to inhale more deeply, hold the smoke in their lungs longer, or cover up the ventilation holes in the cigarette filter in order to receive the same amount of tar and nicotine as when smoking regular cigarettes.  The record on appeal established that as early as 1976, newspapers, magazines and network television news programs, as well as the American Cancer Society and the National Cancer Institute, published numerous reports and studies on the “compensation phenomenon.”  Based on this evidence, a unanimous three-judge panel of the New Hampshire Supreme Court concluded that the number of class members exposed to this information “was not de minimus” and that “determining the information about Lights to which individual class members were exposed and what they believed are individual issues that will predominate over common ones.”  Finding that the trial court erred in finding that common issues would predominate, the court reversed the class certification order.

The New Hampshire Supreme Court’s rejection of class certification for purchasers of “light” cigarettes marks the 12th time that class certification has been denied out of the 14 occasions when courts across the country have considered the issue.  See In re: Light Cigarettes Mktg. Sales Prac. Litig, 271 F.R.D. 402, 413 (D.Me.2010), for a listing of the prior cases in which the issue of class certification for “light” cigarette consumer actions was addressed.