In re Tobacco Cases II

This action under the Unfair Competition Law (UCL) and the False Advertising Law (FAL) arose from Philip Morris USA, Inc.'s use of terms such as "Lights" and "Lowered Tar and Nicotine" in advertising Marlboro Lights, to indicate they were less harmful to one's health than Marlboro Reds and other full-flavored cigarettes. The trial court determined Marlboro Lights were as dangerous than any other cigarettes, Philip Morris knew that, and its advertising was likely to deceive consumers. The court, however, denied plaintiffs' prayer for restitution on the ground they received value from Marlboro Lights apart from the deceptive advertising, and the evidence they submitted in an effort to show the difference between what they paid for Marlboro Lights and the value they actually received was incompetent and inadmissible. On appeal, plaintiffs contended the court erred as a matter of law by determining the only measure of restitution in a UCL products action was the measure set forth in "In re Vioxx Class of Cases," 180 Cal.App.4th 116 (2009)). Plaintiffs asserted value was immaterial, and they were not required to show any loss attributable to the deceptive advertising, because as an alternative measure the court had discretion to order Philip Morris to make a full refund of consumer expenditures, or its profits thereon, exclusively for the purpose of deterrence. Plaintiffs also contended the court abused its discretion by denying injunctive relief on the ground of mootness. A federal court opinion affirmed in relevant part in "United States v. Philip Morris USA, Inc." (566 F.3d 1095 (2009)), and federal legislation have already enjoined tobacco companies' use of the objectionable descriptors, plaintiffs asserted the matter was not moot because Philip Morris continued to market the cigarettes, called Marlboro Gold, in light-colored packs, which ostensibly signified they were less dangerous than Marlboro Reds or other cigarettes sold in dark-colored packs. Additionally, plaintiffs argued the court erred by denying them declaratory relief, awarding Philip Morris costs as the prevailing party under Code of Civil Procedure section 1032, and denying them sanctions under Code of Civil Procedure section 2033.420 for Philip Morris's failure to make admissions. After review, the Court of Appeal concluded that all of plaintiffs' points were meritless and affirmed the judgment. View "In re Tobacco Cases II" on Justia Law