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Pearson v. Philip Morris, Inc.

Court of Appeals of Oregon, En Banc

June 19, 2013

MARILYN C. PEARSON and LAURA GRANDIN, individually and on behalf of all similarly situated persons, Plaintiffs-Appellants,
v.
PHILIP MORRIS, INC., aka Philip Morris USA, Inc., a foreign corporation, Defendant-Respondent, and PHILIP MORRIS COMPANIES, INC., aka Altria Group, Inc., a foreign corporation, Defendant.

Argued and submitted on April 09, 2010

Resubmitted en banc June 05, 2013.

Multnomah County Circuit Court 021111819, Janice R. Wilson, Judge.

Scott A. Shorr argued the cause for appellants. With him on the briefs were Stoll Stoll Berne Lokting & Schlachter P.C., and Charles S. Tauman and Charles S. Tauman PC.

William F. Gary argued the cause for respondent. With him on the brief were Sharon A. Rudnick and Harrang Long Gary Rudnick P.C.

Before Haselton, Chief Judge, and Armstrong, Wollheim, Schuman, Ortega, Sercombe, Duncan, Nakamoto, Hadlock, and Egan, Judges.

ARMSTRONG, J.

Plaintiffs, who purchased Marlboro Lights cigarettes manufactured by defendant, [1] brought this action against defendant under the Oregon Unlawful Trade Practices Act (UTPA), ORS 646.605 to 646.652. Plaintiffs alleged that defendant had violated the UTPA by misrepresenting the characteristics of Marlboro Lights and that, as a result of defendant's misrepresentations, they had suffered economic losses.

Plaintiffs filed a motion asking the trial court to certify the action as a class action, with a class consisting of the approximately 100, 000 people who had purchased Marlboro Lights in Oregon from the time in 1971 that Marlboro Lights were introduced until 2001. As an alternative to class certification of the entire action, plaintiffs asked the trial court to certify a class to litigate common issues in the case.

In order for an action to be certified as a class action, the class action must be "superior to other available methods for the fair and efficient adjudication of the controversy." ORCP 32 B. One factor courts are to consider when determining whether a class action would be superior to other available methods to adjudicate a controversy is "the extent to which questions of law or fact common to the members of the class predominate over any questions affecting only individual members." ORCP 32 B(3).

The trial court denied plaintiffs' motion for class certification and their alternative motion for certification of an issue class. The court did so because it concluded that whether plaintiffs and the other putative class members had suffered ascertainable losses and, if so, whether those losses had resulted from defendant's representations were questions that could not be resolved based on evidence common to the class and, therefore, common questions did not predominate over individual ones and a class action would not be superior to individual trials.

After the trial court denied plaintiffs' certification motions, defendant moved for summary judgment on plaintiffs' individual claims, asserting, among other things, that they were preempted by federal law. The trial court agreed that the claims were preempted by federal law, granted summary judgment for defendant, and entered a judgment dismissing plaintiffs' claims.

On appeal, we conclude that the trial court erred in granting defendant's motion for summary judgment on plaintiffs' individual claims and in denying plaintiffs' motion for class certification. We also conclude that the trial court's denial of plaintiffs' alternative motion for certification of an issue class was based on the erroneous conclusion that litigation of each of the three elements of plaintiffs' claims--an unlawful trade practice, causation, and damages--would involve individual inquiries of all the putative class members. Therefore, we reverse and remand.

I. STANDARDS OF REVIEW

Whether a claim is preempted by federal law presents a legal question, which we review for legal error. See Willis v. Winters, 350 Or 299, 309, 253 P.3d 1058 (2011) (applying standard). Whether, for purposes of class certification, a question is a common or individual one and whether common questions predominate are legal questions, which we decide anew, based on the record before the trial court and the trial court's findings, if any. Bernard v. First Nat'l Bank, 275 Or 145, 154, 550 P.2d 1203 (1976). Whether a class action would be superior to other methods of adjudication is a matter of judicial administration, which we review for abuse of discretion. Newman v. Tualatin Development Co., Inc., 287 Or 47, 51, 597 P.2d 800 (1979); Joachim v. Crater Lake Lodge, Inc., 48 Or.App. 379, 393, 617 P.2d 632, rev den, 290 Or 211 (1980).

