*1 GROUP, INC., GOOD ALTRIA et et al. al. 6, 2008 Decided December Argued October No. 07-562. *2 Kennedy, Stevens, J., Court, opinion which delivered the of Thomas, J., Souter, Ginsburg, Breyer, JJ., filed a dissent- joined. and Roberts, Auto, Scalia and J., JJ., joined, ing opinion, in C. which and post, p. 91. B.
Theodore Olson argued the cause for With petitioners. Perry, Tayrani, him on the briefs were Mark A. Amir C. Guy Parsigian, Miller Getter, Kenneth Kenneth J. S. and Struve.
David C. Frederick argued the cause for respondents. Evans, Mant- on the brief were Mark L. Gerard V. him With FLeyman, Urmy, ese, Rossman, Jr., Mark Thomas V. Todd S. Lanham, and Samuel Jr. W.
Douglas Hallward-Driemeier cause for the argued United States as amicus curiae of support respondents. Deputy Garre, brief were Solicitor General him on the With Attorney General Kneedler, Solicitor General Assistant Klein* Hertz, Stern, Mark B. and Alisa B. the Chamber of amici curiae urging of reversal were filed for *Briefs Lamken, Allyson by Jeffrey A. of of America Commerce the United States Sarwal; Ho, Conrad,
N. Robin S. and Amar D. for the National Associa- Amundson, III, A. Jan S. Peter Barile by tion of Manufacturers Quentin John Inc., by Advisory Council, Riegel; for the Product Liability Thomas; Popeo by Daniel J. M. Washington Legal Foundation and for the Samp. and Richard A. for the State of amici curiae urging of affirmance were filed Briefs Stern, Rowe, Paul Maine, G. Steven by Attorney of
Maine et al. General of the Court. delivered the opinion Justice Stevens who have smoked years “light” for over Respondents, USA, manufactured Morris by Philip cigarettes petitioners, claim that Inc., Inc., Altria Group, its parent company, Act Trade Practices violated Maine Unfair petitioners Conti, Chief, Linda Deputy General, Divi- Attorney Consumer Protection Silsby, Carolyn sion, Attorneys Gen- Willis Assistant Jennifer Niekles, Peter eral, of of Co- J. by Attorney Interim General the District lumbia, Attorneys respective their States as General for Troy Colberg Alaska, Terry Goddard Alabama, King J. Talis follows: of of Jr., Brown, Edmund G. Arizona, Arkansas, of Dustin McDaniel Cali- Connecticut, John Richard Blumenthal fornia, Colorado, W.Suthers E. Joseph R. III McCollum Thurbert Delaware, Florida, Biden Bill *3 of Baker of J. G. Wasden Hawaii, Georgia, Mark Bennett of Lawrence Miller Madigan Lisa J. Idaho, Illinois, Indiana, of Steve Carter Thomas of Conway Kentucky, D. Stephen of N. of James Iowa, Six Jack Kansas, of Coakley Louisiana, Douglas F. of Caldwell of Gansler Martha Maryland, Jim Minnesota, Mississippi, of Lori Swanson of Hood Massachusetts, of Jon Montana, (Jay) Jeremiah W. Nixon of Mike McGrath of Missouri, Bruning Nebraska, Nevada, Kelly Ayotte A. Catherine Masto of Cortez of Milgram King of Gary Anne K. Hampshire, Jersey, of New New of New York, Wayne Stenehjem M. of North Mexico, Da- Andrew Cuomo New of Oklahoma, Nancy Rogers H. A. Drew kota, Ohio, Edmondson of of IV Hardy Myers Lynch Tom of Patrick C. Pennsylvania, Corbett Oregon, of Long E. Carolina, Henry D. Lawrence Island, McMaster of Rhode of South Jr., of Cooper, Greg E. of Abbott Tennessee, Robert Dakota, of South Vermont, Robert Mark H. Sorrell of Texas, Utah, L. William of Shurtleff McGraw, Jr., M. McKenna Virginia, Darrell V. Washington, of West of Salzburg J. B. Ho A. Wisconsin, for the Van lien Bruce Wyoming; and H. Smoger; Gerson Former by American et for Medical Association al. King; for Robert L. by the Federal Commission Commissioners of Trade Da- Hoke Kathleen Maryland Rights by al. Consumer Coalition et chille; C. Vla- Consortium et al. David by for the Tobacco Control Legal Brueckner, deck, Nepveu; Leslie A. M. Brandt Julie and and for Allan Hochberg. S. Peck A. by Robert Francine et al. amici curiae Briefs of for Constitutional and Administrative filed se, Young, Busby; Erin pro Ernest A. Glenn by
Law Scholars by Michael Former et al. of Trade Commission Commissioners the Federal Fried, Vergonis, S. T.Smith. Christian G. and Robert (MUTPA). Specifically,they allege petitioners’ that adver- tising fraudulently conveyed “light” message that their cigarettes tar deliver less and nicotine to consumers than regular petitioners’ despite knowledge brands that mes- sage deny asserting charge, was untrue. Petitioners factually their advertisements were accurate. The dispute merits of the are not before us because the District summary judgment petitioners Court entered favor ground respondents’ pre-empted claim state-law by Cigarette Labeling Advertising the Federal asAct, Act). (Labeling Appeals amended Act or re- Court of judgment, granted versed that and we certiorari to review holding expressly its that the Act neither nor im- pliedly pre-empts respondents’ fraud claim. We affirm.
