Cigarette Warnings: The Perils of the Cipollone Decision

Abstract

In Cipollone v Liggett Group, Inc., a splintered Court concluded that cigarette smokers who are injured through their consumption of tobacco may bring some state law tort claims against the manufacturers of the cigarettes. Other claims, however, are preempted by federal legislation requiring cigarette packages and advertising to bear warning labels, the specific wording of which is dictated by statute. After a detailed examination of the economics of hazard warning systems, Professor Viscusi argues that the most important economic issues in the Cipollone case were correctly resolved in Justice Stevens'plurality opinion, which contained little overt economic reasoning. The other two opinions in the case, which contained more economic analysis than the Stevens opinion, reached conclusions that were economically less sound with respect to the most important warnings issues. Professor Viscusi concludes that the result in Cipollone is largely good news for consumers, and that it should serve as a warning against judging the economic effects of judicial decisions by the degree to which they seem to rely on economic reasoning.