II. HISTORICAL AND PROCEDURAL FACTS

We begin with a description of the historical facts that gave rise to this action. We base our factual description on the trial court's letter opinion and the undisputed evidence in the record.[2] We then recount the procedural facts, describing plaintiffs' claims for relief, the parties' arguments and evidence on class certification, and the trial court's decision. We describe additional evidence later in our opinion as it becomes relevant to our analysis.

A. Factual Background

Scientific studies were published in the 1950s suggesting a link between cigarette smoking and lung cancer. More specifically, the studies suggested a link between tar and nicotine from cigarette smoke and lung cancer. Nicotine is an organic compound found in the leaves of tobacco plants. It is a stimulant and has addictive properties. Cigarette smokers ingest nicotine when they draw cigarette smoke into their mouths and lungs. Along with nicotine, they ingest tar, which is the collection of substances produced when tobacco is burned, apart from water, gases, and nicotine. A smoker's tar intake is closely correlated to the smoker's nicotine intake.

The studies linking tar and nicotine to lung cancer created consumer demand for cigarettes that would deliver less tar and nicotine. In response, cigarette manufacturers introduced filtered cigarettes. The manufacturers marketed filtered cigarettes as safer than unfiltered cigarettes, and the market share of filtered cigarettes rapidly increased.

In a related effort to appeal to smokers who were concerned about the health risks of smoking, cigarette manufacturers began to advertise the tar and nicotine yields of their cigarettes. However, there was no uniform method to measure those yields; each manufacturer employed its own method, which led to consumer confusion. In response, in 1959, the Federal Trade Commission (FTC) told manufacturers that it would construe representations about tar and nicotine yields to be implied health claims that were unsubstantiated, and manufacturers stopped making the representations.

In 1964, the Surgeon General issued the first Surgeon General's report on cigarette smoking and health, which significantly increased public awareness of the health risks of smoking. Around the same time, public health organizations, acting in response to scientific studies linking tar and nicotine to health risks, advocated for the reduction of tar and nicotine in cigarette smoke. For example, in 1966, at the invitation of the Surgeon General, a group of leading scientists met to review the "state of medical knowledge on the significance of the tar and nicotine contents of cigarettes" and unanimously adopted the following resolutions:

"(1) The preponderance of scientific evidence strongly suggests that the lower the 'tar' and nicotine content of cigarette smoke, the less harmful are the effects.
"(2) We recommend to the Surgeon General that actions be encouraged which will result in the progressive reduction of the 'tar' and nicotine content of cigarette smoke."

112 Cong Rec 17, 270 (1966) (statement of Sen Warren Magnuson). The following year, the FTC changed course and allowed cigarette manufacturers to make representations about tar and nicotine yields, provided that the representations were substantiated by results from a standardized test, which came to be known as the "FTC Method." To be described as "low tar, " a cigarette had to have a tar yield of 15 milligrams or less as measured by the FTC Method.

The FTC Method of testing involves the use of a cigarette-smoking machine, and it is governed by FTC regulations that specify the depth to which the cigarette is inserted into the machine, the volume of air drawn through the cigarette with each puff, the number of puffs drawn per minute, and the amount of the cigarette that is burned.

In the late 1960s and early 1970s, cigarette manufacturers tested different ways to reduce smokers' tar and nicotine intake, including "'puffing' the tobacco to reduce the weight of tobacco in a cigarette, altering the blends of tobacco used and porosity of the paper wrapper, changing the density of the tobacco rod, using tobacco stems and reconstituted tobacco sheet, and using a wide variety of filter materials." U.S. Department of Health & Human Services, National Institutes of Health, National Cancer Center, Risks Associated with Smoking Cigarettes with Low Machine-Measured Yields of Tar and Nicotine, 69 (Oct 2001) (Monograph 13). At the same time, however, the manufacturers considered the possibility that developing cigarettes that would deliver less tar and nicotine could have adverse effects on their sales. For example, in a 1966 market analysis, defendant recognized the relationship between nicotine delivery and cigarette sales, stating:

"[A]ny health cigarette must compromise between health implications on the one hand and flavor and nicotine on the other * * * flavor and nicotine are both necessary to sell a cigarette. A cigarette that does not deliver nicotine cannot satisfy the habituated smoker and cannot lead to habituation, and would therefore almost certainly fail."

