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THIRD CIRCUIT AFFIRMS DISTRICT COURT's DECISION IN CASE INVOLVING CIGARETTE ADVERTISING
The Third Circuit affirmed the district court's decision in a case involving cigarette advertising. The district court had ruled that the Federal Cigarette Labeling and Advertising Act, 15 U.S.C.S. Sections 1331-1340 preempted a smoker's claims for negligence and strict liability based on failure to warn after 1969. The smoker died of lung cancer in February 2003. In a December 1, 2003 order, the District Court granted summary judgment in favor of Brown & Williamson Tobacco Corporation, dismissing the complaint in its entirety. The Third Circuit affirmed the district court decision granting summary judgment in favor of Brown and Williamson.
The smoker, Ronald F. Smith, began smoking cigarettes around 1961,
when he was 11 or 12 years old. In deposition testimony taken before
his death, Smith testified, among other things, that he smoked Kools
because that was the brand that his parents smoked, and he had seen
ads for them. When asked specifically about the ads he had seen, he
responded "some of them was cowboys, some of them entertainment, and
that was many years ago. I don't know whether I can clearly recall
that. It was back awhile." When questioned further, he acknowledged
that he remembered ads involving sports figures.
According to the Third Circuit, the administrator of plaintiff's estate--
"presented no evidence that Smith actually saw or relied on any of
Brown & Williamson's advertisements or other representations in
deciding to smoke cigarettes in general and Kools in particular.
Because such reliance is an essential element of Jeter's claims for
false representation, breach of express warranty, negligent
misrepresentation, and intentional misrepresentation, the District
Court did not err in dismissing counts III, VI, VII, and VIII of
(Ivan Jeter, Administrator of the Estate of Ronald F. Smith, Deceased
v. Brown and Williamson Tobacco Corporation; Lorillard, Incorporated,
No. 03-4839, United States Court of Appeals for the Third Circuit,
2004 U.S. App. LEXIS 22319, October 26, 2004.)
FTC OK's FINAL CONSENT ORDER IN CASE INVOLVING SOFTWARE COMPANY's PROTECTION PROMISES
FTC has finalized a final consent order in a case where Bonzi Software, Inc. and its owners agreed to settle FTC charges that they falsely claimed that their InternetALERT software significantly reduces the risk of Internet attacks. FTC charged that InternetALERT software provides only limited protections for computers and the information stored in them. The settlement bars respondents from making false claims about the security or privacy attributes of InternetALERT and other software products.
NOTE: A consent agreement is for settlement purposes only and does
not constitute an admission of a law violation. When the Commission
issues a consent order on a final basis, it carries the force of law
with respect to future actions. Each violation of such an order may
result in a civil penalty of $11,000.
(Bonzi Software, Inc., et al., FTC File No. 042 3016, October 13,
2004; see also: Advertising Compliance Service, Tab #15, New Media,
TIMOTHY J. MURIS ELECTED TO CBBB BOARD OF DIRECTORS
Professor Timothy J. Muris, former FTC Chairman, was recently elected to the
Board of Directors of the Council of Better Business Bureaus (CBBB)
at the 2004 International Assembly of Better Business Bureaus. Muris
is George Mason University Foundation Professor of Law at the GMU
School of Law in Arlington, Va. He has been elected to serve a
three-year term as a public member of the CBBB's Board.
CBBB President and CEO Ken Hunter said,
"During Tim Muris's tenure as Chair of the FTC, he created the highly
effective National Do Not Call Registry that has allowed millions of
consumers to block unwanted telemarketing calls, spearheaded numerous
FTC actions to combat fraudulent, deceptive and unfair business
practices and supported new initiatives to help consumers learn how
to avoid Internet, identity theft and other frauds. Our Board will
value his consumer protection expertise, his enthusiasm for promoting
better business practices through effective self-regulation and his
knowledge of how government and the private sector can work together
effectively to combat fraud in the marketplace."
Muris's distinguished career in public service has spanned four
decades and includes positions as assistant director of the planning
office of FTC (1974-76), director of FTC's Bureau of Consumer
Protection (1981-1983), director of FTC's Bureau of Competition
(1983-85), Chair of FTC (2001-2004) and three years at the Office of
Management and Budget.
A respected legal scholar, Timothy Muris has written widely on
antitrust, consumer protection and regulatory issues. In addition to
serving as George Mason University Foundation Professor of Law, Muris
is Of Counsel at O'Melveny & Myers LLP in Washington, DC.
(Council of Better Business Bureaus, Inc. Release, October 18, 2004.)
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