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Florida Fourth DCA finds that tobacco company defendant’s use of the term filter in advertising its cigarettes was a deceptive statement because filters do nothing to make cigarettes healthier

On February 26, 2020, in R.J. Reynolds Tobacco Company v. Burgess, No. 4D18-3014, the Florida Fourth DCA affirmed a $3 million judgment for the plaintiff, the surviving spouse of the deceased smoker in a tobacco lawsuit. There was testimony at the trial that the smoker had once told his wife that the filter was catching “brownish-looking stuff” and that the smoker had watched the animated television show “The Flintstones” in his youth, a series which contained advertising from the defendant that their product had a “pure white” filter. The defense maintained that this was insufficient evidence from which a jury could infer that the smoker had detrimentally relied on its advertising, since there was no direct evidence that he had in fact ever even seen these commercials. The Fourth DCA concluded that the tobacco company defendant’s use of the term “filter” in advertising its cigarettes was a deceptive statement because filters do nothing to make cigarettes healthier and that individualized reliance on the statement could be inferred from the smoker’s stated belief that filtered cigarettes were safer. The Fourth DCA certified conflict with the Florida First DCA’s decision in R.J. Reynolds Tobacco Co. v. Whitmire, 260 So. 3d 536 (Fla. 1st DCA 2018), in which the First DCA held that detrimental reliance could not be proven under similar circumstances.

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