I Respondents longtime are Maine residents and smokers Lights cigarettes, Cambridge Lights Marlboro which are diversity petitioners. Invoking juris- manufactured respondents diction the Federal Court, District filed complaint alleging petitioners deliberately deceived cigarettes “light” them about the true and harmful nature in violation MUTPA, Ann., Me. Rev. Stat. Tit. 2008).1
(Supp. Respondents petitioners claim that fraudu- lently cigarettes being “light” marketed their and contain- *4 “ ” [njicotine’ ing ‘[Lowered convey [t]ar and consumers they that deliver less tar nicotine are and and therefоre less regular cigarettes. App. harmful than 28a-29a.
1 provides, relevant, competi The MUTPA that of as methods “[u]nfair deceptive practices tion and unfair or acts or the conduct trade section, §207. or commerce that construing are declared unlawful.” guided by interpretations given by courts are to “be Federal Trade 45(a)(1) Commission and Federal Courts to Section Federal (15 45(a)(1)), Trade Act from time to Commission United States Code §207(1). time amended.” testing acknowledge pursuant Respondents to the that Cambridge that tar and nicotine Filter Method2 indicates Cambridge Lights yields Lights are lower and of Marlboro Respondents regular cigarettes. Id., at 30a. than those allege, petitioners at all relevant have known however, unconsciously compen engage in times that human smokers satory by Cambridge registered Filter Method behaviors testing negate of the tar- nicotine- the effect By reducing “light” cigarettes. Id., features of 30a-31a. fingers, lips covering filter with their or ventilation holes holding taking larger frequent puffs, more the smoke or “light” lungs longer period time, smokers of in their cigarettes unknowingly tar and nicotine as inhale as much cigarettes regular cigarettes. “Light” Ibid. do smokers increased ventilation are in fact more harmful because the design produces unique from their features results mutagenic milligram per than the that is more of tar smoke regular cigarettes. Respondents Id., smoke of at 31a-32a. by fraudulently petitioners claim that violated MUTPA by affirmatively represent concealing that information ing, through “light” tar nicotine” the use of and “lowered descriptors, cigаrettes pose fewer health that their would Id., 32a, risks. 33a. summary judgment ground on
Petitioners moved for §1334(b), expressly pre- Act, that the U. S. C. Relying empts respondents’ of action. state-law cause Cipollone Liggett Group, Inc., 505 U. S. our decisions in v. (1992), Reilly, 533 U. S. and Lorillard Tobacco Co. and nico Cambridge weighs Filter Method and measures tar puffs of two smoking machine that takes 35 milliliter
tine collected speci to a every is smoked seconds’ duration seconds until below, the Trade length. App. 294a, 668a. As discussed Federal fied butt (FTC Commission) Cambridge signaled in 1966 that Commission tar nicotine measuring acceptable Filter Method an means was publish test cigarettes, required but it never manufacturers content of results in their advertisements. *5 (2001), respondents’ the District concluded that Court pre-empted. respondents’
MUTPA claim is The court recast warning claim as a claim failure-to-warn or neutralization pre-empted charges Cipollone: peti the kind The claim “produc[ing] product tioners with it knew contained hidden apparent risks . . . not or to the claim known consumer”—a [petitioners] actually Lights that “runs to what about said they [respondents] and what claim should have said.” 436 (Me.2006). Supp. F. 2d 132, 151 And the difference between petitioners respondents what said and have what would them “ say is 'intertwined with the about concern smok ing (quoting Reilly, Id., at health.’” atS., 548). respondents’ The District Court thus concluded that requirement claim rests on a state-law based on precisely pre-empts, health of the kind that and it granted summary judgment petitioners.
