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Espinosa v. Philip Morris USA

June 18, 2007


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant Philip Morris USA, Inc.'s and Defendant R.J. Reynolds Tobacco Company's (collectively referred to as "Defendants") motion to dismiss. For the reasons stated below, we grant the motion to dismiss and dismiss the instant action.


Plaintiff Jason Espinosa ("Espinosa") alleges that Defendants manufacture and sell cigarettes containing nicotine. Espinosa claims that it was discovered that tobacco companies, such as Defendants, intentionally increased the "nicotine delivery and absorption of their cigarettes into the human body targeting cigarette brands, among others, of youth smokers, in order to make new smokers more easily addicted." (Compl. Par. 22). Espinosa contends that he started purchasing cigarettes in 1996 when he was fourteen years old and has purchased four to five packs of cigarettes per week since that time. (Compl. Par. 25). Espinosa brought the instant action in Illinois state court on behalf of himself and a proposed class of cigarette users. Espinosa includes in his complaint a claim alleging a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("Fraud Act"), 815 ILCS 505/1 et seq. (Count I), a breach of express warranty claim (Count II), a breach of implied warranty of merchantability claim (Count III), a breach of contract claim (Count IV), a fraudulent concealment claim (Count V), a negligence claim (Count VI), and a declaratory judgment claim (Count VII). Defendants subsequently removed the instant action to federal court pursuant to the Class Action Fairness Act, which is codified in part at 28 U.S.C. § 1332(d). On March 26, 2007, we denied Espinosa's motion to remand. Defendants Philip Morris USA Inc. ("PM") and R.J. Reynolds Tobacco Company ("RJR") now move to dismiss all claims brought against them.


In ruling on a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). The allegations of a complaint should not be dismissed for a failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Baker v. Kingsley, 387 F.3d 649, 664 (7th Cir. 2004)(stating that although the "plaintiffs' allegations provide[d] little detail . . . [the court could not] say at [that] early stage in the litigation that plaintiffs [could] prove no set of facts in support of their claim that would entitle them to relief"). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). Under current notice pleading standard in federal courts a plaintiff need not "plead facts that, if true, establish each element of a 'cause of action. . . .'" See Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994)(stating that "[a]t this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint" and that "[m]atching facts against legal elements comes later"). The plaintiff need not allege all of the facts involved in the claim and can plead conclusions. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002); Kyle, 144 F.3d at 455. However, any conclusions pled must "provide the defendant with at least minimal notice of the claim," id., and the plaintiff cannot satisfy federal pleading requirements merely "by attaching bare legal conclusions to narrated facts which fail to outline the bases of [his] claims." Perkins, 939 F.2d at 466-67. The Seventh Circuit has explained that "[o]ne pleads a 'claim for relief' by briefly describing the events." Sanjuan, 40 F.3d at 251; Nance v. Vieregge, 147 F.3d 589, 590 (7th Cir. 1998)(stating that "[p]laintiffs need not plead facts or legal theories; it is enough to set out a claim for relief").


Defendants argue that all of the claims brought by Espinosa are preempted by the Federal Cigarette Labeling and Advertising Act ("FCLAA"), 15 U.S.C. § 1331 et seq. Article VI of the United States Constitution states that the "laws of the United States 'shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.'" Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992)(quoting in part Art. VI, cl. 2). Thus, when state law conflicts with federal law, the state law is "'without effect.'" Id. (quoting in part Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). There are three instances when federal law can pre-empt state law: "(1) when the federal statute explicitly provides for preemption; (2) when Congress intended to occupy the field completely; and (3) 'where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" JCW Invs., Inc. v. Novelty, Inc., 482 F.3d 910, 918 (7th Cir. 2007)(quoting in part Sprietsma v. Mercury Marine, 537 U.S. 51, 64-65 (2002)).

Espinosa argues that there is a presumption that the FCLAA does not preempt state law. (Ans. 3). However any such presumption is deemed to be "rebutted where . . . Congress has made its preemption intention clear in the language of the statute" at issue. Melton v. Melton, 324 F.3d 941, 945 (7th Cir. 2003)(citing Egelhoff v. Egelhoff, 532 U.S. 141, 151 (2001)). In regards to the FCLAA, Congress has provided that the FCLAA was enacted in order "to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health. . . ." 15 U.S.C. § 1331. The FCLAA also provides that "[n]o 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." 15 U.S.C. § 1334(b). Thus, Congress has expressed a clear intention to preempt state law in regards to cigarette labeling and advertising and their connection to the health of cigarette consumers, which, as is explained below, is directly tied to all of Espinosa's claims. Therefore, any presumption against a finding of preemption would be rebutted in this case.