Monograph 13 at 206 (quoting M. E. Johnston, Market Potential of a Health Cigarette, Special Report No. 248, Philip Morris, 5 (June 1966)) (alterations in Monograph 13).[3] In the same report, defendant recognized that, although a large proportion of smokers were concerned about the health risks of smoking, their concerns could be assuaged by cigarette filters that appeared to be more effective, but were not actually more effective. The report stated:

"1. A large proportion of smokers are concerned about the relationship of cigarette smoking to health * * *.
"* * * * *
"9. Mere reduction in nicotine and TPM [(total particulate matter)] deliveries by conventional methods of filtration would not be a sufficient basis for launching a new cigarette.
"10. The illusion of filtration is as important as the fact of filtration.
"11. Therefore any entry should be by a radically different method of filtration, but need not be any more effective."

Id. (quoting M. E. Johnston, Market Potential of a Health Cigarette, Special Report No. 248, Philip Morris, 1-2 (June 1966)) (alterations in Monograph 13).

Thereafter, defendant and other cigarette manufacturers recognized the value of designing cigarettes with "elasticity of delivery" so that smokers could obtain more tar and nicotine than measured by the FTC Method. As one manufacturer stated, "[w]hat would seem very much more sensible, is to produce a cigarette which can be machine smoked at a certain tar band, but which, in human hands, can exceed this tar banding[.]" Monograph 13 at 70 (quoting C. C. Grieg, Structured Creativity Group, British American Tobacco Company R&D, Southampton, Marketing Scenario).

In 1971, defendant introduced Marlboro Lights. At that time, Marlboro Lights yielded 13 milligrams of tar according to the FTC Method, and regular Marlboro cigarettes yielded 18 milligrams.[4] (At the time of the trial court's decision in this case, Marlboro Lights yielded 11 milligrams of tar, and Marlboro Regulars yielded 16 milligrams.) Packages of Marlboro Lights bore the name "Lights" and the description "Lowered Tar & Nicotine." Defendant has always sold Marlboro Lights for the same price as Marlboro Regulars.

If a person smokes a cigarette differently from the manner in which the FTC machine smokes a cigarette, the person may receive amounts of tar and nicotine that differ from those measured by the machine. For example, Marlboro Lights yield less measured tar and nicotine than Marlboro Regulars due primarily to the effect of small holes in the Marlboro Lights filters. The holes allow air to be drawn in, diluting the smoke from the cigarette. A person, unlike the FTC machine, may cover up those holes, which are located where smokers commonly put their fingers and lips while holding cigarettes. Another way to receive more than the measured amount of tar and nicotine is by ingesting more smoke than the FTC machine does--for example, by taking longer or more frequent puffs on the cigarette or smoking more of the cigarette.

As mentioned, nicotine is a stimulant; it causes physical effects--such as increased energy or alertness--that many cigarette smokers regard as desirable and come to associate with the act of smoking and the taste of cigarette smoke. Nicotine is also addictive, and a person may obtain more nicotine by ingesting more cigarette smoke. Thus, when a person has a greater desire for the effects of nicotine, the person may, consciously or unconsciously, alter his or her smoking method in order to receive a greater amount of nicotine. As a result, the amount of nicotine that a person ingests can vary, even from cigarette to cigarette. The act of altering one's smoking method in order to affect the nicotine yield of an individual cigarette is called "titration."

Similarly, if a smoker who is accustomed to a higher-yield cigarette switches to a lower-yield cigarette, the smoker may alter his or her smoking method in order to obtain the amount of nicotine to which he or she is accustomed. That alteration is called "compensation." As the trial court observed, "[w]riters and speakers do not always distinguish between 'compensation, ' which by definition involves a change from one type of cigarette to another, [and] 'titration, ' which may be done by someone who has only ever smoked one brand of cigarette." A smoker who switches from a higher-yield cigarette to lower-yield cigarette may compensate by altering his or her smoking method, smoking more cigarettes, or both.

Cigarette manufacturers, including defendant, have long been aware that smokers engaged in titration and compensation behaviors. They were also aware that, because of those behaviors and the elasticity of delivery of cigarettes with dilution filters like those on Marlboro Lights, the tar and nicotine yields for human smokers could be higher than those measured by the FTC Method. For example, a 1978 Philip Morris report summarizing a meeting with Dr. W. J. Hunter states:

"I told him we do not make judgments on the relevance of tar to health.
I did, however, point out that measurement of tar yields, or indeed any smoke yields, under laboratory conditions bore no direct relationship to any individual[']s exposure to any substance."

