So New York's highest court held Dec. 16 in Adamo v. Brown & Williamson Tobacco Corp., and I think the court got it quite right (some paragraph breaks added):
Plaintiffs claim that two cigarette companies were negligent in designing their product, in that they should have used lower levels of tar and nicotine... [But] plaintiffs failed to prove an essential element of their case: that regular cigarettes and "light" cigarettes have the same "utility." The only "utility" of a cigarette is to gratify smokers' desires for a certain experience, and plaintiffs did not prove, or try to prove, that light cigarettes perform this function as well as regular cigarettes....
Here, plaintiffs presented evidence from which a jury could find that light cigarettes — cigarettes containing significantly lower levels of tar and nicotine — are "safer" than regular cigarettes, but they did not show that cigarettes from which much of the tar and nicotine has been removed remain "functional." The function of a cigarette is to give pleasure to a smoker; plaintiffs have identified no other function.
Plaintiffs made no attempt to prove that smokers find light cigarettes as satisfying as regular cigarettes — indeed, it is virtually uncontested that they do not. Both regular and light cigarettes are available on the market, and the enhanced dangers that come from smoking regular cigarettes are well known, but large numbers of consumers continue to prefer regular cigarettes.
It is not necessary in every product liability case that the plaintiff show the safer product is as acceptable to consumers as the one the defendant sold; but such a showing is necessary where, as here, satisfying the consumer is the only function the product has. A cigarette is a different kind of product from the circular saw in [an earlier case], whose function was to cut wood, or the molding machine in [another case], whose function was to melt and form plastic.
We find an apt analogy, as the Appellate Division did, in Felix v. Akzo Nobel Coatings (262 A.D.2d 447, 692 N.Y.S.2d 413 [2d Dept 1999]). The product involved in Felix was a quick drying lacquer sealer made from a highly flammable solvent base. The plaintiff argued that a safer design was "feasible," because a sealer can be made from a water base, but the plaintiff's expert "admitted that the water-based products take hours longer to dry." The court in Felix found that this "functional difference" defeated the plaintiff's case; the plaintiff failed to produce evidence "that there was an alternative, safer design" serving the same function. Similarly, here plaintiffs' case fails because plaintiffs failed to show that light cigarettes are equivalent in function, or utility, to regular ones.
Of course we are conscious, as everyone must be, of the irony in speaking of cigarettes' "utility." A strong argument can be made that, when the pleasure they give smokers is balanced against the harm they do, regular cigarettes are worse than useless.
But it is still lawful for people to buy and smoke regular cigarettes, and for cigarette companies to sell them. To hold, as plaintiffs ask, that every sale of regular cigarettes exposes the manufacturer to tort liability would amount to a judicial ban on the product. If regular cigarettes are to be banned, that should be done by legislative bodies, not by courts.
Judge Pigott dissented, agreeing that a design is negligent only if the safer alternatives would be equally functional, but reasoning that the defendants should bear the burden of proving that the safer alternatives wouldn't be "as satisfying"; he would have remanded "for a new trial to permit defendants the opportunity to present proof of the alleged commercial unacceptability of the lighter cigarette as compared to the regular cigarette."