Cite as 2015 Ark. 73
less addictive when, according to plaintiffs, Philip Morris knew those representations were false.
Here, plaintiffs alleged that Philip Morris violated these two statutory provisions of the ADTPA:
(a)(1) Knowingly making a false representation as to the characteristics, ingredients, uses, benefits, alterations, source, sponsorship, approval, or certification of goods or services or as to whether goods are original or new or of a particular standard, quality, grade, style, or model;. . . .
(10) Engaging in any other unconscionable, false, or deceptive act or practice in business, commerce, or trade;
Ark. Code Ann. § 4-88-107 (Repl. 2011). These two provisions focus on the defendant's acts. So the first question that must be answered is whether Philip Morris made a false representation or engaged in a deceptive practice. The answer extends further than a particular smoker's tar and nicotine intake. While plaintiffs' complaint alleged that Philip Morris falsely represented Lights cigarettes as having lower tar and nicotine, plaintiffs also alleged that Philip Morris employed deceptive techniques to reduce machine-measured levels of tar in Lights cigarettes. Further, plaintiffs alleged that the Lights descriptor itself was false and misleading. Because these allegations go beyond whether each consumer who bought Lights actually received less tar or nicotine, individual issues regarding smoking behavior are not dispositive.[1]
- ↑ See, e.g., Aspinall v. Philip Morris Cos., 813 N.E.2d 476, 489 (Mass. 2004) ("Neither an individual's smoking habits nor his or her subjective motivation in purchasing Marlboro Lights bears on the issue whether the advertising was deceptive."); Craft v. Philip Morris Cos., 190 S.W.3d 368, 382 (Mo. Ct. App. 2005) (“Plaintiff's allegations go to the condition and labeling of the product at the time it was sold; they do not make defendant's liability dependent on each consumer's individual smoking behavior.").
8