M. E. Mulholland, Philip Morris, Report of Meeting with Dr. W. J. Hunter, 2 (Sept 1978).

Although defendant's representations that Marlboro Lights were "Lights" and had "Lowered Tar & Nicotine" were based on FTC test results, Marlboro Lights packages did not refer to the FTC test or provide the numerical results of the test. But, since 1970, defendant's advertising has included numerical results. In 1990, defendant added the following statement to its advertising: "The amount of tar and nicotine you inhale will vary depending on how you smoke the cigarette."

After plaintiffs and others across the country filed actions against defendant based on its representations about Marlboro Lights, defendant stopped using the description "Lowered Tar & Nicotine" on Marlboro Lights packages. For a short period of time, defendant also began to include periodic "onserts" in Marlboro Lights packages.[5] The onserts included statements such as:

"The tar and nicotine yield numbers are not meant to communicate the amount of tar or nicotine actually inhaled by any smoker, as individuals do not smoke like the machine used in the government test method. The amount of tar and nicotine you inhale will be higher than the stated tar and nicotine yield numbers if, for example, you block ventilation holes, inhale more deeply, take more puffs or smoke more cigarettes. Similarly, if you smoke brands with descriptions such as 'Ultra Light, ' 'Light, ' 'Medium' or 'Mild, ' you may not inhale less tar and nicotine than you would from other brands. It depends on how you smoke.
"You should not assume that cigarette brands using descriptions like 'Ultra Light, ' 'Light, ' 'Medium, ' or 'Mild, ' are less harmful than 'full flavor' cigarette brands or that smoking such cigarette brands will help you quit smoking."

The onserts were not included in all Marlboro Lights packages. According to defendant, that was not necessary because "people don't just buy one pack of cigarettes. They choose the brand and they continue to smoke that brand." A study by defendant states that 86 percent of people who were smoking Marlboro Lights saw the onserts.

B. Procedural Facts

1. Plaintiffs' Claims and Defendant's Answer

Plaintiffs brought this action against defendant under the UTPA, which provides, in part:

"A person engages in an unlawful practice when in the course of the person's business, vocation or occupation the person * * * [r]epresents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that they do not have * * *."

ORS 646.608(1)(e). A "representation" "may be any manifestation of any assertion by words or conduct, including, but not limited to, a failure to disclose a fact." ORS 646.608(2). Thus, a person who, in the course of the person's business, makes a false assertion about the characteristics of goods--either by misstating a fact or by failing to disclose a fact--commits an unlawful trade practice under ORS 646.608(1)(e).

The UTPA's prohibitions can be enforced through actions brought by the government, as well as actions brought by private plaintiffs. The government may investigate and bring actions to enjoin and penalize UTPA violations, and it is not required to prove that the UTPA violations caused any harm. See, e.g., ORS 646.618 (authorizing investigations); ORS 646.632 (authorizing pursuit of injunctions); ORS 646.642 (authorizing enforcement of injunctions and compliance agreements and civil penalties). Private plaintiffs may bring UTPA actions pursuant to ORS 646.638(1), which provides, in part:

"[A]ny person who suffers any ascertainable loss of money or property, real or personal, as a result of willful use or employment by another person of a method, act or practice declared unlawful by ORS 646.608, may bring an individual action in an appropriate court to recover actual damages or statutory damages of $200, whichever is greater. The court or the jury, as the case may be, may award punitive damages and the court may provide the equitable relief the court considers necessary or proper."

(Emphasis added.) Thus, in order for a plaintiff to prevail in an action for damages brought pursuant to ORS 646.638(1), the plaintiff must establish that he or she suffered an ascertainable loss as a result of an unlawful trade practice by the defendant. In other words, the plaintiff must prove an unlawful trade practice, causation, and damages. Feitler v. The Animation Celection, Inc., 170 Or.App. 702, 708, 13 P.3d 1044 (2000).

Plaintiffs brought this action pursuant to ORS 646.638, seeking damages and equitable relief. In their complaint, plaintiffs alleged that defendant had violated the UTPA by making false representations about the characteristics of its Marlboro Lights cigarettes.[6] Specifically, plaintiffs alleged that, by naming the cigarettes "Lights" and by describing them on their packages as having "Lowered Tar & Nicotine, " defendant had committed an unlawful trade practice, as defined by ORS 646.608(1)(e), because it had represented Marlboro Lights to have "characteristics that they did not and do not have."

