Full opinion text
MEMORANDUM OPINION AND ORDER VAZQUEZ, District Judge. On May 5, 2006, Defendant Philip Morris USA, Inc. (“Philip Morris”) filed a Motion for Summary Judgment Based on Federal Preemption under FCLAA’s Express Preemption Provision, 15 U.S.C. § 1334(b), (Doc. No. 53) (hereinafter “Express Preemption Motion”) and a Motion for Summary Judgment based on N.M. Stat. Ann. § 57-12-7 and Implied Federal Preemption (Doc. No. 53) (hereinafter “Implied Preemption Motion”). The Court, having reviewed the briefs and arguments of the parties, the relevant law, and otherwise being fully advised, finds that Defendant’s Express Preemption Motion should be granted as to Plaintiffs’ claim based on a theory of fraudulent concealment, failure to warn, and warning neutralization and denied as to Plaintiffs’ claim based on a theory of fraudulent misrepresentation and that Defendant’s Implied Preemption Motion should be denied. I. INTRODUCTION Plaintiffs are smokers who purchased Marlboro Lights and Cambridge Lights brands of cigarettes in New Mexico. Plaintiffs have brought a class action suit against Defendants Philip Morris and Alt-ria Group, Inc., who they allege manufactured “lowered tar” or “Lights” filtered cigarettes under the brand names “Cambridge Lights” and “Marlboro Lights.” Plaintiffs allege that Defendants violated the New Mexico Unfair Trade Practices Act (“UPA”), NMSA § 57-12-1 et seq., by deceptively marketing the cigarettes as “Light” and as being “Lowered in Tar and Nicotine.” Plaintiffs also allege that Defendants deceptively designed the “Light” cigarettes to register lower levels of tar and nicotine when tested by the Federal Trade Commission (“FTC”) testing method than would actually be delivered to consumers of the product. Plaintiffs assert that Defendants fraudulently concealed the fact that the cigarettes are not light or lower in tar and nicotine than regular cigarettes, that people do not smoke like the testing machine, and that smokers compensate when smoking “Light” cigarettes in a way that causes them to get more tar and nicotine than predicted by the machine. Plaintiffs contend that they were economically damaged by Defendants’ deceptive practices when they purchased Cambridge Lights and/or Marlboro Lights cigarettes and did not receive “light” or “lowered tar and nicotine” cigarettes. Defendant Philip Morris argues that Plaintiffs’ claim under the UPA must be dismissed because it is expressly preempted by the preemption clause of the Federal Cigarette Labeling and Advertising Act (“FCLAA”), 15 U.S.C. §§ 1331 et seq. Philip Morris, in a separate motion, also argues that Plaintiffs’ UPA claim must be dismissed because it is preempted under principles of implied conflict preemption and because Philip Morris’ actions were exempt from liability under the UPA, as they were “expressly permitted” by the FTC. II. BACKGROUND The following facts are either undisputed or are construed in the light most favorable to Plaintiffs. A. History of FTC and Congressional Action in the Cigarette Industry The Federal Trade Commission Act (“FTC Act”) empowers the FTC to regulate “unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(2). This authority includes the regulation of unfair and deceptive tobacco and cigarette advertisements. Watson v. Philip Morris Companies, Inc., 420 F.3d 852, 855 (8th Cir.2005). In the 1950s, the scientific community began to publish the results of studies demonstrating a link between cigarette smoking and lung cancer. Miller Aff. ¶ 70 & Def.’s Ex. 68. The cigarette industry responded by creating and marketing filtered cigarettes and “lower tar and nicotine” cigarettes. Miller Aff. ¶ 70. In September 1955, the FTC adopted the Cigarette Advertising Guides, which allowed cigarette manufacturers to make claims regarding tar and nicotine levels, but only if they could substantiate their claims “by competent scientific proof.” Miller Aff. ¶ 73 & Def.’s Ex. 68 at 299 & Ex. 70; Price v. Philip Morris, Inc., 219 Ill.2d 182, 302 Ill.Dec. 1, 848 N.E.2d 1, 7 (2005). By 1957, the FTC obtained voluntary discontinuance of 75 advertising claims it found objectionable without having to institute formal proceedings. Miller Aff. ¶ 74 & Def.’s Ex. 68 at 278. Nevertheless, because of the absence of uniform testing, the FTC found the tar and nicotine claims in advertisements misleading and confusing. See Miller Aff. ¶ 76 & Def.’s Ex. 74 at 1. In 1959, the FTC issued an industry-wide advisory stating that “all representations of low or reduced tar or nicotine, whether by filtration or otherwise, will be construed as health claims.” Def.’s Ex. 75; Price, 302 Ill.Dec. 1, 848 N.E.2d at 7. The stated purpose for the change was “to eliminate from cigarette advertising representations which in any way imply health benefit.” Def.’s Ex. 75; Price, 302 Ill.Dec. 1, 848 N.E.2d at 7. The advisory also noted that any nonconforming advertisements would be forwarded to other Bureaus looking forward to mandatory procedures. Def.’s Ex. 75. After issuance of the advisory, seven major cigarette manufacturers agreed to delete all tar and nicotine claims from their ad-visements. Miller Aff. ¶ 78 & Def.’s Ex. 80 at 82. Thus, the advisory, in effect, banned advertising regarding tar and nicotine levels. See id.; Def.’s Ex. 79 at 1; Price, 302 Ill.Dec. 1, 848 N.E.2d at 7. On December 11, 1959, the FTC filed a complaint against Brown & Williamson Tobacco Corporation, which alleged that the company’s advertisements violated the FTC Act by representing that the cigarette’s filter absorbs more tar and nicotine than filters used in other cigarettes. Miller Aff. ¶ 79 & Def.’s Ex. 81 at 1. In February 1960, Brown & Williamson Tobacco Corporation entered into a consent order to cease and desist making such representations. Id. On January 11, 1964, the Surgeon General’s Advisory Committee on Smoking and Health released a report that concluded: “Cigarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action.” Miller Aff. ¶ 83 & Def.’s Ex. 86 at 33. In response to this report, the FTC promulgated a new trade regulation rule, establishing that it would be a violation of the FTC Act to “fail to disclose, clearly and prominently, in all advertising and on every pack, box, carton or other container [of cigarettes] that cigarette smoking is dangerous to health and may cause death from cancer and other diseases.