a healthier or safer cigarette. The design of the cigarette, it is alleged, contributed to "compensating," i.e., using a light cigarette in a way that was more dangerous—holding the cigarette to cover the air holes in the filter, inducing the smoker to smoke more cigarettes, or causing the smoker to inhale more deeply. However, even the appellees' experts conceded that ninety percent of smokers did not fully compensate and not every purchaser bought "Lights" because he or she believed it was a "healthier" cigarette. These facts are fundamental to the case.
The Arkansas Deceptive Trade Practices Act is an extraordinarily broad piece of consumer-protection legislation. It provides for both criminal enforcement[1] and civil enforcement.[2] However, most of the act is directed to the Attorney General. While it does authorize a private cause of action, that right is very restricted. Arkansas Code Annotated section 4-88-113(f) provides: "Any person who suffers actual damage or injury as a result of an offense or violation as defined in this chapter has a cause of action to recover actual damages, if appropriate, and reasonable attorney's fees." It is worth emphasizing that while the Attorney General may enjoin deceptive activiry and seek restitution on behalf of the
- ↑ "Any person who knowingly and willfully commits an unlawful practice under this chapter shall be guilty of a Class A misdemeanor." Ark. Code Ann. § 4-88-103.
- ↑ "In addition to the criminal penalty imposed hereunder, the Attorney General of this state shall have authority, acting through the Consumer Counsel, to file an action in the court designated in § 4-88-112 for civil enforcement of the provisions of this chapter, including, but not limited to, the seeking of restitution and the seeking of an injunction prohibiting any person from engaging in any deceptive or unlawful practice prohibited by this chapter." Ark. Code Ann. § 4-88-104.
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