Plaintiffs alleged that defendant had designed Marlboro Lights cigarettes to yield a certain amount of tar and nicotine as measured by the FTC Method and had used those results to convey to consumers that Marlboro Lights would deliver less tar and nicotine than Marlboro Regulars, even though defendant knew that, as a result of the way that consumers smoked them, Marlboro Lights could deliver the same amount of tar and nicotine as Marlboro Regulars. According to plaintiffs, defendant's design and marketing efforts were intended "to preserve market share by filling a perceived demand for a cigarette which was less dangerous than regular cigarettes as an alternative to quitting smoking."

Plaintiffs further alleged that defendant knew that consumers were "buying and smoking Marlboro Lights under the false impression that [Marlboro Lights] delivered less tar and nicotine than regular cigarettes" and that defendant "encourage[d] that false impression despite [its] superior knowledge about the way consumers smoked Marlboro Light[s]."

Plaintiffs asserted two separate and distinct claims for relief. Because the specific allegations in the claims affect the facts plaintiffs would have to prove to prevail on their claims, we set out the claims in full. In their first claim, plaintiffs alleged:

"Defendant engaged in an unlawful trade practice within the meaning of ORS 646.608(1)(e) by representing that its cigarettes had characteristics that they did not and do not have, that is, that those cigarettes would deliver to plaintiff[s] and other Marlboro Light smokers less tar and nicotine than defendant's regular 'Marlboro Red' cigarettes. In fact, as defendant well knew, plaintiff[s] and other class members would actually receive the same tar and nicotine from defendant's Marlboro Light cigarettes as from defendant's Marlboro Red cigarettes.
"As a direct result of defendant's conduct in willful violation of ORS 646.608(1), plaintiffs and class members suffered ascertainable losses because they paid for 'lowered tar and nicotine' cigarettes that in fact did not deliver lowered tar and nicotine to the smoker than did regular cigarettes."

(Emphasis added.)

In their second claim, plaintiffs alleged:

"Defendant engaged in an unlawful trade practice within the meaning of ORS 646.608(1)(e) by representing that its cigarettes had characteristics that they did not and do not have, that is, that defendant's 'light' cigarettes were inherently lower in tar and nicotine than defendant's regular cigarettes, no matter how they were smoked. In fact, as defendant well knew, whether a smoker actually received lower tar and nicotine depended on several factors, such as whether the smoker covered ventilation holes in the cigarette, the number of puffs taken on each cigarette, and the amount of each cigarette smoked, none of which defendant disclosed to any plaintiff or class member. Defendant both affirmatively misrepresented that its 'light' cigarettes would inherently deliver low tar and nicotine, and failed to disclose that, in order to receive low tar and nicotine, the smoker would have to smoke the 'light' cigarettes in a particular way. This failure to disclose was a misrepresentation within the meaning of ORS 646.608(2).
"As a direct result of defendants' conduct described in [the preceding paragraph], plaintiffs and class members suffered ascertainable losses because they paid for cigarettes they believed were inherently lower in tar and nicotine than defendants' regular cigarettes but received cigarettes that would deliver lowered tar and nicotine only if smoked in particular ways as described in [the preceding paragraph]."

(Emphasis added.) Thus, in their second claim for relief, plaintiffs alleged that defendant represented that Marlboro Lights "were inherently lower in tar and nicotine than defendant's regular cigarettes, no matter how they were smoked" and that, as a direct result of that representation, "plaintiffs and class members suffered ascertainable losses because they paid for cigarettes they believed were inherently lower in tar and nicotine than defendant's regular cigarettes but received cigarettes that would deliver lowered tar and nicotine only if smoked in particular ways[.]" (Emphasis added.)[7]

Plaintiffs' two claims allege different losses. In their first claim, plaintiffs allege that the Marlboro Lights that they purchased did not actually deliver less tar and nicotine to them, and in their second, they allege that the Marlboro Lights were not actually inherently light. The claims differ in that the first claim depends on how the Marlboro Lights were smoked, but the second does not. Because, as noted below, ___Or App at ___(slip op at 24-25), plaintiffs' arguments to the trial court and to this court are based solely on their second claim, we do not discuss the first claim further.