I. Failure to Warn Related Claims (Counts I, V, and VI)

Defendants contend that the claims in Counts I, V, and VI are based upon an alleged failure by Defendants to warn cigarette consumers about the increased risk to the consumers' health due to the change in the composition of Defendants' cigarettes. The FCLAA preempts state law that relies on a "requirement or prohibition . . . with respect to . . . advertising or promotion," and thus the FCLAA preempts state claims that are based upon a "failure-to-warn theory" that "require[s] a showing that" cigarette "advertising or promotions should have included additional, or more clearly stated, warnings. . . ." Cipollone, 505 U.S. at 524.

A. Fraud Act Claims (Count I)

Espinosa alleges in Count I that Defendants violated the Fraud Act. Count I is based upon the allegation that "Defendants each deceptively, unlawfully and fraudulently refrained from informing Plaintiff and the Class that the Defendants each continually and purposefully increased the nicotine delivery and absorption of the cigarettes they sold and marketed to Plaintiff and the Class." (Compl. Par. 28). Espinosa thus references an alleged failure of Defendants to warn cigarette consumers. Espinosa also contends that alleged changes in composition of the cigarettes had adverse health consequences because it made it easier to become "addicted" to cigarettes. (Compl. Par. 30). Thus, the claims fall within the scope of the purpose of the FCLAA that was to address "cigarette labeling and advertising with respect to any relationship between smoking and health. . . ." 15 U.S.C. § 1331. Espinosa also makes clear that the alleged failure to warn by Defendants involved Defendants' "advertising, packaging, and media statements. . . ." (Compl. Par. 17). That places Espinosa's claims squarely within the FCLAA's preemption clause that preempts state law "with respect to the advertising or promotion of any cigarettes. . . ." 15 U.S.C. § 1334(b). Finally, Espinosa alleges that he and the proposed class members were harmed because they were not properly warned of the changes in the composition of the cigarettes. (Compl. Par. 31). The Fraud Act claim is thus clearly based upon warnings that Espinosa contends should have been provided to cigarette consumers regarding the alleged increase in the nicotine delivery and absorption of the cigarettes and its effects upon the consumers' health. Espinosa argues in regards to Count I that "[o]nly if a claim imposes a specific duty 'based on smoking and health' can it possibly be preempted." (Ans. 5). However , Count I is clearly based upon such a duty. Espinosa specifically alleges that Defendants failed to extend specific information relating to the composition of Defendants' cigarettes and thus alleges that Defendants failed to warn cigarette consumers about adverse risk to their health. Espinosa tries to characterize the duty upon which Count I is based as a "general obligation not to deceive," and argues that "[t]his is not a failure to warn case." (Ans. 5, 8). The basis of Espinosa's claim in Count I is that Defendants are liable because their cigarette advertisements and promotions did not include certain information and if such information was included in the advertisements it would have constituted a warning to consumers about a risk to their health. To the extent that Espinosa seeks to align his claims with the exception mentioned in Cippolone that referenced fraud by an intentional misrepresentation, such an exception is not applicable in the instant action. 505 U.S. at 527-29. The allegations in Espinosa's complaint only allege an omission of information and there are no facts that indicate that Defendants intentionally and affirmatively misrepresented the composition of their cigarettes.

Espinosa also argues that he is not seeking to "impose greater warning requirements in [D]efendants' advertising or promotions." (Ans. 8). While Espinosa is not explicitly requesting that the statutory requirements for warnings be heightened, Espinosa is seeking to hold Defendants liable for not providing certain warnings and thus Espinosa is indirectly attempting to impose new warning requirements on Defendants. Defendants correctly point out that "[a]s a practical matter, the only way for Defendants to avoid liability under Espinosa's theories of Illinois law would be to provide additional statements relating to smoking and health beyond the Congressionally-mandated Surgeon General warnings." (Reply 2-3). Espinosa's claims in Count I are directly tied to concerns about cigarette customers' health due to the alleged ...

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