Respondents appealed, Appeals and the Court of reversed. Appeals rеjected The Court of first District Court’s char- respondents’ warning acterization of claim as a neutraliza- pre-empted Cipollone. tion claim akin to the claim in (CA1 2007). F. 3d Instead, the court concluded respondents’ that claim is in claim that substance fraud alleges petitioners falsely represented cigarettes their “light” having though or even “lowered tar and nicotine” they quantities compo- deliver to smokers the same of those regular cigarettes. nents Id., as do “The fact alleged misrepresentations unaccompanied by these ad- warning ditional statements in the of a does nature warning transform the claimed failure to fraud into warn” Finding respondents’ Id., claim neutralization. 42-43. indistinguishable non-pre-empted from claim at fraud Appeals issue in that it is not Court of held expressly pre-empted. rejected petitioners’ also court argument respondents’ pre-empted impliedly claim is because their as an success on that claim would stand obsta-
76 allowing purported policy the use of
cle the of the FTC convey descriptive Cambridge Filter test terms that Method judgment Accordingly, of the Dis- it reversed the results. trict Court. expressly pre- concluding respondents’ not that claim is rejected
empted,
Appeals
the
of
considered
Court
reasoning
3d,
in a
501 F.
Fifth Circuit’s
similar case.
plain-
Circuit likened the
below,
Unlike
court
Fifth
descriptors Cipollone’s
challenge
“light”
to the
of
tiffs’
use
expressly
warning
found it
neutralization claim and thus
Corp.,
pre-empted.
Tobacco
Brown v. Brown & Williamson
(2007).
granted
petition for
3d
We
383,
479 F.
392-393
apparent conflict.
II provides the laws 2, Article of the VI, cl. Constitution supreme of the “shаll Law United States be any Thing of state in the Constitution or Laws Land;... Contrary notwithstanding.” with that Consistent long recognized that con- command, we have that state laws Maryland flict with are effect.” v. federal law “without (1981). Louisiana, 746 725, 451 U. S. inquiry scope pre-emptive into the a statute’s effect
Our Congress guided by purpose “‘[t]he the rule that is every pre-emption case.” Med the ultimate touchstone’ (1996) (quoting Lohr, Inc. 485 Retail tronic, 470, v. 518 U. S. (1963)). Congress Schermerhorn, 96, 103 v. 375 Clerks U. S. express may pre-emptive through intent a statute’s indicate language through purpose. or structure Jones its See (1977). Packing v. If federal Co., 519, Rath S. express pre-emption im clause, law contains an does mediately inquiry question because the sub end scope Congress’ displacement of law state still stance may Pre-emptive if the be inferred remains. intent also Congress scope intended federal of the statute indicates that occupy legislative an actual field, or if there is law Freightliner Corp. conflict between state and federal law. (1995). Myrick, U. S. addressing questions express implied pre- When emption, begin analysis assumption we our “with the police powers super- [are] the historic of the States not to be seded Act Federal unless was the clear mani- purpose Congress.” Corp., fest Rice v. Santa Fe Elevator (1947). assumption applies par- 331 U. S. That *7 Congress legislated ticular force when has a tradi- field tionally occupied by Lohr, 485; States. 518 U. see S., (“Because Reilly, S., also 533 at 541-542 U. ‘federal law is fiel[d] regu- [a] bar said to state action of traditional state namely, advertising, assumption ‘wor[k] lation,’ we police powers [a]re that the historic of the to be States not superseded by [is] the Federal Act unless clear and (citation omitted)). purpose Congress’” manifest Thus, pre-emption susceptible when the text of a clause is of more plausible reading, ordinarily “accept than one courts reading pre-emption.” Agro- that disfavors Bates v. Dow (2005). LLC, sciences 544 U. 431, S.
