Supreme Court Won't Review Decision That Deceptive Trade Practices Claim Against Cigarette Manufacturer Was Removable To Federal Court

On May 22, 2006, the Supreme Court declined to review an Eighth Circuit decision that allowed a cigarette manufacturer to remove a deceptive practices suit to federal court based on a finding that the cigarette manufacturer was "acting under" the control of the FTC when it advertised that certain cigarettes were "lights" and "lowered tar and nicotine." See Watson v. Philip Morris. The plaintiffs brought suit in state court under the Arkansas Deceptive Trade Practices Act claiming that Philip Morris's Marlboro Lights cigarettes deliver more tar and nicotine than its use of the labels "lights" and "lowered tar and nicotine" suggests. Philip Morris's label is based on the Cambridge Filter Method of testing as required by the FTC. Philip Morris removed the case to federal court claiming that it was acting under the control of the FTC. Section 1442(a)(1) of Title 28 permits removal by "any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." The district court determined that Philip Morris was entitled to federal officer removal and the Eighth Circuit affirmed. In the petition for certiorari, the plaintiff posed the question: whether a private actor doing no more than complying with a federal regulation is a "person acting under a federal officer" for purposes of 28 U.C.S. 1442(a)(1) and is entitled to remove to federal court a civil suit brought in state court under state law"? The Court denied the petition for certiorari.