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 513-14, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (citing 29 Fed.Reg. 8325 (1964)). The rule was to take effect on January 1, 1965. Id. Upon a congressional request, however, the FTC postponed enforcement of the regulation for six months. Cipollone, 505 U.S. at 513-14, 112 S.Ct. 2608. After Congress enacted the FCLAA, the FTC then vacated its regulation. Miller Aff. ¶ 89 & Def.’s Ex. 93; see also Price, 302 Ill.Dec. 1, 848 N.E.2d at 7-8. In July 1965, Congress enacted the FCLAA, which mandated the following warning on cigarette packages: “Caution: Cigarette Smoking May Be Hazardous to Your Health.” Pub.L. 89-92, § 4, 79 Stat. 283. The FCLAA provided that no other statement related to smoking and health could be required on cigarette packages, and that no warning at all relating to smoking and health was required for cigarette advertising. Pub.L. 89-92, § 5(a) and (b), 79 Stat. 283. The purpose of the FCLAA was to inform the public that smoking cigarettes may be hazardous to health and to ensure that commerce was not impeded by inconsistent regulations. Pub.L. 89-92, § 2, 79 Stat. 282. Section 5(c) of the Act expressly preserved “the authority of the Federal Trade Commission with respect to unfair or deceptive acts or practices in the advertising of cigarettes.” Pub.L. 89-92, § 5(c), 79 Stat. 283. In' 1966, the FTC began to rethink its ban on truthful claims of tar and nicotine content of cigarettes on packages and in advertising based on the health community’s view that consumers should be encouraged to expose themselves to lower levels of tar and nicotine, which it considered better for health. See Miller Aff. ¶ 92 & Def.’s Ex. 78 at 6-13. The FTC, however, was still concerned about the absence of a standard method to test tar and nicotine levels, which could lead to manufacturers publishing misleading figures in order to secure a competitive advantage. Def.’s Ex. 78 at 11-12; F.T.C. v. Brown & Williamson Tobacco Corp., 778 F.2d 35, 37 (D.C.Cir.1985). In March 1966, the FTC announced its reversal of its ban on representations of tar and nicotine yields in advertising. Miller Aff. ¶ 94 & Def.’s Ex. 78 at 6, Def.’s Ex. 105, and Def.’s Ex. 106. The FTC stated that it would not be a violation of law to make factual statements of tar and nicotine content, expressed in milligrams, of cigarettes so long as (1) no collateral representations are made to reduce or eliminate health hazards, and (2) the statement of tar and nicotine content is supported by tests conducted in accordance with the Cambridge Filter Method. Miller Aff. ¶ 94 & Def.’s Ex. 106. In 1967, the FTC established a uniform test for analyzing tar and nicotine levels in cigarettes, known as the FTC Method or Cambridge Filter 'Method, and set up a laboratory to conduct the test itself. See Miller Aff. ¶ 17; Brown & Williamson, 778 F.2d at 36-37. The FTC Method used a smoking machine that takes a 35 milliliter puff on a cigarette for two seconds duration every 60 seconds until the cigarette is smoked to a specific butt length. Brown & Williamson, 778 F.2d at 37. The machine then collects and measures the tar and nicotine. Id. The test provides an objective basis for assessing the relative amounts of tar and nicotine, of different cigarettes when smoked the same way. Id. From its inception, the FTC knew that the test did not measure the amount of tar or nicotine an individual smoker may receive because that quantity depends on individual smoking behavior. See Watson, 420 F.3d at 855; Brown & Williamson, 778 F.2d at 37; Price, 302 Ill.Dec. 1, 848 N.E.2d at 9. In 1966, five cigarette companies pointed out the shortcomings of the FTC Method to the FTC, particularly as to how the FTC Method does not measure the amount of nicotine that any human being will draw from smoking a particular cigarette due to the varying ways smokers smoke, such as taking a different number of puffs, taking puffs of varying duration, and holding their cigarette in different ways. See Def.’s Ex. 141 at 1-3. Nevertheless, the FTC concluded that the public interest in a standardized test to compare tar and nicotine levels in different brands outweighed the fact that the test does not measure the amount of tar and nicotine that an individual, smoker will consume. See Def.’s Ex. 112 at 1-2; Watson, 420 F.3d at 855; Price, 302 Ill.Dec. 1, 848 N.E.2d at 9. The FTC believed that the “[u]se of more than one testing method would produce different results which would only serve to confuse or mislead the public.” Def.’s Ex. 112 at 2. In its news release, the FTC expressed many, of the limitations of the FTC Method: “[T]he purpose of testing is not to determine the amount of tar and nicotine inhaled by any human smoker, but rather to determine the amount of tar and nicotine generated when a cigarette is smoked by machine in accordance with the prescribed method.” Def.’s Ex. 112 at 2. On October 26, 1967, the FTC announced a clarification of their enforcement policy in regard to representations relating to tar and nicotine content of cigarettes. Miller Aff. ¶ 169 & Def.’s Ex. 124 & 207. The FTC stated that it would not challenge representations “where they are shown to be accurate and fully substantiated by tests conducted in accordance with the standardized testing methods and procedures used by the Federal Trade Commission.” Def.’s Ex. 124 at 3. The FTC further clarified that a cigarette testing relatively high among the lowest in tar and nicotine yield should not be represented to be otherwise and that a cigarette testing relatively low in comparison with, other brands may be so represented, provided that the basis for comparison is fully and fairly stated. Id. The FTC’s 1968 Report to Congress noted that cigarette manufacturers were using a number of descriptors in advertisements for taste, including the term “light.” Miller Aff. ,¶ 179 & Def.’s Ex. 98 at 14. The report also provided some of the reasons for the FTC’s change in position on tar and nicotine disclosure: “Based upon the proposition that lower yield cigarettes present a lessened hazard to the American public, the Commission has acted within the past year to (1) augment information available to the public on the tar and nicotine content of cigarettes and (2) prompt cigarette manufacturers to develop less hazardous cigarettes.” Miller Aff. ¶ 95 & Def.’s Ex. 98 at 17. In addition, the report confirmed: “On October 26, 1967, the Commission issued a policy statement which indicated that as a general rule the Commission would not challenge statements or representations of or relating to tar and nicotine content of cigarettes ‘where they are shown to be accurately and fully substantiated by tests conducted in accordance with the standardized testing methods and procedures used by the Federal Trade Commission’.” Miller Aff. ¶ 170 & Def.’s Ex. 98 at 18. In 1969, Congress amended the FCLAA in order to strengthen the warning label and to ban cigarette advertising in any medium of electronic communication subject to the jurisdiction of the FTC. See Pub.L. 91-222, §§ 4, 6, 84 Stat. 87 (1969). See also Cipollone, 505 U.S. at 515, 112 S.Ct. 2608. The 1969 amendment also replaced § 5(b) with the following preemption provision: “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act.” Pub.L. 91-222, §§ 4, 6, 84 Stat. 87. The amended Act also provided that nothing in the Act “shall be construed to limit, restrict, expand, or otherwise affect the authority of the Federal Trade Commission with respect to unfair or deceptive acts or practices in the advertising of cigarettes.” Pub.L. 91-222, § 7(b), 84 Stat. 89. In 1970, the FTC formally proposed promulgating a Trade Regulation Rule that would require cigarette advertisements to disclose tar and nicotine ratings, as determined by the FTC Method; Def.’s Ex. 126; Watson, 420 F.3d at 855; Brown & Williamson, 778 F.2d at 37. The proposed rule did not reference “lights” cigarettes or representations of “lowered tar and nicotine.” See Def.’s Ex. 126; Pl.’s Ex. 3. The FTC postponed hearings on the proposed Trade Regulation Rule in order to allow the major cigarette manufacturers to tell the FTC how they would intend