The opinion of the court was delivered by: SAROKIN
The parties here move for clarification of the effect of the Third Circuit's opinion in this case, Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir. 1986), regarding the preemptive effect of the Cigarette Labeling and Advertising Act on plaintiff's tort suit against the defendant cigarette manufacturers. The Third Circuit's opinion has thus left this court with the unenviable task of discerning what that court meant by its mandate and what, if anything, remains of plaintiff's claims as a result of it.
The Third Circuit's opinion states as follows:
We hold that the Act preempts those state law damage actions relating to smoking and health that challenge either the adequacy of the warning on cigarette packages or the propriety of a party's actions with respect to the advertising and promotion of cigarettes. We further hold that where the success of a state law damage claim necessarily depends on the assertion that a party bore the duty to provide a warning to consumers in addition to the warning Congress has required on cigarette packages, such claims are preempted as conflicting with the Act.
Critics of the opinion argue, with considerable justification, that carried to its logical extreme this conclusion permits the tobacco industry to take out a full page advertisement declaring the Surgeon General to be wrong, urging that his warnings should be ignored, and claiming that smoking is safe without risking civil liability to anyone mislead thereby.
Indeed, the plaintiff argued to the Court of Appeals that the advertising and promotion campaigns of cigarette manufacturers negated the mandated warnings and intentionally misled and deceived the consuming public. The decision of the Court of Appeals clearly rejects the plaintiff's right to pursue that theory and makes no distinction between the intentional, negligent, or good faith publication of such assertions. The opinion broadly holds that suits which challenge "the propriety of a party's actions with respect to the advertising and promotion of cigarettes" are preempted.
Despite this court's vehement disagreement with that conclusion, it is duty bound to follow the dictates of a superior court. Therefore, according to the Court of Appeals, no matter how false or misleading cigarette advertising may be or have been, and even if intentionally so, no state law cause of action may arise on behalf of anyone who may have relied thereon to their detriment or death. Indeed, the tobacco industry evidently can continue to deny or refute the risks of cigarette smoking with impunity and immunity so long as the little rectangle with the necessary language appears in its advertising and on its cigarette packages. Faced with that mandate, the court has little difficulty in determining what is and what is not left of plaintiff's claims.
On August 1, 1983 plaintiff Antonio Cipollone and his wife Rose (now deceased) filed a suit claiming that defendants were liable in tort to plaintiffs because they had manufactured cigarettes which allegedly caused Mrs. Cipollone to develop lung cancer. Plaintiffs' complaint set forth claims based on strict liability (Counts 2, 3 and 9), negligence (Counts 4 and 5), breach of warranty (Count 7) and intentional tort (Counts 6 and 8). More specifically, these counts claimed that the defendants' cigarettes were unsafe and defective (Counts 2 and 9) and that defendants are subject to liability for their failure to warn of the hazards of cigarette smoking on the basis of strict liability (Count 3) and negligence (Count 4). In addition, the Cipollones claimed that defendants negligently (Count 5) or intentionally (Count 6) advertised their products in a manner that neutralized the warnings actually provided, and in any event that the warnings were made meaningless by the addiction and dependency caused by defendants' cigarettes (Count 9). Finally, the complaint stated that the defendants ignored, failed to act upon, and conspired to deprive the public of medical and scientific knowledge reflecting the dangers associated with cigarettes (Count 8).
Defendants each answered, asserting as an affirmative defense, inter alia, that plaintiffs' claims are preempted by the Federal Cigarette Labeling Act, as amended by the Public Health Cigarette Smoking Act, 15 U.S.C. § 1331 et seq. (the Act). Plaintiff then moved to strike such defense, and defendant Loew's Theatres cross-moved for judgment on the pleadings. In an opinion dated September 20, 1984, Cipollone v. Liggett Group, Inc., 593 F. Supp. 1146 (D.N.J. 1984), this court held that the Act did not expressly or impliedly preempt any of plaintiffs' causes of action, and therefore granted plaintiffs' motion to strike and denied defendant's motion for judgment on the pleadings. Defendants appealed, initially challenging both the striking of their defense and the denial of defendant Loew's motion for judgment on the pleadings, but they then withdrew the latter challenge. By opinion dated April 7, 1986, Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3d Cir. 1986), the Court of Appeals reversed this court's grant of the motion to strike and remanded this case for further proceedings. Meanwhile, plaintiff Rose Cipollone died and her husband, acting individually and as executor of her estate, became the sole plaintiff in this case. Upon remand, the parties have agreed that plaintiff's claims based on failure to warn and negligent advertising and promotion arising after 1965 as set forth in Counts 3, 4 and 5 are preempted under the Court of Appeals' holding. They also agree that those claims contained in Counts 3, 4 and 5 based on failure to warn or negligent advertising and promotion before 1966 (agreed upon as the effective date of the Act) remain intact. They continue, however, to dispute whether the Act preempts those of plaintiff's theories of strict liability which are premised on improper design, or those premised on fraud, misrepresentation, express warranty or negligent research and testing. For this reason, plaintiff requests clarification as to what portions of his complaint survive in the wake of the Court of Appeals' opinion. Defendants also cross-move for judgment on the pleadings.
The Act's preemption provision, 15 U.S.C. § 1334(b), states that "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." In interpreting this provision, the Court of Appeals first addressed the issue of express preemption by stating that "We . . . express our agreement with the district court's conclusion that section 1334 does not provide for express preemption of the Cipollones' state common law claims." Id., 789 F.2d at 185. On the other hand, the Court of Appeals concluded that the Act does implicitly preempt those state law damage actions relating to "the propriety of a party's actions with respect to the advertising and promotion of cigarettes", or any state claim that "necessarily depends on the assertion that a party bore the duty to provide a warning to consumers in addition to the warning Congress has required on cigarette packages." Id., 789 F.2d at 187. Accompanying this mandate, however, was the cautionary note that
We observe that the Cipollones' tort action concerns rights and remedies traditionally defined solely by state law. We therefore must adopt a restrained view in evaluating whether Congress intended to supercede entirely private rights of action such as those at issue here. . . . In light of this constraint, we cannot say that the scheme created by the Act is "so pervasive" or the federal interest involved "so dominant" as to eradicate all of the Cipollones' claims.
Thus this court is instructed to find preemption as to each of those state law damage claims that relates to "advertising and promotion" or "necessarily depends" on a showing that there was a greater duty to warn than that which Congress had already imposed, but the court is further informed that this test is not to be read too broadly, and does not encompass all of Mr. Cipollone's claims. With these teaching in mind, the court turns to the specific theories in plaintiff's complaint.
A. The Strict Liability Claims
Counts 2, 3, and 9 allege causes of action based on strict liability theories. Count 2, paragraphs 9 and 10, states as follows:
9. The cigarettes manufactured and sold by defendants . . . presented a risk to the plaintiff's decedent far greater than any social utility.
10. The cigarettes manufactured and sold by the defendants . . . and purchased and used by Rose D. Cipollone, were in an unsafe and defective condition.
Count 3, paragraph 2, provides that:
The cigarettes manufactured and sold by defendants . . . were defective as a result of . . . defendants' failure to provide adequate warnings of the ...