Race, Health Care and the Law 
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The "Black Smokers'" Lawsuit

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 Jacob T. Penrod

excerpted from: Jacob T. Penrod, Brown V. Philip Morris, Inc., 250 F.3d 789 (3rd Cir. 2001). , 8 Washington and Lee Race and Ethnic Ancestry Law Journal 131 (Spring, 2002) (101 Footnotes)


Plaintiffs (the "Black Smokers") [1] brought this class action suit on behalf of all African-Americans who had purchased or consumed mentholated tobacco products since 1954. The Black Smokers sued various tobacco companies, claiming that these companies discriminated against the African- American public by targeting them with advertisements for mentholated tobacco products. The Black Smokers claim that the tobacco companies knowingly harmed the African-American community by deceiving them into believing that menthol cigarettes are healthier than non-mentholated cigarettes. Furthermore, the plaintiffs contended, and the defendants did not dispute, that mentholated tobacco products actually do pose a greater health risk than non- mentholated products. The Black Smokers maintained that the target advertising caused harmful disparities in the smoking population. According to the Black Smokers, African-Americans, who make up 10.3% of the U.S. population, constitute 31% of all mentholated tobacco users. The Black Smokers also stated that the tobacco companies did not advertise these same messages to white consumers. Based on the above facts, the plaintiffs sued the defendant tobacco companies in the United States District Court for the Eastern District of Pennsylvania on October 19, 1998.

The Black Smokers based their claims on several theories of law. First, they claimed that defendants violated the civil rights statutes codified at 42 U.S.C. 1981,1982, and 1985(3) by infringing on African- Americans' right to contract for and to purchase and hold, personal property on the same grounds as "white" Americans. Second, they argued that the tobacco companies targeted African-Americans with defective products and that defendants' advertisements constituted express warranties containing false and misleading statements. Third, Black Smokers claimed that the defendants are federal actors, who violated a constitutional right under Bivens v. Six Unknown Federal Narcotics Agents, and that the defendants' target advertising violated the Fifth Amendment. Fourth and finally, the Black Smokers claimed the tobacco companies are state actors, who violated the full and equal benefit clause, 42 U.S.C. 1983, and the Fourteenth Amendment.

The District Court granted defendants' motion to dismiss under Fed. R. Civ. P. 12(b)(6). Plaintiff appealed to the United States Court of Appeals for the Third Circuit.

[1]. "Black Smokers" is a term used by plaintiffs to describe themselves. The court adopts it in its opinion.

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Professor Vernellia R. Randall
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The University of Dayton School of Law
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