to voluntarily disclose tar and nicotine yields in advertising. Miller Aff. ¶ 107 & Def.’s Ex. 128. Although the initial proposal of the cigarette manufacturers to the FTC was rejected, eight major members of the cigarette industry subsequently agreed to a voluntary disclosure plan in which cigarette manufacturers would disclose the tar and nicotine figures in all advertising for their cigarettes, as determined by the FTC Method. See Miller Aff. ¶ 108 & Def.’s Ex. 131-33 & Def.’s Ex. 138 at 18-19; Watson, 420 F.3d at 855; Brown & Williamson, 778 F.2d at 37. The language used in the advertisements would be as follows: _ mg. “tar”, _mg. nicotine av. per cigarette, FTC Report (date), or _ mg. “tar”, _ mg. nicotine av. per cigarette by FTC method. See Miller Aff. ¶ 194 & Def.’s Ex. 227 at TIMN 0069578-79. Upon accepting the agreement, the FTC suspended the formal rulemaking proceedings. See Miller Aff. ¶ 108 & Def.’s Ex. 138 at 18-19; Watson, 420 F.3d at 855; Brown & Williamson, 778 F.2d at 37. The FTC stated it believed that the voluntary agreement would free up its manpower and funds to deal with other serious problems in cigarette advertising that otherwise would have been devoted to hearings and court proceedings. Def.’s Ex. 138 at 19. The FTC nonetheless announced that it retained the right to reschedule the Trade Regulation Rule proceedings at any time it deemed such action necessary in the public interest. Def.’s Ex. 133 at 1-2 & Def.’s Ex. 138 at 19. By letter to the FTC dated September 2, 1969, the Code Authority of the National Association of Broadcasters asked the FTC whether it had formulated a policy regarding the use of words such as “low,” “lower,” and “reduced” in describing the tar and nicotine levels of cigarettes. See AMERICAN BRANDS, INC., 1970 WL 117288, 77 F.T.C. 1623 (1970). The FTC clarified in a response letter to the Director of the Code Authority that advertisers could “almost always” avoid imprecision in use of such words and similar words by clearly and conspicuously disclosing the tar and nicotine content of the advertised cigarette, the brand to which it was being compared, and the domestic cigarettes with the highest and lowest yields. See id. The FTC made this exchange of correspondence public. See id. In a subsequent FTC Order examining the propriety of having issued this letter, the FTC stated that it was “not required to restrict its role in making ‘explicit the unexpressed standards of fair dealing’ by precipitously abandoning the alternative methods of defining policy which are ordinarily available to it.” Id. (internal footnote omitted). The FTC Order also said that the letter was its expression of its point of view on the policy issue. Id. In September 1969, the FTC filed a complaint against American Brands, Inc., for falsely advertising its Pall Mall and Lucky Filters cigarettes as “lower in tar” when, in fact, its Pall Mall and Lucky Filters were 56th and 77th highest in tar among the 122 brands tested. IN THE MATTER OF AMERICAN BRANDS, INC., 1971 WL 128779, 79 F.T.C. 255, 256-57 (1971). In 1971, the parties entered into a consent order in which American Brands, Inc., would cease and desist from the following: Stating in advertising that any cigarette manufactured by it, or the smoke therefrom, is low or lower in ‘tar’ by use of the words ‘low,’ ‘lower,’ or ‘reduced’ or like qualifying terms, unless the statement is accompanied by a clear and conspicuous disclosure of: 1. The ‘tar’ and nicotine content in milligrams in the smoke produced by the advertised cigarette; and 2. If the ‘tar’ content of the advertised brand is compared to that of another brand or brands of cigarette, (a) the ‘tar’ and nicotine content in milligrams of the smoke produced by that brand or those brands of cigarette, and (b) the ‘tar’ and nicotine content in milligrams of the lowest yield domestic cigarette. Id. at 258-59. The consent order also defined the term “tar” as “the total particulate matter in the mainstream smoke of cigarettes as determined by the testing method employed by the [FTC] in its testing of the smoke of domestic cigarettes.” Id. at 259. The order defined “nicotine” as the “total alkaloids as nicotine in the mainstream smoke of cigarettes as determined by the testing method employed by the [FTC] in its testing of the smoke of domestic cigarettes.” Id. In its 1971 Report to Congress, the FTC described the consent order as part of its “[r]egulatory activity” for the year. Miller Aff. ¶ 187 & Def.’s Ex. 139 at 13-14; Price, 302 Ill.Dec. 1, 848 N.E.2d at 13. In that same report, the FTC noted that consent orders “carry the force of law.” Def.’s Ex. 139 at 16; Price, 302 Ill.Dec. 1, 848 N.E.2d at 13. In 1977, Lorillard, a cigarette manufacturer, developed a new ventilated filtration system for some of its cigarettes and asked the FTC to change the cigarette insertion depth in its FTC Method testing so that the machine’s cigarette holders would not block the filtration system. Miller Aff. ¶ 114 & Def.’s Ex. 142. The FTC rejected Lorillard’s request out of a concern that the change in insertion depth would cause a lack of continuity with previous test results. See Miller Aff. ¶¶ 116-17 & Def.’s Ex. 142 at 2. In 1978, the FTC recommended in its Report to Congress that the Public Health Cigarette Smoking Act be amended to require that the tar and nicotine content of each cigarette, according to FTC Method testing, appear on all cigarette packages as well as in all cigarette advertising. Miller Aff. ¶ 109 & Def.’s Ex. 140 at 14. The FTC had made the same request in its 1967 Report to Congress. Miller Aff. ¶ 109 & Def.’s Ex. 99 at 30. Congress did not make the recommended amendment. Miller Aff. ¶ 109. See also 15 U.S.C. § 1333. In its 1979 Report to Congress, the FTC noted that it defined “low tar” as 15.0 mg. or less tar. Miller Aff. ¶ 174 & Def.’s Ex. 209 at 11 n. 8 & Def.’s Ex. 210 at 18 n. 11. The FTC stated, however, that it had not defined “ultra-low tar” or any other term other than “low tar.” Id. Advertisers, however, were using a variety of terms to distinguish among tar levels. Id. Advertisers sometimes call cigarettes with 3 mg. tar or less “ultra low ‘tar’ ” cigarettes. Def.’s Ex. 210 at 17-18. The FTC reported that advertising expenditures and sales of low tar cigarettes in 1979 had increased substantially over the previous year. Miller Aff. ¶ 174 & Def.’s Ex. 209 at 10. In 1980, the FTC reported that the market share of low tar brands of cigarettes had increased steadily from 2% in 1967 to 44.8% in 1980. Def.’s Ex. 210 at 17. In 1981, the FTC published a staff report the purpose of which was to examine whether cigarette advertising adequately warns consumers of the health hazards of smoking and whether new action was needed. See Def.’s Ex. 100 at 2. The report discussed, among other things, the issue of compensation. Miller Aff. ¶ 138 & Def.’s Ex. 100 at 1-54 — 1-55. The report stated that there was evidence that smokers of “low tar” cigarettes compensate for the reduced level of nicotine by a number of methods, such as inhaling more often, inhaling deeper, smoking the cigarette closer to the filter, or smoking more cigarettes. Id. The report also discussed how the construction of many “low tar” cigarettes can result in a higher level of tar and