Plurality Decision Emerging from Smoker's Allegations of Fraudulent Misrepresentation by Cigarette Companies

In Cipollone v. Liggett Group (505 US 504 1992, the smoker's allegations with respect to fraudulent misrepresentation claims were allegations that "respondents had willfully, 'through their advertising, attempted to neutralize the federally mandated warning' labels" and with respect to the fraudulent concealment claims alleged that the defendant cigarette companies "possessed, but had 'ignored and failed to act upon' medical, and scientific data indicating that 'cigarettes were hazardous to the health of consumers'." (Id. at 510.) Cipollone v. Liggett Group is a decision carved out of two extreme approaches to the preemption provision of the 1969 Cigarette Labeling Act. The Justices sitting at one extreme would rule that the Act preempts all of the petitioner's claims, while those opposed would not preempt any of them. The plurality decision that emerged was one that gerrymandered its way through the various causes of action "creating a crazy quilt of pre-emption from among the common-law claims there implicated." (Cipollone, supra, 505 US, at 542-543 Blackmun, J., concurring in part and dissenting in part.) As Justice Blackmun predicted, "I can only speculate as to the difficulty lower courts will encounter in attempting to implement today's decision." (Cipollone, supra, 505 US, at 543-544 concurring in part and dissenting in part.)