A recent New Hampshire case provides yet another example of the difficulty of establishing predominance for class certification purposes in advertising/consumer deception cases. This time, the industry is one that is amply familiar with class action jurisprudence: the tobacco industry.
In Lawrence v. Philip Morris USA, the plaintiff alleged Philip Morris falsely represented that its “Marlboro Lights” cigarettes would deliver less tar and nicotine that other cigarettes. In reality, the plaintiff alleged, the “Lights” merely had filters with ventilation holes that would dilute the tar and nicotine per puff, allowing the cigarettes to “pass” smoking machine tests without delivering any less tar or nicotine to human smokers. The plaintiff did not claim personal injury as a result of the alleged deception; rather, she sought compensation for the difference in value between the cigarettes she purchased and the lower-tar cigarettes she was promised.
The trial court certified a class of “Lights” purchasers in New Hampshire. On appeal to the New Hampshire Supreme Court, however, the class ran into a roadblock that has become increasingly insurmountable in advertising class actions: the individual nature of each consumer’s purchasing decision, and the knowledge that went into that decision.
Here, Philip Morris submitted expert testimony documenting decades of various studies, news reports, and other publicly disseminated material about low-tar cigarettes. Much of this information reported that such cigarettes did not actually contain less tar or nicotine, and that many smokers of low-tar cigarettes “compensate” for the ventilation holes by smoking more cigarettes, inhaling more deeply, or covering the holes with their fingertips. As a result of “the volume of information available to consumers,” the court concluded that “the number of class members exposed to this information was not de minimis.” Accordingly, “determining the information about Lights to which individual class members were exposed and what they believed are individual issues that will predominate over common ones.”
Given the recent consistency with which courts have been rejecting class certification motions in advertising cases, one wonders whether the studies and reports proferred by Philip Morris were even necessary. Arguably, even if little public information existed about the perils of “light” cigarettes, wouldn’t each purchaser’s state of mind remain an individual question? Presumably some consumers placed a greater value than others on the “light” nature of the cigarettes; would a court be required to determine on an individual basis the extent to which the desire to consume less tar and nicotine drove each consumer’s purchases? Moroever, wouldn’t a court be obligated to consider, individually, the extent to which each purchaser actually did “compensate” for the ventilation holes, in order to determine whether that consumer received the benefits promised?
The reality is that few courts are willing to find predominance in advertising cases. Where there is significant information in the product about the public domain, thereby diluting the potential impact of the advertising on the decision to purchase the product, courts point to this information to show the varying amounts of information available to purchasers in support of a denial of class certification. When there is no such information, courts can nonetheless rely on the complicated decision-making process that goes into each consumer’s purchase of a product, and on the differing values to each consumer of the product “promised” and the product received. Given this trend, successful advertising class actions are likely to be few and far between.