nicotine intake than the FTC Method would suggest, because smokers cover tiny holes in the cigarette with their fingers or lips when smoking, which increases the level of tar and nicotine inhaled. Id. In regard to the meaning of “low tar,” the staff report stated: “The FTC formally defines a low “tar” cigarette as one that has 15.0 or less milligrams of “tar”. As indicated in the table in fn. 178, the informal definition of “low tar” is changing.” Def.’s Ex. 100 at 1-50 n. 175. The report also suggested that the FTC considered “ultra-low ‘tar’ ” cigarettes as those having 6.0 mg. or less “tar.” See Miller Aff. ¶ 175 & Def.’s Ex. 100 at 1-50. In 1981, the FTC also investigated a claim that Brown & Williamson’s Barclay cigarettes had a unique channel design that reduced tar yield in FTC Method testing but not when smoked by individuals. See Miller Aff. ¶¶ 119-22 & Def.’s Ex. 143. The FTC determined that the FTC Method did not adequately measure the tar and nicotine levels in the Barclay cigarettes as compared to other cigarettes and sought public comment on possible modifications to its test method. Miller Aff. ¶¶ 122-23 & Def.’s Ex. 143. When Brown & Williamson continued to advertise its tar yields as “1 mg. tar” according to “a recognized method used by B & W and supported by independent laboratories,” the FTC filed suit against Brown & Williamson because the FTC asserted that the “1 mg. tar” claim deceptively led consumers to believe that Barclay’s tar delivery was similar to that of other cigarettes rated 1 mg. tar by the FTC. See F.T.C. v. Brown & Williamson Tobacco Corp., 580 F.Supp. 981, 984 (D.D.C.1983). Brown & Williamson countered that the FTC Method is itself misleading because smokers “compensate” by changing their smoking behavior to ingest more tar and nicotine from low-rated cigarettes than the FTC rating system would suggest. Id. at 984-85. The district court rejected Brown & Williamson’s argument, finding that the FTC Method, while in need of improvement, provides legitimate comparative information to consumers and that Brown & Williamson’s “1 mg. tar” claim was deceptive. Id. at 986, 989. The district court therefore enjoined Brown & Williamson from advertising with any claim of a specific milligram tar content rating, unless the rating was approved by the FTC or derived using an FTC-approved testing methodology. Id. at 990. Upon review, the D.C. Circuit affirmed in part, but remanded to the district court to modify the injunction to allow for the presentation of results of a different testing system, so long as any advertisement provides sufficient data to avoid deceptiveness due to confusion with the FTC testing system. Brown & Williamson, 778 F.2d at 36-37, 45. In so doing, the D.C. Circuit explained: “Because the FTC has not adopted its system of testing pursuant to a Trade Regulation Rule under section 18 of the FTC Act, 15 U.S.C. § 57a (1982), one cannot say that the FTC system constitutes the only acceptable one available for measuring milligrams of tar per cigarette.” Id. at 44. The circuit court placed the burden on the FTC of demonstrating any deceptiveness of results obtained and advertised under any such new testing system. Id. at 45. On April 13, 1983, during the Barclay cigarette litigation, the FTC requested public comment on possible testing modifications for tar and nicotine content in cigarettes. 48 Fed.Reg. 15953, 15953-55. The FTC reiterated that its testing data, were for comparative purposes only, noting that smoking patterns and smoking more cigarettes can result in a greater tar and nicotine intake than the FTC Method test results would suggest. See id. at 15954. The FTC received a number of public comments, but no clear consensus emerged as to how to modify the FTC’s testing method. Miller Aff. ¶ 144 & Def.’s Ex. 79 at 7. Accordingly, at that time, the FTC did not change its test method to address compensatory smoking. Id. Congress again amended the FCLAA in 1984 through the Comprehensive Smoking Education Act, Pub.L. 98-474, 98 Stat. 2200 (1984). The 1984 amendment once again changed the federally mandated warnings, re-designated sections, added a section relating to cigarette ingredients, and made a few additional amendments. Pub.L. 98-474, 98 Stat. 2200, 2201-05. In May 1987, the FTC Bureau of Protection Director at the time, William Mac-Leod, testified during a congressional hearing about the status of the FTC testing laboratory. See Pis.’ Ex. 9 at 47. Mr. MacLeod stated that the cigarette companies were not required by law or regulation to use the FTC Method. Id. at 7. Mr. MacLeod also testified that there was “no assurance” that the cigarette companies would continue to include tar and nicotine content in their advertisements, but that the industry had followed a pattern for 20 years of following the voluntary agreement. See id. at 46-47. The FTC closed its testing laboratory in 1987, but nonetheless continued to require cigarette manufacturers to test cigarettes using the FTC Method. Miller Aff. ¶ 101 & Def.’s Ex. 123 at 1-2; 62 Fed.Reg. 48158 n. 5. The FTC transferred testing to the Tobacco Institute Testing Laboratory. Miller Aff. ¶ 101 & Def.’s Ex. 123 at 1-2; 62 Fed.Reg. 48158 n. 5. In 1988, two Congressmen introduced a bill that would have repealed the FCLAA preemption clauses by allowing state law claims despite compliance with the FCLAA. See Miller Aff. ¶ 224-25 & Def.’s Ex. 240 (H.R.4543). The FTC expressed reservations with the bill since state action could result in inconsistent health warnings, undermine the Surgeon General warnings, and make it difficult to advertise cigarettes on a national basis, which could effectively operate as an advertising ban, which the FTC did not generally favor. Miller Aff. ¶¶ 227-28 & Def.’s Ex. 242, 244. The proposed bill was not enacted. See 15 U.S.C. § 1334. In 1992, the Coalition on Smoking OR Health petitioned the FTC to issue a complaint against the major tobacco companies who advertise cigarettes as low tar, light, ultra low tar, or lower in tar, terms which misleadingly imply that the cigarettes are safe or safer than other brands of cigarettes. See Miller Aff. ¶ 195 & Def.’s Ex. 179 at 1-2. The petition also asserted that low-yield brands may even increase the health risk for smokers who compensate for reduced nicotine intake by increasing the number of cigarettes smoked per day, the frequency of puffing, and the depth and duration of inhalation. Def.’s Ex. 179 at 2. Although the FTC investigated the petition, it took no formal action against the cigarette companies and did not change its policy on the use of the term “lights.” See Miller Aff. ¶ 146, 198 & Defl’s Ex. 181 at 484-95, Def.’s Ex. 37 at 55, 68. On July 20, 1994, the FTC chairman wrote a letter to the National Cancer Institute (“NCI”) asking that it consider convening a conference to address issues relating to the FTC testing methods and rating system. Miller Aff. ¶ 148 & Def.’s Ex. 184 & Ex. 37 at 64. The FTC requested that the NCI consider a number of issues, including compensation effects, the FTC testing methodology, and the potential health benefits of lower tar cigarettes. Id. In particular, the FTC suggested the following topics: “are low-tar cigarettes (cigarettes rated at 15 mg. or less of tar) less dangerous than