Congress Labeling response enacted the Act in 19653in to Surgeon cigarette smoking General’s determination that required every package is harmful to health. The Act cigarettes conspicuous sold in the United States contain warning, pre-empted positive and state-law enactments federally prescribed warning. that added to the 79 Stat. Congress years Labeling 283. amended the Act a few later by enacting Cigarette Smoking the Public Health Act of strengthened language 1969.4 The amendments prescribed warning, prohibited cigarette 84 Stat. ad- vertising “any sub- medium of electronic communication ject jurisdiction,” [Federal Commission] to Communications pre- They Labeling id., at 89. also broadened the Act’s 379 Stat. 282. 1970, Con 91-222, Though actually L. Stat. enacted in Pub.
gress directed that it be cited as a “1969 Act.” (plural-
emption provision. See pre-' scope (discussing ity opinion) of the difference in Acts). Labeling emption and 1969 clauses of the 1965 require to amended further Act has since been warnings explicit in their more manufacturers to include four rotating packaging on a basis.5 advertisements purpose Act The stated program comprehensive to deal Federal “to establish advertising respect cigarette labeling with with relationship health, between whereby—
“(1) ciga- mаy public adequately informed that be smoking may health inclusion be hazardous to rette ciga- package warning that effect on each of a rettes; and
“(2) economy may be commerce and the national (A) protected with the maximum extent consistent (B) impeded by policy diverse, non- this declared confusing cigarette labeling and advertis- uniform, and any relationship regulations respect ing between *8 § smoking 15 U. S. C. 1331. and health.” Stat. requirement cigarette include in manufacturers advertising warnings packaging precise man- the their by purpose. Congress the And dated furthers the Act’sfirst provisions purpose. pre-emption promote Act’s its second pre- express Labeling As the Act contains two amended, 5(a) emption provisions. protects manu- Section by prohibiting labeling laws facturers from inconsistent state relating smoking requirement to of statements additional 1334(a). § cigarette packages. 15 U. S. C. and health on 5(b), “[n]o provides that case, which is issue this Section prohibition smoking requirement and health based or imposed respect to the adver- shall be under State law with Act, 98-474, §4(a), 98 Stat. Smoking Pub. L. Comprehensive Education 1333(a). 2201,15 § S. C. U.
tising promotion any cigarettes packages of of which conformity provisions chap- are labeled in with of this 1334(b). § ter.”
Together, labeling requirement pre-emption provi- express Congress’ prescribed sions determination that the warnings necessary federal are both to and sufficient achieve purpose informing public its of health conse- quences smoking. Congress Because has decided no warning goal, additional statеment is needed to attain that may impede cigarettes by enforcing States commerce in assumption rules that are based on an that the federal warn- ings inadequate. Although purposes are both of the Act’s by prohibiting supplementing are furthered from States federally prescribed warning, neither would be served limiting authority prohibit deceptive the States’ state- cigarette advertising. acknowledge ments in Petitioners “Congress insulating compa- had no intention tobacco liability nies from for inaccurate statements the rela- about tionship between and health.” Brief for Petition- they Congress ers 28. But maintain that could not have permit intended to the enforcement of state fraud rules doing Labeling purpose because so would defeat Act’s preventing warning requirements. nonuniform state § S.U. C. 1331.6 As we observed however, urge support Congress Petitioners also us to find their claim that gave authority deceptive the FTC police exclusive health-related claims cigarette advertising they “saving what refer as the Act’s provides that, warning requirement, clause.” The from apart clause nothing in limit, restrict, expand, the Act “shall be construed or other authority wise affect the respect the Federal Trade Commission advertising to unfair or deceptive practices cigarettes.” acts or plurality 1336. A of this previously Court has read this clause to “indi *9 that Congress phrase ‘relating smoking cate] intended the to regulation health’... to narrowly, proscribe be construed so as not to the Inc., deceptive advertising.” 504, Cipollone Liggett Group, of 505 U. S. (1992). Nothing suggests Congress 528-529 meаnt the clause that to proscribe regulation deceptive advertising prac- the historic States’ falsity.” “rely only single, uniform standard:
fraud claims on a (plurality opinion). purposes fidelity Although to the Act’s does it is clear that princi- pre-emption the rules, fraud not the state demand pal question the text we decide is whether that must 1334(b) § requires that result. nevertheless
