In re Tobacco Cases II

This action under the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) and the false advertising law (FAL) (§ 17500 et seq.) arises from Philip Morris USA, Inc.’s (Philip Morris) use of terms such as “Lights” and “Lowered Tar and Nicotine” in advertising Marlboro Lights, to indicate they were less unhealthful than Marlboro Reds and other full-flavored cigarettes. The trial court determined Marlboro Lights were no less dangerous than any other cigarettes, Philip Morris knew that, and its advertising was likely to deceive consumers. The court, however, denied plaintiffs’ prayer for restitution on the ground they received value from Marlboro Lights apart from the deceptive advertising, and the evidence they submitted in an effort to show the difference between what they paid for Marlboro Lights and the value they actually received (In re Vioxx Class Cases (2009) 180 Cal.App.4th 116, 131 [ 103 Cal.Rptr.3d 83 ] (Vioxx)) was incompetent and inadmissible.

On appeal, plaintiffs do not challenge the court’s finding that they received value from Marlboro Lights or its rejection of their evidence on consumer losses. Rather, they contend the court erred as a matter…