While tobacco companies historically managed to defeat lawsuits based on lung cancer caused by cigarettes, the tide has started to turn in more recent litigation. Consumers first became aware of the connection between smoking and cancer during the 1950s, and they sued tobacco companies based on their failure to make a safe product. In the 1980s, a shift toward focusing on the addictive properties of cigarettes proved only slightly more successful. Only in the 2000s did plaintiffs start to have more success in suing tobacco companies. This success was based on a combination of more creative legal strategies and stronger evidence to support the claims.
Early Litigation Against Tobacco Companies
The product liability cases brought against cigarette makers in the 1950s alleged causes of action based on negligence, strict liability, common-law fraud, and statutory violations of consumer protection laws. The strict liability claims used both design defect and marketing defect theories, arguing that the cigarettes were unreasonably dangerous and that the manufacturers failed to provide warnings of their risks. However, the tobacco industry defeated consumers in virtually every case. Manufacturers successfully argued that the link between smoking and cancer was not sufficiently direct to prove causation and also that consumers assumed the risk of lung cancer by choosing to smoke.
Revisiting this area in the 1980s, consumers began to rely more heavily on a failure to warn theory. They argued that tobacco companies not only knew about the link between smoking and cancer but also knew that cigarettes were addictive. Manufacturers revived the assumption of risk defense and also argued that federal laws preempted certain state laws that regulated advertising practices. While consumers won some jury verdicts in lower courts, these cases were generally reversed on appeal, and manufacturers generally prevailed again.
More Recent Successes
The tide began to turn somewhat in the 1990s when newly discovered evidence suggested that manufacturers actually had been aware of the health hazards posed by tobacco. In addition to consumers bringing claims, the vast majority of states sued tobacco companies, arguing that their products imposed a significant burden on public health systems because they caused cancer. By suing on the basis of consumer protection laws, the states circumvented the defense that consumers assumed the risk of lung cancer by choosing to smoke. These cases resulted in a settlement with four major tobacco companies, known as the Master Settlement Agreement. As a result, the companies stopped advertising cigarettes to minors and modified other advertising practices. They also agreed to pay hundreds of billions in compensation for health care costs incurred by states in treating smokers. The Master Settlement Agreement resulted in the creation of the National Public Health Foundation to combat smoking by young people and fight diseases related to smoking.
In the early 2000s, some consumers won individual lawsuits against tobacco companies, based on their intentional concealment of the health risks posed by cigarettes. They obtained massive verdicts from juries, often including punitive damages, but many of these were appealed. For example, a wrongful death verdict in Florida was reduced from $23 billion to just $17 million. Efforts to bring these cases as class actions generally were unsuccessful.
Since they use filters to dilute the smoke that consumers inhale, light cigarettes are often perceived as being safer than ordinary cigarettes. This is not actually true, though, since the word “light” refers to the taste of the cigarette rather than the volume of smoke inhaled. Some recent lawsuits have argued that advertising for light cigarettes violates state consumer protection laws. Consumers have found some success in bringing these cases as class actions. Manufacturers have argued that federal laws on marketing cigarettes preempt state laws that regulate advertising, but the U.S. Supreme Court has rejected this argument. The plaintiffs still need to prove the merits of the underlying claim that the manufacturers violated consumer protection laws.