Ill phrases operative the have construed We Reilly, Cipollone, prior 505 U. S. two cases: phrase recognized the both occasions we U. S. On smoking rule the state-law on and health” modifies “based particular application of that rule. rather than a issue plurality, of Chief Jus- which consisted Rehnquist O’Connor,and White, tice and Justices Stevens, provision pre-emption amendments in the 1969 read Labeling pre-empt rules as well Act to common-law positive Blackmun, enactments. Unlike Justices Kennedy, provision plurality concluded that does Souter, preclude all claims that have some relation- not common-law smoking ship S., at To de- and health. 505 U. 521-523. pre- particular is common-law claim termine whether a duty legal plurality inquired empted, “whether damages predicate action consti- is common-law 'requirement prohibition on or based tutes advertising promotion,’ respect . . with to . . . health giving . reading.” Id., at 524. fair that clause a but narrow cooperative regulation long depended state tices. FTC has because, although the smallest administrative its one of achieve mission activity. See charged agencies, policing it an enormous amount (2004 §§1:1, Supp. Kanwit, 1:2 ed. Federal Trade Commission S. 2008). it Moreover, amended 1969 was when the Act was authority, rulemaking see 84 Stat. possessed even clear that FTC assign unlikely Congress would have intended making highly deceptive prac- overseeing exclusively task of to the FTC the substantial advertisements. tices
Applying plurality plain- standard, this held that the fraudulently cigarette tiff’s claim that manufacturers had misrepresented pre- and fact not concealed material was empted. alleged That claim a violation of the manufactur- duty duty ers’ deceive—a not smok- that is “based on” ing Respondents Id., health. at 528-529. in this case allege duty duty also a violation that of the not to deceive as duty is codified in the MUTPA. The codified in that state duty by imposed statute, like rule state common-law nothing at issue in has do with health.7
Petitioners endeavor to distance themselves from that holding by arguing respondents’ analogous claim more “warning pre-empted to the neutralization” claim to be found Cipollone. Although plain- plurality in understood the presented “theory tiff to have that claim as a of fraudulent misrepresentation,” gravamen at id., 528, the of the claim “predicated was the defendants’ failure to it warn, as was prohibition against advertising a state-law statements promotional materials that tend to minimize the health haz- smoking,” ards associated with id., at 527. Thus under- Cipollone plurality’s analysis warning stood, the neu- application tralization claim has no in this case.8 dissent, plurality his Justice Thomas reliance on the criticizes our opinion in Cipollone, post, 96-98, 103-108, 111-112, at and advocates adopting analysis by set forth Justice concur оpinion Scalia his case, post, ring in judgment part part dissenting in that 95-96, But approach rejected 109-110. Justice Scalia’s was seven Court, Cipollone Members of years and in almost 17 since was Congress nothing decided approval ap has done its indicate proach. Moreover, explain why Justice Thomas would Congress fails to produce— have approach intended the result that Justice Scalia’s would namely, permitting engage in adver manufacturers fraudulent Cipollone, nothing tising. majority As a the Court concluded in language purpose supports Act’s that result. Cipollone plurality 8 The warning further stated that the neutralization requirement “merely claim warnings was of a converse state-law advertising promotional materials,” be included in respondents’ claim is contend that Petitioners nonetheless warning pre-empted like the neutralization claim because “might impression” create a false is based on statements that *11 “inherently Brief false.” rather than statements that are alleged But extent of the falsehood for Petitioners 39. the Nothing in the Label- not nature the claim. does alter the of Cipol- opinion ing purpose plurality in text or Act’s pre-empted suggests a is turns lone that whether claim misleading way and inher- between distinction misunderstanding ently is the Petitioners’ false statements. Appeals Circuit, the Fifth same one that led the Court “light” descriptors confronted reach a a to claim, when Appeals’ in this decision result at odds with Court of Certainly, at the ex- Brown, 3d, case. See 479 F. 391-393. may plaintiff alleged a tent of the bear on whether falsehood рrove respondents’ claim, can her fraud but the merits claim are not before us. clear that aside, that erroneous distinction is set is
Once holding Cipollone our that the common-law fraud claim directly statutory pre-empted applicable not was is claim at claim in issue in this case. As was true Cipollone, respondents’ deceptive claim that the statements pur “light” and “lowered tar and induced them nicotine” petitioners’ alleges duty product chase a breach of the not .9 federally presence sure, deceive To be of the man warnings may materiality petitioners’ dated bear on the evincing plurality’s recognition warning neutralization that two Justice Thomas’ failure-to-warn claims are sides the same coin. claim, post, plurality’s criticism of treatment failure-to-warn point, no claim this is beside the as such issue litigation. observed, regarding allegations Appeals respondents’ As the Court of tar nicotine” petitioners’ “light” use of and “lowered the statements respondents support warning also claim. But did could neutralization not, they bring claim, fact does not such a and the could have nothing petitioners suggest, form substance. There is elevate over multiple recognition might the same conduct violate new proscriptions.
