Marlboro Lights Smokers’ Class Bid Sunk in Oregon

(CN) - An unfair trade practices lawsuit against Philip Morris brought by two women who smoked Marlboro Lights will not go forward as a class action, the Oregon Supreme Court held.

Marilyn C. Pearson and Laura Grandin sued Philip Morris in Multnomah County, Oregon as a proposed class of Marlboro Lights smokers.

Pearson and Grandin claimed Philip Morris violated the state Unlawful Trade Practices Act by representing Marlboro Lights as having less tar and nicotine than other Marlboros.

The class allegedly consisted of 100,00 people who bought at least one pack of Marlboro Lights in Oregon between 1971 and 2001.

A trial court denied the motion to certify the class action, and a majority of the state Court of Appeals reversed it. The appellate court found that there were essential elements of the plaintiffs' claim that could be proved through evidence common among the proposed class.

This week, the Oregon Supreme Court affirmed the trial court's decision that denied class certification.

The supreme court noted that the plaintiffs have not shown expert evidence that Marlboro Lights were worth less because of their alleged lower tar and nicotine.

"Left with only ordinary market inferences to draw and the lack of any price difference between Marlboro Lights and regulars, the trial court found no basis to infer that purchasers of Marlboro Lights, as a group, suffered an

ascertainable loss of money based on the fact of their purchase,

without more," Justice Virginia Linder wrote for the panel.

The judge noted that the main question posed by the lawsuit was "Why do people buy light cigarettes?" and that the main factual dispute was about what individual class members believed about smoking light cigarettes. "The fact that plaintiffs' claim of reliance depended on a purchaser's subjective interpretation of the representation, coupled with the long class period over which information that Marlboro Lights were not inherently light was increasingly available to the public, led [trial] Judge Duncan to conclude that there was a 'legitimate question' whether a considerable number of the class members knew, or were on notice, that Marlboro Lights were not inherently light and did not rely on that representation," Justice Linder wrote.

Because the plaintiffs could not show that the class members' common issues were predominant over individual ones, Linder found the trial court had correctly denied the class certification.

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