Plaintiffs sought an order under ORCP 32 A and ORCP 32 B, set out below, ___ Or.App. at ___ (slip op at 17, 17 n 9), "certifying a class action of all purchasers who bought Marlboro Lights in Oregon." Plaintiffs estimated that the class had more than 100, 000 members.[8] As an alternative, plaintiffs sought an order under ORCP 32 G "certifying an issue class of all purchasers of Marlboro Lights in Oregon as to common issues identified in the class certification briefing and argument."

On behalf of themselves and the putative class members, plaintiffs sought "[e]conomic damages for purchase price refund or diminished value" and noted their intent to amend the complaint to seek punitive damages. They also sought "[e]quitable relief in the form of rescission, restitution, and disgorgement of profits" and "attorney fees and costs under the UTPA."

In its answer, defendant denied plaintiffs' allegations and raised 21 affirmative defenses. Defendant asserted that plaintiffs' claims were barred by, among other things, the statute of limitation and state and federal constitutional provisions and also because defendant had complied with FTC regulations. Defendant further asserted that it was not liable to plaintiffs or the putative class members because, in its words, "all information allegedly not disclosed was in the public domain" and because "plaintiffs and the putative class members had the means of knowing, by the exercise of ordinary intelligence, the truth or real quality of the alleged statements concerning smoking and health."

2. Parties' Arguments Regarding Class Certification

ORCP 32 governs class actions. ORCP 32 A identifies five requirements for class actions. It provides:

"One or more members of a class may sue or be sued as representative parties on behalf of all only if:
"A(1) The class is so numerous that joinder of all members is impracticable;
"A(2) There are questions of law or fact common to the class;
"A(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class;
"A(4) The representative parties will fairly and adequately protect the interests of the class; and
"A (5) In an action for damages, the representative parties have complied with the prelitigation notice provisions of section H of this rule."

ORCP 32 B identifies a sixth requirement for class actions. It provides that an action can proceed as a class action if the five requirements set out in ORCP 32 A are met and if "the court finds that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." ORCP 32 B also identifies eight "matters pertinent" to whether a class action is superior to other methods for adjudicating the controversy.[9] One of those matters is "the extent to which questions of law or fact common to the members of the class predominate over any questions affecting only individual members[.]" ORCP 32 B(3). Although, under the earlier class-action statute and an earlier version of ORCP 32, a court could not certify an action such as this one as a class action unless common questions predominated over individual ones, "[i]n 1992, the Council on Court Procedures amended the rule to remove the absolute requirement." Shea v. Chicago Pneumatic Tool Co., 164 Or.App. 198, 207, 990 P.2d 912 (1999), rev den, 330 Or 252 (2000). Thus, ORCP 32 B "does not require predominance as a sine qua non of certification of any class." Id. (emphasis in original).

In the trial court, the parties disputed whether the requirements for class certification were satisfied. Each party submitted a written memorandum in support of its arguments, along with hundreds of pages of exhibits. The exhibits include scientific articles, summaries of consumer surveys, and depositions of experts.

a. Defendant's Arguments on Class Certification

Defendant opposed plaintiffs' motion for class certification, arguing, among other things, that a class action would not be "superior to other available methods for the fair and efficient adjudication of the controversy, " ORCP 32 B, because "questions * * * common to the members of the class" would not predominate over "questions affecting only individuals, " ORCP 32 B(3). Defendant asserted that the case presented several important questions that could not be resolved based on evidence common to the class because, with respect to those questions, the putative class members were not similar enough to be treated as a group. In other words, with respect to those questions, the class was not sufficiently cohesive. Defendant's primary arguments related to two of the elements of plaintiffs' UTPA claims: damages and causation.

Regarding damages, defendant argued that, in order for plaintiffs to prove that they had suffered "ascertainable losses, " as required by ORS 646.638(1), plaintiffs would have to prove that the Marlboro Lights that they and putative class members purchased did not actually deliver less tar and nicotine than Marlboro Regulars, and plaintiffs could not do that on a class-wide basis because a smoker's tar and nicotine intake depends on the smoker's individual behavior. According to defendant, plaintiffs' claims were premised on the notion that people who smoke Marlboro Lights do so in a way that enables them to obtain the same amount of nicotine that they would from smoking Marlboro Regulars or other regular cigarettes. That premise is flawed, defendant argued, because not all Marlboro Lights smokers try to increase their nicotine intake. Further, defendant argued, even ...


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