Many thanks to the blog reader who forwarded copies of the supplemental letter briefs filed in In re Tobacco II Cases, no. S147345, the case in which the Supreme Court will address whether reliance is an element of a UCL claim after Proposition 64. As I previously reported, in October, the Supreme Court ordered supplemental briefing on the impact, if any, of its preemption opinion handed down in August. See In re Tobacco Cases II (Daniels), 41 Cal.4th 1257 (2007). The parties seem to agree that the preemption opinion should have no impact on the reliance case. Plaintiffs argue that the UCL claims in question are different from those the Court held were preempted, while defendants assert that "no substantive preemption ... issue is properly before the Court." Here are links to the letter briefs:
Appellants' Supplemental Letter Brief (filed 11/26/07)
Respondents' Supplemental Letter Brief (filed 11/26/07)
Appellants' Response to Respondents' Supplemental Letter Brief (filed 12/10/07)
Respondents' Response to Appellants' Supplemental Letter Brief (filed 12/10/07)
One of the letter briefs points out that a petition for a writ of certiorari is pending with the U.S. Supreme Court. Daniels v. Philip Morris USA, Inc., no. 07-740. The questions presented in the cert. petition are:
1. Whether the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1334(b), preempts a claim that respondents engaged in unfair competition under California Bus. & Prof. Code 17200, by purposefully targeting persons under 18 years old in the marketing and advertising of cigarettes, thereby inducing and profiting from transactions that are prohibited under California law?
2. Whether (a) commercial advertising that is intentionally designed to encourage minors to obtain cigarettes is entitled to protection under the First Amendment, so long as its audience does not exclusively consist of minors and, if it is, (b) whether the California Supreme Court's conclusion -- that providing a civil remedy against those who actively induce and profit from unlawful cigarette sales is unconstitutional -- can be squared with this Court's exposition of the “narrow tailoring” prong of the Central Hudson test?
Daniels v. Philip Morris USA, Inc., 2007 WL 4231074, *i (Nov. 30, 2007).
UPDATE: On March 17, 2008, the U.S. Supreme Court denied the cert. petition in Daniels.