[216 NJSuper Page 349] This matter comes before the court on a motion for summary judgment brought by defendant Brown & Williamson Tobacco Corporation (Brown & Williamson). The issue raised by Brown & Williamson is whether the federal Cigarette Labeling and Advertising Act, 15 U.S.C.A. §§ 1331-1340 (1982) (the act), preempts the state common law and statutory claims brought by plaintiff Claire E. Dewey in this court. The first count of
the complaint alleges, in pertinent part, the failure of defendants, R.J. Reynolds Tobacco Co., R.J. Reynolds Industries, Inc., American Brands, Inc., and Brown & Williamson, to adequately warn of the hazardous nature of the cigarettes that they manufactured and sold. The second count of the complaint challenges the propriety of defendants' advertising and promotion of cigarettes. Brown & Williamson moves for summary judgment based upon the recent Third Circuit decision in Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3 Cir.1986), which held that the act preempts state law damage actions relating to smoking and health that challenge either the adequacy of the federally-mandated warning on cigarette packages or the propriety of a party's efforts respecting its promotion and advertising of cigarettes.
This motion presents questions of first impression in this State: first, whether this court is bound by the Third Circuit's interpretation of the federal Cigarette Labeling and Advertising Act and, second, whether plaintiff's claims under state law are preempted by the act.
A. Factual and Procedural Background.
In her complaint and in papers submitted by her attorneys, Claire Dewey alleges that her husband, Wilfred, developed lung cancer as a result of smoking defendants' cigarette products from 1942 until 1980. Mr. Dewey died of lung cancer in November 1980. On August 20, 1982, Mrs. Dewey commenced this action as executrix of her husband's estate. An amended complaint was filed on October 19, 1982, and on June 28, 1983, Mrs. Dewey filed a second amended complaint that is the subject of this motion.
In 1966, Congress enacted the Federal Cigarette Labeling and Advertising Act which required imposition of the following warning label on cigarette packages: "Caution: Cigarette Smoking May Be Hazardous to Your Health." 15 U.S.C.A.
§ 1333 (1970). It is undisputed that Mr. Dewey continued to smoke after this warning label appeared. From 1977 until 1980, Mr. Dewey smoked Viceroy-brand cigarettes, a Brown & Williamson product. At her deposition, Mrs. Dewey indicated that her husband was aware of the alleged dangers of cigarette smoking and the federally-mandated warning on cigarette packages.
The second amended complaint contains four counts. The first count alleges that defendants are strictly liable for the manufacture of cigarette products "which were not reasonably fit, safe and suitable for human use at the time the products were placed in the stream of commerce." The first count further alleges that defendants "failed to warn the general public and/or Plaintiff's decedent of [the] deleterious, toxic, and hazardous nature of their products for numerous years. In recent years, minimal warnings conveyed by the Defendants . . . were completely inadequate." The second count alleges fraud and misrepresentation through defendants' commercial advertising and marketing of their products. The third and fourth counts are derivative in nature. The third count alleges a cause of action pursuant to New Jersey's Wrongful Death Statute, N.J.S.A. 2A:31-1 et seq. The fourth count contains Mrs. Dewey's claim for loss of consortium resulting from her husband's death.
In answer to the complaint, Brown & Williamson pleaded that all of plaintiff's claims are preempted by the Federal Cigarette Labeling and Advertising Act and that the complaint failed to state a cause of action. Brown & Williamson moves to dismiss the complaint based upon the "preemption defense," i.e., that Wilfred Dewey began smoking this defendant's ...