Washington, D.C., partner Barry Cutler was quoted in the December 15 Advertising Age article, "Court Ruling Could Lead to More Tobacco Lawsuits."
According to the article, the U.S. Supreme Court recently gave the go-ahead to a state consumer-protection lawsuit, which questions the marketing of "light" cigarettes, that some lawyers believe may lead to a rash of state lawsuits over other types of products.
The decision, according to the article, seemed to impose limits on a traditional argument used by national marketers to halt similar state suits: National regulations on marketing include some pre-emption of local regulation, thereby making state regulations redundant.
Cutler, who served as Director of the Federal Trade Commission's Bureau of Consumer Protection from 1990 through 1993, said the decision showed the court's reluctance to supersede state enforcement actions. "Apart from tobacco, the potential impact of the case is that it underscores a reluctance to take away the rights of state attorneys general or plaintiffs in state court."
"There is a common public misconception that 'pre-emption' means that there is no room for anything but the federal standard," said Cutler. "That can be true in some cases, but more often state laws will be allowed to the extent that they do not contradict the federal rule. In other words, if you can comply with both rules, even though the state standard is higher, it is not 'pre-empted.'"