high-tar cigarettes (those rated at more than 15 mg. of tar) and, if so, what is the extent of their health benefit?” and “are ultra low-tar cigarettes (cigarettes rated at 6 mg. or less of tar) less dangerous than low-tar and/or high-tar cigarettes and, if so, what is the extent of their health benefit?” Miller Aff. ¶ 176 & Def.’s Ex. 184 at 4. The NCI ad hoc expert committee held a conference in December 1994. See Miller Aff. ¶ 149 & Def.’s Ex. 79 at vi; Price, 302 Ill.Dec. 1, 848 N.E.2d at 18. Following the conference, the committee reached a number of conclusions, including the following: (1) the smoking of low-yield cigarettes has a small effect in reducing the risk of cancer, no effect on the risk of cardiovascular diseases, and an uncertain effect on the risk of pulmonary disease; (2) smokers who switch to lower tar cigarettes frequently change their smoking behavior in a way that may negate potential health benefits; (3) the system should measure and publish a range of tar, nicotine, and carbon monoxide yields that smokers should expect from each cigarette; and (4) classifications such as “light” and “ultralight” represent health claims and should be regulated and accompanied with an appropriate disclaimer. Def.’s Ex. 79 at vi-vii. Following the conference, and despite the recommendation, the FTC did not adopt a rule or take other regulatory action to require disclaimers for light and low tar descriptors. Price, 302 Ill.Dec. 1, 848 N.E.2d at 18. Also in 1994, the FTC again challenged a company’s cigarette advertisements when the FTC filed a complaint against American Tobacco Company for advertisements indicating that 10 packs of their Carlton cigarettes had less tar than one pack of a competing brand or brands. IN THE MATTER OF THE AMERICAN TOBACCO CO., 1995 WL 17012576, 119 F.T.C. 3, 3-4 (1995). The FTC asserted that the advertisements were misleading because they indicated that consumers would get less tar by smoking 10 packs of Carlton cigarettes than by smoking a single pack of the other brands depicted when, in truth, the ratings were based on smoking machine tests that did not reflect actual smoking or take into account compensatory smoking behavior. Id. at 4. In 1995, the FTC and American Tobacco Company entered into a consent agreement in which American Tobacco Company would cease and desist from representing, through tar ratings of its brands of cigarettes as a numerical multiple, fraction, or ratio of the tar of any other brand of cigarettes, or through visual depictions of ten packs of any of its brands versus one pack of any other brand, that consumers will get less tar by smoking ten packs of any cigarette rated as having 1 mg. of tar than by smoking a single pack of any other brand of cigarettes rated as having more than 10 mg. of tar. Id. at 9-10. The order clarified, however, that American Tobacco Company could present in its advertisements representations that its brand was “low,” “lower,” or “lowest” in tar and/or nicotine so long as no more than a single cigarette or pack of its brand was visually depicted versus a single cigarette or pack of any other brand. Id. at 11. In 1997, the FTC solicited public comments on proposed revisions to the FTC Method as well as on alternative approaches to testing. Cigarette Testing, Request for Public Comment, 62 Fed.Reg. 48,158 (Sept. 12, 1997). In its solicitation, the FTC explained the limitations of the FTC Method due to changes in cigarette design and compensatory smoking behavior. Id. at 48,159. The FTC also noted its concern that consumers may believe the existing method indicates how much tar and nicotine they will get from a particular cigarette and that consumers may fail to understand that the amount of tar and nicotine intake depends on how a cigarette is smoked. Id. The FTC also expressed concern that consumers may underestimate the health risk associated with smoking lower-rated brands. Id. The FTC solicitation also requested public comment on the use of cigarette descriptors. Id. at 48,163. Although noting that terms like “low tar,” “light,” and “ultra light” have no official definitions, the FTC stated that the cigarette industry uses the terms to reflect ranges of FTC tar ratings. Id. The solicitation stated that generally the term “low tar” means a tar rating of 7 to 15 milligrams and that the term “ultra low tar” means a tar rating of 6 milligrams or less. See id. In the solicitation, the FTC grouped the terms “light” and “low tar” together when asking whether consumers believe they will get significantly less tar from such cigarettes than regular* cigarettes, and the FTC grouped the terms “ultra low tar” and “ultra light” together when asking if consumers believed they will get less tar from such cigarettes than from “light” or “low tar” cigarettes. See id. Among other things, the FTC requested comment on whether there was a need for official guidance with respect to the terms used in marketing lower-rated cigarettes. Id. Following the FTC solicitation, the FTC received numerous and varied public comments. See Miller Aff. ¶ 158 & Def.’s Ex. 192-95. On November 24, 1998, Senator Frank Lautenberg wrote a letter to the FTC to urge it to begin a proceeding to disallow the use of “Light” or “Ultra Light” terms in cigarette advertisements or the listing of tar and nicotine ratings on their products or in advertisements until an accurate system measuring the health implications of cigarettes is established. Miller Aff. ¶ 207 & Def.’s Ex. 230. The same day the FTC issued a press release in response to Senator Lautenberg’s letter stating that it was still evaluating problems with the FTC Method. See Miller Aff. ¶208 & Def.’s Ex. 231. In 1999, the FTC issued its Report to Congress for 1997. Def.’s Ex. 197. The report stated that since 1968 the average sales-weighted machine-measured tar yield had fallen from 21.6 mg. to 12.0 mg., and that in 1997, 70% of all cigarettes sold had machine-measured tar yields of 15 mg. or less. Id. at 3. Despite these figures, the FTC noted its concern that the FTC Method may be misleading due to cigarette design changes and compensatory smoking behavior and that low-yield cigarettes may not be less harmful than higher-rated ones. Id. at 3-5. The FTC noted that, because of these concerns, it had requested that the Department of Health and Human Services (“HHS”) conduct a review of the FTC Method. Miller Aff. ¶ 158 & Def.’s Ex. 197 at 5. The report also recommended that Congress consider giving authority over cigarette testing to one of the federal government’s science-based, public health agencies. Miller Aff. If 158 & Def.’s Ex. 197 at 6. In 2001, the HHS released a study entitled “Monograph 13: Risks Associated with Smoking Cigarettes with Low Machine-Measured Yields of Tar and Nicotine.” Pl.’s Expanded Combined Resp., Ex. 2; Miller Aff. ¶ 159 & Def.’s Ex. 198. The study concluded, among other things, that FTC Method measurements do not offer smokers meaningful information of the tar and nicotine they will receive from a cigarette or as to the relative amounts of exposure from smoking different brands of cigarettes. PL’s Expanded Combined Resp., Ex. 2 at 10. The study reported that changes in cigarette design that reduced machine-measured tar yields also led to a disassociation between the FTC Method yield and the amount of tar and nicotine actually received by the smoker. Id., Ex. 2 at 1. The study also concluded: “Internal tobacco company documents demonstrate that the cigarette manufacturers recognized the inherent deception of advertising that offered cigarettes as “Light” or “Ultra-Light,” or as having the lowest tar and nicotine yields.” Id., Ex. 2 at 233. The study also noted that cigarette brands yielding approximately 1-5 or 6 mg. tar by the FTC Method are generally called “Ultra-Light;” brands yielding between 6 or 7-15 mg. tar are called “Light;” and brands yielding more than 15 mg. tar are called “Regular” or “Full Flavor.” Miller Aff. ¶ 177 & Def.’s Ex. 202 at 13. “By convention, cigarettes yielding 15 mg. tar by the FTC method are called ‘low tar.’ ” Id. In a press release, the FTC stated that Monograph 13 represented the first step in HHS’s response to the FTC’s request for review of the FTC Method. Miller Aff. ¶ 159' & Def.’s Ex. 198 at 1. B. Philip Morris, Marlboro Lights, and Cambridge Lights Defendant Philip Morris has manufactured Marlboro Lights cigarettes since 1971 and has manufactured Cambridge Lights cigarettes since 1986. Pis.’ Second Am. Compl. ¶ 6; Def. Philip Morris’ Answer (Doc. No. 38), ¶ 6. Philip Morris has distributed and sold Marlboro Lights and Cambridge Lights throughout the United States, including New Mexico. Pis.’ Second Am. Compl. ¶ 7; Def. Philip Morris’ Answer, ¶ 7. Plaintiffs purchased and smoked Marlboro Lights cigarettes. See Def.’s Ex. A (Mulford Dep.) at 15-16; Def.’s Ex. B (Newby Dep.) at 94; Def.’s Ex. C (Fox Dep.) at 55; and Def.’s Ex. D (DeLuna Dep.) at 74,104. Both Marlboro Lights and Cambridge Lights packages contain the word “Lights,” and until the beginning of 2003, Marlboro Lights packages contained the words “lowered tar and nicotine.” Def. Philip Morris’ Answer, ¶ 8. Every package of Marlboro Lights and Cambridge Lights purchased by Plaintiffs in New Mexico contained the FCLAA’s federally mandated Surgeon General’s health warning. See Def.’s Express Preemption Mot., Undisputed Fact 2. Marlboro Lights cigarette packages, however, have never contained numerical information concerning tar and nicotine yields. Pis.’ Expanded Combined Resp., Ex. 5 at 7. Plaintiffs interpreted the words “lights” and “lowered tar and nicotine” on Marlboro Lights packages as meaning that Marlboro Lights cigarettes were “safer,” “less harmful,” or “less hazardous” than regular cigarettes. Def.’s Ex. A at 107, 117-18; Def.’s Ex. B at 68-69; Def.’s Ex. C at 55, 92, 171-72, 180-81; Def.’s Ex. D at 104, 140. Plaintiffs allege that Philip Morris’ use of the terms “Light,” “Lights,” or “Lowered in Tar and Nicotine” in advertising its Marlboro Lights and Cambridge Lights cigarettes constitute misrepresentations. See, e.g., Def.’s Ex. E at 11. Plaintiffs Mulford, Newby, and Fox felt that if Marlboro Lights packages contained an additional warning stating that they were not safer or less hazardous than regular cigarettes, then the warning would have prevented them from thinking that Marlboro Lights were safer than regular cigarettes. Def.’s Ex. A at 183, 187-88; Def.’s Ex. B at 198-202; Def.’s Ex. C at 192-95. Plaintiffs also acknowledged that Marlboro Lights feel and taste lighter when smoked as compared to regular cigarettes. See Def.’s Ex. A at 15-17, 107; Def.’s Ex. B at 94-95; Def.’s Ex. C at 94; Def.’s Ex. D at 27-28, 74. A summary in a March 1, 1974 internal Philip Morris report described compensation — that people smoke in a way to get more intake than predicted by a machine. See Pis.’ Expanded Combined Resp., Ex. 6 at CKT001064. The report concluded that the FTC Method for cigarette testing should be retained because it gives low numbers and permits comparison between brands. Id. at CKT001065. Six days later, on March 7, 1974, R. Fagan of Philip Morris sent an internal office correspondence entitled, “Moral Issue on FTC Tar.” Pis.’ Expanded Combined Resp., Ex. 7. The author stated that he did not believe that there was a moral reason to reveal to the FTC that cigarette smokers may be getting more tar than the FTC Method suggested based on a number of reasons, including (1) that it was already known that smokers could vary their intake and (2) that all the FTC was trying to do with the publicized numbers was offer a comparison between cigarettes where the puffing behavior remains constant. See id. On September 17, 1975, an internal Philip Morris memorandum was prepared entitled, “Marlboro — Marlboro Lights Study Delivery Data.” Pl.’s Expanded Combined Resp., Ex. 1. The internal memorandum states that Marlboro Lights cigarettes were not smoked like regular cigarettes: smokers took larger puff volumes on Marlboro Lights. Id. at 1. The memorandum concluded that smokers of Marlboro Lights “did not achieve any reduction in smoke intake.” Id. at 3. Following the NCI’s release of Monograph 13, Philip Morris on September 18, 2002, petitioned the FTC to promulgate rules governing the following: “(1) the disclosure of average tar and nicotine yields of cigarette brands, (2) the use of disclaimers with respect to average tar yield and the health effects of ‘low-yield’ cigarettes, and (3) the use of descriptors, such as ‘light’ and ‘ultra light.’ ” Pis.’ Expanded Combined Resp., Ex. 12 at 1 (footnote omitted). Philip Morris requested that the FTC require disclosure of tar and nicotine yields by the FTC Method or an alternative testing method, if adopted, and require that any such disclosure be accompanied by disclaimers that the amount of tar delivered depends on how a person smokes, that smokers may intake more tar and nicotine than estimated by the FTC Method, that low-tar cigarettes have not been established to be safer than other cigarettes, and that smoking low-tar cigarettes does not make it easier to quit smoking. Id. at 5-6. Finally, Philip Morris asked the FTC to promulgate regulations to require descriptors to be used in a uniform manner throughout the industry and to be defined by specific tar and nicotine ranges. Id. at 6. On November 14, 2005, Philip Morris expressed its position supporting passage of legislation that would give the U.S. Food and Drug Administration (“FDA”) authority to broadly regulate tobacco products. Pis.’ Expanded Combined Resp., Ex. 10 at 1. Philip Morris stated its support for the bill, which purportedly gave the FDA authority to regulate, or ban, terms such as “light” and “low tar.” Id. FTC reports of tar and nicotine contents of cigarettes beginning in 1972 and through 2005 demonstrate that Marlboro Lights cigarettes have consistently tested below 15 mg. tar according to the FTC Method. See Def.’s Ex. 1-32. Beginning with the December 1988 FTC report, Cambridge Lights cigarettes also tested consistently below 15 mg. tar according to the FTC Method. See Def.’s Ex. 17-32. C. Plaintiffs’ Second Amended Complaint Plaintiffs filed their Second Amended Class Action Complaint and Jury Demand (“Second Amended Complaint”) on December 28, 2005. (Doc. No. 33). In the only remaining count, Plaintiffs allege that Defendants violated the UPA through the following acts: a. Falsely and/or misleadingly representing that their product is “light” and/or delivers “lowered tar and nicotine” in comparison to regular cigarettes; b. Designing cigarettes to register lowered tar and nicotine levels under machine testing conditions while actually delivering higher levels of these compounds when smoked by consumers, thereby rendering the “light” product descriptor deceptive and misleading; c. Fraudulently concealing the true nature of their “Lights” cigarettes from Plaintiffs; d. Fraudulently concealing the matters set forth herein, including the facts, memos, and admissions contained within their own files, including information relating to the facts that people do not smoke like the testing machine ...; that people smoke in such a way that they get much more than predicted by the machine — i.e., they compensate; and that measured resistance to draw on unlit cigarettes is far from what the smoker experiences as he or she puffs a cigarette; e. Placing ventilation holes on the filter of light cigarettes that are covered or blocked by the smoker’s lips of fingers under normal use, thereby negating the represented effects of the light brand; f. Manipulating the nicotine levels in their ‘‘light” cigarettes; g. Employing techniques that purportedly reduce machine-measured levels of tar in their Cambridge Lights and Marlboro Lights cigarettes ...; and ■h. Manipulating the design of their Cambridge Lights and Marlboro Lights cigarettes ... in such a way that resulted in delivery of greater amounts of tar and nicotine when smoked under actual conditions than Defendants represent by use of the “light” product descriptor. Second Am. Compl. ¶ 45. Plaintiffs seek economic and punitive damages and disclaim any claim for damages for personal injuries. Id. ¶¶ 52-54. III. STANDARD Summary judgment is appropriate only if “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Quaker State Minit-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir.1995) (quoting Fed.R.Civ.P. 56(c)). “All facts and reasonable inferences must be construed in the light most favorable to the nonmoving party.” Id. (internal quotations omitted). Under Rule 56(c), the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, only disputes of facts that might affect the outcome of the case will properly preclude the entry of summary judgment. Id. at 248, 106 S.Ct. 2505. Initially, the moving party bears the burden of showing that no genuine issue of material fact exists. Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033, 1036 (10th Cir.1993). Once the moving party meets its burden, the nonmoving party must show that genuine issues remain for trial. Id. The nonmoving party must go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial. See id.; Kaus v. Standard Ins. Co., 985 F.Supp. 1277, 1281 (D.Kan.1997) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The Court will consider Defendant’s motions in light of these standards. IV. DISCUSSION A. Express Preemption On May 5, 2006, Defendant Philip Morris filed a motion for summary judgment, asserting that Plaintiffs UPA claim must be dismissed because it is preempted by the FCLAA’s express preemption provision set forth in 15 U.S.C. § 1334(b). Philip Morris alternatively argues for partial summary judgment as to all aspects of Plaintiffs’ claim that are preempted, specifically any failure to warn and omission theory of liability under the UPA. Plaintiffs, on the other hand, contend that their UPA claim is a fraudulent misrepresentation claim arising from false statements of material fact made in advertisements, which the Supreme Court specifically held was not expressly preempted in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (plurality opinion). Congress expressly stated its twin purposes in enacting the FCLAA: (1) to inform the public of the adverse health effects of cigarette smoking and (2) to protect commerce and the national economy from interference due to “diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.” , 15 U.S.C. § 1331. To accomplish the first purpose, the FCLAA prescribes specific, rotating warnings that must appear on all cigarette packages and advertising. See 15 U.S.C. § 1333. In light of the second purpose, Congress prohibited any other statement relating to smoking and health from being required on any cigarette package. 15 U.S.C. § 1334(a). Congress also included in the FCLAA the following preemption provision as to “State regulations”: “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” 15 U.S.C. § 1334(b). The fact that Congress provided an express preemption clause supports a reasonable inference that it did not intend to preempt matters outside the clause, and thus, the task of courts “is to identify the domain expressly pre-empted” by the clause. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). Congressional purpose is the “ultimate touchstone” of the court’s inquiry. Id. (quoting Cipollone, 505 U.S. at 516, 112 S.Ct. 2608). Courts must follow the assumption that a federal act does not supersede the States’ historic police powers unless that is the clear and manifest purpose of Congress. Id. at 541-42, 121 S.Ct. 2404. The court’s analysis thus begins with the language of the statute, and the court must give meaning to each element of the express preemption provision. Id. at 542, 121 S.Ct. 2404. In Cipollone, the Supreme Court addressed the language and scope of the FCLAA’s preemption provision. 505 U.S. at 520-30,112 S.Ct. 2608. First, the Court noted that the amended preemption provision sweeps much broader than its predecessor provision such that the phrase “[n]o requirement or prohibition” indicates “no distinction between positive enactments and common law.” Id. at 521, 112 S.Ct. 2608. The Court thus concluded that it must look at each common-law claim to determine individually whether each is preempted. Id. at 523, 112 S.Ct. 2608. The central inquiry for the courts is “whether the legal duty that is the predicate of the common-law damages action constitutes a ‘requirement or prohibition based on smoking and health ... imposed under State law with respect to ... advertising or promotion,’ giving that clause a fair but narrow reading.” Id. The Court explained that each phrase within the preemption clause “limits the universe of common-law claims pre-empted by the statute.” Id. The plurality in Cipollone then examined each of the plaintiffs claims in turn. As relevant here, the Court determined that the plaintiffs failure-to-warn claims were preempted to the extent they required a showing that the cigarette manufacturers’ post-1969 advertising or promotions should have included additional, or more clearly stated, warnings. Id. at 524, 112 S.Ct. 2608. To the extent that the failure-to-warn claims were based on the defendants’ testing or research practices, however, those claims were not preempted because they were unrelated to advertising or promotion. Id. at 524-25, 112 S.Ct. 2608. As to the plaintiffs fraudulent misrepresentation claims, the Court determined that the plaintiff alleged two distinct theories: (1) that the cigarette manufacturers, through their advertising, neutralized the effect of federally mandated warning labels, and (2) that the cigarette manufacturers committed intentional fraud and misrepresentation by false representation of a material fact and by concealment of a material fact. Id. at 527-28, 112 S.Ct. 2608. In holding that