Attack on Mentholated Tobacco Products Fails
Trying a new tack in the Tobacco Wars, the group of African-Americans, who called themselves Black Smokers, failed to convince the Third Circuit that they had causes of action under the Civil Rights Act and the Fifth Amendment on the ground that tobacco companies targeted them in marketing mentholated tobacco products, which they claimed pose greater health risks than non-mentholated ones. Brown v. Philip Morris, Inc., 2001 WL 533654, decided May 17.
The Black Smokers rounded up all the usual suspects-the cigarette companies, smokeless tobacco producers, research entities and a public relations firm-as defendants in a class action in which the designated claimants were all living Black Americans who have, since 1954, purchased or consumed mentholated tobacco products. The district court dismissed the 42 U.S.C. 1981 and 1982 actions for failure to state a claim on the ground that allegations of racially targeted marketing could not succeed in the absence of any disparity between the products sold to Black Smokers and those sold to others. 1999 WL 783712 (E.D. Pa.).
The Black Smokers based their Fifth Amendment claim on Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), asserting that the defendants could be considered federal actors because of the federal regulatory scheme to which the tobacco industry is subject. The district court also dismissed this portion of the case on the ground that there was no allegation that the defendants are federal actors to support a 42 U.S.C. (sec) 1983 claim, and that the defendants could not be regarded as federal actors, a requirement under Bivens.
The Third Circuit affirmed the dismissals. As to the Civil Rights Act claims, the Black Smokers cited Roper v. Edwards, 815 F. …