Thanks to the blog reader who emailed me to point out that on October 10, 2007, the Supreme Court issued a supplemental briefing order in In re Tobacco II Cases, no. S147345. The order indicates that the Court is considering whether its decision in the other Tobacco case, which addressed preemption, impacts the Prop. 64 case:
The court requests that the parties file supplemental letter briefs addressing the impact of this court's recent opinion in In re Tobacco II (2007) 41 Cal.4th 1257 on the issues presented in this case, and particularly our conclusion that certain claims advanced under Unfair Competition Law regarding advertising by tobacco companies to minors are preempted by federal law. Supplemental briefing is to proceed as follows: The parties may file simultaneous letter briefs on or before November 16, 2007, 2007. Each party may then file an additional letter brief in response on or before November 29, 2007. No further extensions of time for the filing of these briefs are contemplated by the Court.
In a blog post on the Tobacco II (preemption) decision, I explained why I didn't think the Tobacco II (Prop. 64) case was affected:
According to the Court of Appeal's opinion, Tobacco II (Prop. 64) involves both CLRA and UCL claims "that the tobacco companies had made false and misleading statements denying or disputing the health hazards and addictiveness of cigarette smoking" in addition to "their targeting of minors." In re Tobacco II Cases, 142 Cal.App.4th 891, 896 (2006) (review granted). In other words, Tobacco II (Prop. 64) is predicated on allegedly misleading advertisements, not on the problem of truthful marketing to minors. According to the Supreme Court in Tobacco II (preemption), the FCLAA does not preempt state-law claims that "[seek] to regulate cigarette advertising on the basis that it contained false assertions of fact—a content-neutral basis—and [that] sought to impose a duty—the duty not to deceive—that was broader and more general than concerns about smoking and health." Slip op. at 14 (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 528-29 (1992); Lorillard, 533 U.S. at 552).
Also, the representative plaintiffs in Tobacco II (Prop. 64) (Willard R. Brown, Damien Bierly and Michelle Denise Buller-Seymore) are different from those in Tobacco II (preemption) (Devin Daniels, Bryce Clements, Daimon Fullerton, Nicole Morrow, and Maren Sandler), indicating that these are wholly separate cases.
In sum, the two cases appear to involve different claims and, indeed, different cases from among the group coordinated under J.C.C.P. no. 4042. Nothing on the face of the two opinions suggests that Tobacco II (preemption) will moot any of the issues pending on review in Tobacco II (Prop. 64).
Still, it is certainly prudent for the Supreme Court to ask the parties for supplemental briefing and there may be relevant facts that are not apparent from the publicly-available information.