allegedly possibility fraudulent “but statements, does change [respondents’] case from one about the state- warnings.” ments into one about the 3d, 501 E at 44.10 Reilly Cipollone’s analy- Our decision in is consistent with Reilly regulations promulgated by sis. involved the Massa- “ attorney general chusetts ‘in order to address the incidence сigarette smoking and smokeless tobacco use children legal age prevent [and] under . . . in order to access to such ” products by underage (quot- consumers.’ atS.,U. (2000)). ing §21.01 Regs. regulations 940 Code Mass. The pertain any advertising; they did not to the content of rather, placed variety cigarette of restrictions on certain sales and point-of-sale location of outdoor and advertis- ing. attorney general promulgated those restrictions pursuant statutory authority prevent to his unfair or de- *12 (West ceptive § practices. trade Mass. Laws, 93A, Gen. ch. 1996). although attorney general’s authority But de- general deceptive practices rived from a statute like the one challenged regulations targeted in issue this case, the ad- vertising promote by that tended to tobacco use children in- prohibiting misleading stead of false or Thus, statements. “prohibition” Cipollone whereas the in was the common-law “prohibitions” Reilly targeted fraud rule, the were the regulations. Accordingly, holding Reilly reg- our that the
10Justice respondents’ Thomas that contends fraud claim must be pre-empted judgment because “[a] favor will. .. result in a ‘re [their] quirement’ petitioners that represent smoking effects of on health in particular a way in advertising promotion their of light cigarettes.” Post, at 93. He further require “respondents asserts that seek to provide warnings manufacturers compensa additional about prohibit tory behavior, or to selling products them from with the these Post, ‘light’ descriptors.” or ‘low-tar’ at 109-110. But this mischaracter izes the respondents respondents trial, relief If prevail petition seek. prohibited ers will be selling “light” only ciga from as or “low tar” those actually rettes that light actually are not not tar and do deliver less nicotine. Barring intervening regulation, petitioners federal would re main free to make “light” nonfraudulent use of the and “low-tar” descriptors. argu- provides support pre-empted no for an
ulations were practices general prohibition deceptive is ment that deception by specific kind of on” the harm caused “based given applied prohibition is in a case. to which the appeal petitioners argue, It that the of their true, is relationship smoking advertising on the between is based expressly repu although respondents And have health. damages personal injuries, App. for see diated claim injuries likely encompass harms to health 26a, their actual monetary injuries they allege. argu These as well as the unavailing, the text of however, ments are because smoking health. does not refer to related to harms only prohibitions— pre-empts requirements it Rather, and health. e., i. rules—that are based on says “smoking” nothing either “health.” about MUTPA duty general It is a rule that creates to deceive and Reilly.11 regulations unlike the at issue in therefore reject argue that should Petitioners in the alternative we by express pre-emption framework established Reilly. Cipollone plurality the Court and relied separate doing, they the reasons set forth so invoke (who especially opinions criticized Justice Blackmun pre- plurality’s holding the failure-to-warn claim was (who empted) argued that the fraud and Justiсe Scalia again pre-empted). acknowl- claim be we also should While may edge analysis “theoretical of these claims lack our elegance,” persuaded represents “a fair remain we *13 Cipollone, purpose.” understanding congressional 505 of opinion). (plurality S., 529-530, n. 27 U. at 11 nor MUTPA, legislature implementing neither the state attorney special guidelines rules or general state has enacted a set of Cipollone, it was the targeted cigarette advertising. As we noted at requirements than the warning rather threatened enactment new state prac against deceptive pre-existing general prohibitions enforcement 515, S., congressional in 1969. 505 U. prompted tices that action n. 11.
