Altria Group, Inc. v. Good - Oral Argument - October 06, 2008

Altria Group, Inc. v. Good

Media for Altria Group, Inc. v. Good

Audio Transcription for Opinion Announcement - December 15, 2008 in Altria Group, Inc. v. Good

Audio Transcription for Oral Argument - October 06, 2008 in Altria Group, Inc. v. Good

John G. Roberts, Jr.:

We'll hear argument first this term in Altria Group v. Stephanie Good.

Mr. Olson.

Theodore B. Olson:

Mr. Chief Justice, and may it please the Court: Respondents' state law claims track nearly verbatim the Cigarette Labeling Act's pre-emption provision.

For example, the complaint challenges promotions of light cigarettes as less harmful and safer to smokers than regular cigarettes.

But the statute, Congress, explicitly preempted any requirement respecting the promotion of cigarettes based upon smoking and health.

In short, the Respondents are seeking in state court precisely what Congress pre-empted.

There is no space--

John G. Roberts, Jr.:

Mr. Olson, what if the state law claim did not require any inquiry into the relationship between smoking and health?

Something along the lines of saying our studies show that light cigarettes are healthier for you, and in fact their studies show the opposite.

So all you, all the plaintiff would have to show is that there was a deception, a disconnect between the studies and the ad.

It wouldn't matter whether light cigarettes were healthier or not healthier.

Is that the type of action that could be brought?

Theodore B. Olson:

--Well, I think the facts could differ from case to case, Mr. Chief Justice.

But the inquiry is going to be generally, I think, simple: Is there a requirement?

Is it based upon smoking and health, and does it appear in an advertising or promotion of a cigarette.

Now, I suppose there might be conceivably circumstances where it's impossible to tell that the requirement is not connected in some way with smoking and health, but it's certainly clear here.

The complaint specifically talks in terms of promoting cigarettes, purporting to be less harmful or safer, despite serious health problems associated with smoking.

These appear at the beginning in paragraph 2 of the amended complaint which is at pages, beginning Joint Appendix pages 26 through 28.

I invite the Court's attention to paragraph 2 of the amended complaint and paragraphs 15 and 18 of the amended complaint.

In fact, the words 12 times in the amended complaint.

Ruth Bader Ginsburg:

Is it a question of just how you phrase it, Mr. Olson?

Is there any scope -- does your argument leave any scope for attorney general, state attorney general imposition of state law remedies against a deceptive practice involving advertising cigarettes.

To give you concrete examples, suppose a state attorney general said in every -- suppose the practice were in every carton of cigarettes the cigarette manufacturer includes an insert that says: If you want to ingest less nicotine, buy our cigarettes; if you want to ingest less nicotine, buy our cigarettes.

And the state attorney general goes after that statement in the carton as false and deceptive advertising.

Would there be any scope for that?

Theodore B. Olson:

I think that there is.

In answer to the general question that you ask, Justice Gins burg, there is plenty of room for an attorney general to pursue deceptive advertising.

Another example -- and I'll come to the one you mentioned -- is that someone might misrepresent the number of cigarettes in a package or other things having to do with cigarettes.

That would not necessarily be related to smoking and health.

So there is not a pre-emption if there is not a relationship between the prohibition and smoking and health.