State Sues over Cigarette Claims

Source from:  By Sam Hemingway Free Press Staff Writer August 6, 2008  08/07/2008

Nine years after 46 states, including Vermont, reached a $206 billion settlement with the tobacco industry in a legal battle over the health costs of cigarette smoking, Vermont and tobacco interests were back in court Tuesday. The fight this time: whether R.J. Reynolds Co. can back up marketing claims about its Eclipse cigarette, which it says is safer than the average smoke and "may produce less risk of cancer." The case, unfolding at Chittenden Superior Court in Burlington, pits the Vermont Attorney General's Office against the tobacco giant. The Vermont litigation is being watched and supported by 36 states. No financial damages are being sought. Instead, Vermont is alleging the claims about Eclipse are not supported by scientific evidence and is asking for an injunction to put a stop to the advertising campaign. According to R.J Reynolds, the Eclipse advertising claims are true and Vermont is out of line for trying to use its consumer fraud act to take on a battle that ought to be addressed under the Federal Cigarette Labeling and Advertising Act. Tuesday, lawyers for the two sides argued a series of pretrial motions for nearly four hours before Judge Dennis Pearson. "This product represents a very big effort by the tobacco industry to produce a safer cigarette," Vermont Assistant Attorney General Julie Brill said outside the courtroom after the hearing ended. "The problem is, how can they say it's safe when the science to support the claim isn't there yet?" Brill said Vermont particularly objected to a claim in one ad about Eclipse that she argued was phrased to draw in people who were trying to quit, or had quit, smoking. "The best choice for smokers who worry about their health is to quit," the ad said. "Eclipse is the next best choice." The Eclipse cigarette, developed in the 1990s, is different than conventional cigarettes because it warms rather than burns glycerol-impregnated tobacco rolled in paper through a carbon element at the filter end of the cigarette. Lawyers for R.J. Reynolds told the judge that the company's chemical analyses of Eclipse shows it is safer and that experts hired by the Vermont Attorney General's Office aren't qualified to challenge that claim. They asked Pearson to dismiss the state's case. The tobacco company lawyers declined comment on the case, referring questions to a company spokesman at R.J. Reynolds corporate headquarters in Winston-Salem, N.C. "We are going to defend ourselves in court," the company spokesman, David Howard, said in an interview. "The claims we have made about Eclipse are based on credible and reliable scientific information." Eclipse has enjoyed only limited sales, Howard said. He said it has been provided to wholesalers in selected markets only in the United States. According to one document submitted by R.J. Reynolds, 410 cartons of Eclipse were sold in Vermont between 2000 and 2006; none was sold in the state last year. Brill said she suspects R.J. Reynolds stopped selling Eclipse in Vermont because of the lawsuit. "I think that's why they took it off the market here," she said. Vermont Attorney General William Sorrell, who has been aggressive in advancing anti-tobacco efforts, did not attend the Tuesday hearing. The American Legacy Foundation, a philanthropic anti-tobacco group last month announced it was naming a lecture series on tobacco policy and enforcement after Sorrell. Vermont between 2000 and 2007 received between $22 million and $29 million annually from the tobacco industry as part of the 1999 settlement. This year, the state expects to receive another $39.9 million through the settlement. Enditem