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High Court Hints It Will Side With Tobacco

The Supreme Court picked up Monday where it left off last term, signaling support for efforts to block lawsuits against tobacco companies over deceptive marketing of "light" cigarettes.

The first day of the court's new term, which is set in law as the first Monday in October, included denials of hundreds of appeals. Chief Justice John Roberts opened the new session in a crowded courtroom that included retired Justice Sandra Day O'Connor.

Last term, the justices handed down several opinions that limited state regulation of business in favor of federal power. Several justices posed skeptical questions in this term's first case, whether federal law prevents smokers from using consumer protection laws to go after tobacco companies for their marketing of "light" and "low tar" cigarettes.

The companies are facing dozens of such lawsuits across the country.

The federal cigarette labeling law bars states from regulating any aspect of cigarette advertising that involves smoking and health.

"How do you tell it's deceptive or not if you don't look at what the relationship is between smoking and health?," Chief Justice John Roberts said during oral arguments on the case.

Three Maine residents sued Altria Group Inc. and its Philip Morris USA Inc. subsidiary under the state's law against unfair marketing practices. The class-action claim represents all smokers of Marlboro Lights or Cambridge Lights cigarettes, both made by Philip Morris.

The lawsuit argues that the company knew for decades that smokers of light cigarettes compensate for the lower levels of tar and nicotine by taking longer puffs and compensating in other ways.

A federal district court threw out the lawsuit, but the 1st U.S. Circuit Court of Appeals said it could go forward.

The role of the Federal Trade Commission could be important in the outcome. The FTC is only now proposing to change rules that for years condoned the use of "light" and "low tar" in advertising the cigarettes, despite evidence that smokers were getting a product as dangerous as regular cigarettes.

The FTC "created this problem by tacitly approving the placement of these figures in the advertisements," Justice Samuel Alito said.

Douglas Hallward-Dreimeier, the Justice Department lawyer representing the FTC before the court on Monday, said the cigarette makers "should not be able to benefit from their own misleading of the commission."

Justice Stephen Breyer said tobacco companies are like most national advertisers that have to comply with differing state anti-deception ads. "Yet they've survived. There is no evidence even that there is a problem, " Breyer said.

The case is Altria Group Inc. v. Good, 07-562.

CBS News correspondent Wyatt Andrews says that in this first week of the Court's term, the Justices will also hear arguments from environmentalists who want to restrict the Navy's use of sonar due to the possible harm of whales ( Winter v. Natural Resources Defense Council).

Also scheduled this term: a question as to whether FDA approval of a drug can block consumers from suing a drug's manufacturer (Wyeth v. Levine).

As Andrews notes, the biggest decision involving the Court is the one voters make on Election Day. Five of the justices are already over the age of 70, including 88-year-old Justice John Paul Stevens. Clearly some retirements might be expected.

What kind of judge the next president might appoint is already being asked by voters and by special interest groups.

Senator John McCain says his nominees will be modeled after Chief Justice John Roberts and Justice Samuel Alito, both picked for the Court by President Bush.

"I will look for accomplished men and women, with a proven record of excellence in the law, and a proven commitment to strictly interpreting the Constitution of the United States," McCain said in a speech before the National Right to Life Convention in July.

As for Senator Barack Obama's possible choice, he wants justices to look out for the little guy.

"I'm committed to appointing judges who understand how law operates in our daily lives, judges who will uphold the values at the core of our Constitution," Obama said last month in Daytona Beach, Fla.

On Monday, the Supreme Court also:

  • refused to consider a murder case in which a jury foreman read passages of the Bible to hold-out jurors who subsequently voted to impose the death penalty.
  • rejected an appeal from an Alabama man who was sentenced to five years in prison when a judge wrongly thought the law required him to serve time.
  • rejected a plea by a convicted murderer to require that jury verdicts be unanimous in all criminal cases. Two states, Louisiana and Oregon, allow people to be convicted of some crimes despite disagreement among jurors. The justices turned down an appeal from Derrick Todd Lee, a prison inmate in Louisiana who was convicted of second-degree murder in the death of Geralyn Barr Desoto. One juror voted to acquit Lee.
  • refused to disturb a $74 million judgment against Dish Network Corp. for violating a patent held by TiVo Inc. involving digital video recorders.
  • gave abortion opponents a defeat and a victory by turning away two cases. For the third time, the high court rejected an appeal from anti-abortion activists trying to overturn a 16 million dollar judgment. They had used "wanted" posters to identify abortion clinic doctors, declaring them guilty of crimes against humanity and listing their addresses and telephone numbers. Earlier appeals were rejected in 2006 and 2003. But the Court let stand a lower court ruling that will let people in Arizona get license plates that say "choose life." A federal appeals court ruled that denying the slogan on license plates would be a violation of free speech.

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