the FCLAA preempts the first theory, the Court explained that the claim was predicated on a state-law prohibition against statements in advertising that tend to minimize the health hazards of smoking and that the FCLAA preempts both requirements and prohibitions. Id. at 527, 112 S.Ct. 2608. The Court stated that such a prohibition was merely the converse of a state-law requirement that warnings be included. Id. The Court also reasoned that the first theory of fraudulent misrepresentation was inextricably related to the failure-to-warn theory, which the FCLAA also precluded. Id. at 528, 112 S.Ct. 2608. Unlike the first theory of fraudulent misrepresentation, the Court ruled that the predicate of the second theory was a state-law duty not to make false statements of material fact or to conceal such facts. Id. The Court concluded that claims for false representation “are predicated not on a duty ‘based on smoking and health’ but rather on a more general obligation — the duty not to deceive.” Id. at 528-29, 112 S.Ct. 2608. The Court also stated that state-law intentional fraud claims do not create diverse and confusing standards because they rely on the single, uniform standard of falsity. Id. at 529, 112 S.Ct. 2608. Philip Morris argues that each phrase within the preemption clause is met in this case because Plaintiffs’ UPA claim is predicated on New Mexico state-law requirements or prohibitions with respect to Philip Morris’ advertising or promotion of Marlboro Lights and Cambridge Lights cigarettes based on concerns about smoking and health. Philip Morris contends that each of Plaintiffs’ theories underlying its UPA claim is inextricably related to the failure-to-warn theory that the Cipollone Court determined was preempted by the FCLAA. Plaintiffs, on the other hand, assert that their claim is based on the theory of intentional fraudulent misrepresentation that the Supreme Court concluded was not preempted by the FCLAA. Plaintiffs argue that their claim is based on a duty not to deceive and is not based on smoking and health. Plaintiffs contend that they are not asserting warning neutralization or omission claims. As Cipollone instructs, this Court must analyze the substance and theories behind Plaintiffs’ claim. Plaintiffs’ sole claim is for violation of the UPA, NMSA § 57-12-1 et seq. As relevant here, the UPA makes it unlawful to conduct trade or commerce using unfair or deceptive trade practices. NMSA § 57-12-3. The statute defines “unfair or deceptive trade practice” as “any false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale ... of goods ... by any person in the regular course of his trade or commerce, which may, tends to or does deceive or mislead any person.... ” NMSA § 57-12-2(D). Plaintiffs allege that Philip Morris violated the act by, among other things, falsely and misleadingly representing that Marlboro Lights and Cambridge Lights cigarettes are “light” and/or deliver “lowered tar and nicotine” and fraudulently concealing the true nature of their “Lights” cigarettes. See Second Am. Compl. ¶¶ 44-45. The Court finds that Plaintiffs have alleged a UPA claim based on a theory of false representation of a material fact. The Court finds no basis to distinguish Plaintiffs’ UPA claim of false representation from the false representation of a material fact claim in Cipollone that the Supreme Court concluded was based on a duty not to deceive. The Court therefore concludes that Plaintiffs’ UPA claim based on the theory of false representation rests on a duty not to deceive and not on a duty “based on smoking and health,” and thus, is not expressly preempted by the FCLAA Cf. Cipollone, 505 U.S. at 528-29, 112 S.Ct. 2608. See also Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1201-02 (11th Cir.2004) (FCLAA does not expressly preempt state law claim of conspiracy to fraudulently misrepresent dangers of cigarettes, insofar as claim is based on allegation that defendants made statements knowing their falsity); Brown v. Brown & Williamson Tobacco Corp., 2005 WL 2243466 (W.D.La. Sept. 14, 2005) (unpublished opinion) (plaintiffs claim for fraud and misrepresentation under Louisiana’s Unfair Trade Practices and Consumer Protection Act was not expressly preempted because it was based on general duty not to deceive, not on “smoking and health”); U.S. v. Philip Morris, Inc., 263 F.Supp.2d 72, 75, 80-81 (D.D.C.2003) (RICO claims based on charges that defendants intentionally misled consumers about hazards of their products, including use of “light” and “low tar/low nicotine” cigarettes, are predicated on duty not to deceive and, thus, are not preempted by FCLAA); Izzarelli v. R.J. Reynolds Tobacco Co., 117 F.Supp.2d 167, 170-71, 175 (D.Conn.2000) (refusing to construe plaintiffs false representation claim under Connecticut Unfair Trade Practices Act into failure-to-warn or warning neutralization claim and concluding that false representation claim based on fraudulent statements about health hazards and addictive nature of cigarettes arose from duty not to deceive and was not expressly preempted by FCLAA); Price, 302 Ill.Dec. 1, 848 N.E.2d at 33 (construing nearly identical “lights” claim as “a pure case of consumer fraud” and rejecting defendant’s attempt to cast plaintiffs’ claim as failure-to-warn or warning neutralization claim); Aspinall v. Phillip Morris Companies, Inc., 2006 WL 2971490, *11 (Mass.Dist.Ct. Aug. 9, 2006) (unpublished opinion) (state-law claim for unfair or deceptive acts based on use of “lights” and “lowered tar and nicotine” being deceptive given actual amount of tar and nicotine smokers receive not expressly preempted because predicate legal duty is duty not to deceive). This ruling conforms with the Supreme Court’s conclusion that Congress intended the phrase “based on smoking and health” to be construed narrowly “so as not to proscribe the regulation of deceptive advertising.” See Cipollone, 505 U.S. at 529, 112 S.Ct. 2608. Philip Morris attempts to circumvent the holding of Cipollone by converting Plaintiffs’ stated claim into a failure-to-warn and/or warning neutralization claim. To be sure, to the extent Plaintiffs’ claim rests on theories of failure-to-warn or warning neutralization, those theories are preempted. See Cipollone, 505 U.S. at 524-25, 527-29, 112 S.Ct. 2608. The Court agrees with Philip Morris that Plaintiffs’ UPA claim based on a theory of fraudulent concealment — that Philip Morris fraudulently concealed the true nature of their “Lights” cigarettes and other information — is nothing more than a failure-to-warn theory, as the theory is predicated on a duty to warn consumers of the concealed information. Therefore, to the extent Plaintiffs’ UPA claim rests on a theory of fraudulent concealment, that claim is expressly preempted. Cf. Allgood v. R.J. Reynolds Tobacco Co., 80 F.3d 168, 171 (5th Cir.1996) (fraudulent concealment claim based on concealing information on health risks of smoking preempted by FCLAA); Waterhouse v. R.J. Reynolds Tobacco Co., 270 F.Supp.2d 678, 684-85 (D.Md.2003) (fraudulent concealment claim against cigarette manufacturer nothing more than failure-to-warn claim in different dress); Small v. Lorillard Tobacco Co., Inc., 252 A.D.2d 1, 679 N.Y.S.2d 593, 603-04 (N.Y.App.Div.1998) (fraudulent concealment claims bas