85 opinion plurality Petitioners also contend that the is incon- sistent Airlines, with our decisions in American Inc. v. (1995), Riegel Wolens, 513 U. Medtronic, Inc., S. 219 v. (2008). inapposite— 552 cases, U. S. 312 Both are however, pre-emption provision the first because it involved a much broader than the Act’s, and the because it second precisely type Congress involved rule that state had pre-empt. intended to pre-emptive
At issue in Wolens was the effect Deregulation (ADA), Airline Act of 1978 49 S.U. C. 1305(a)(1) (1988 § App. ed.), prohibits from which States enacting any enforcing “relating routes, or or rates, law to any plaintiffs services of air carrier.” The case sought bring to a claim under the Illinois Consumer Fraud Deceptive Comp. Stat., Business Practices 111. Act, (West 1992). 815, ch. Our conclusionthat the state-law pre-empted claim was turned on the of the unusual breadth pre-emption provision. previously ADA’s had We held mеaning key phrase pre-emption pro- in the ADA’s “ ” ‘relating vision, rates, routes, services,’ is a broad one. Inc., Morales v. Trans Airlines, World U. S. added). (1992) (emphasis Relying precedents 383-384 construing pre-emptive phrase effect of the same in the Employee Security Retirement Act of Income §1144(a), “‘relating phrase U. S. C. we that the concluded ” Congress’ pre-empt large to’ indicates intent to area of purpose deregulating state air- law further its industry. Unquestionably, line S., at 383-384.12 U. Morales point our 12 Petitioners also evidence that decision Cipollone predated But Morales wrong. was and it is than American Air easily distinguishable event even more from this case lines, Wolens, (1995). Inc. At issue Morales U. were S. 219 guidelines regarding advertising of airline fare the form and substance Attorneys implemented by give General the National Association practices Like the deceptive content to state rules. Reilly, industry-specific direc regulations guidelines at issue in targeted subject ex- tives that matter made off-limits the ADA’s *14 Labeling “relating scope phrase than to” has a broader health; Act’s to rules “based on” reference synonymous “having “relating connec- to” a whereas is direct id., tion “based on” describes a more with,” relationship, Burr, v. 551U. see Ins. Co. America S. Safeco (2007) (“In phrase indi- on’ talk, common ‘based necessary logi- relationship thus a cates a causal but-for condition”). cal similarly Riegel misplaced. The
Petitioners’ reliance on bring design, Riegel sought plaintiffs man- common-law against ufacturing, labeling the manufac- defect claims question faulty presented The cаse turer catheter. expressly pre-empted whether those claims were (MDA), 21 S. of 1976 U. C. Medical Device Amendments pre-emption provides seq. et The clause 360c MDA’s respect “‘may in effect with no establish or continue State relating safety requirement’ or effec- to a device . . . re- from, to, or in federal tiveness that is different addition Riegel, (quoting quirements.” 21 U. S. at 328 C. deleted). §360k(a);emphasis Riegel premarket
The
had received
catheter
issue
(FDA).
approval
Drug
Administration
from
Food
imposes “require-
premarket approval
We concluded
safety
ment[s]
[and]
relating
effectiveness” because
premarket approval
requires a device that has received
FDA
design, manufacturing,
labeling
no
to be made with almost
specifications
approved application.
from the
in its
deviations
plaintiffs’
liability
products
fell within the core
claims
sought
provision
they
pre-emption
of MDA’s
because
requirements
aspects
impose
precisely
on
different
those
Cipol-
approved.
that the FDA had
Unlike
device
plaintiff’s
fraud
which fell outside
claim,
lone
impose
pre-emptive
because it
not seek to
Act’s
reach
did
Motor
Hampshire
New
See also Rowe provisions.
press pre-emption
(2008)
Assn.,
targeted ground carrier
Transp.
(holding that
In sum, now, we conclude as the did phrase smoking fairly that “the ‘based on and health’ but narrowly encompass general construed does not more duty not to make fraudulent statements.” U.
IV argument, express pre-emption As an alternative to their petitioners respondents’ impliedly pre- contend that claim is empted present proceed, if because, allowed to it would an longstanding policy According obstacle to a of the FTC. petitioners, promoted develop- FTC has for decades consumption cigarettes ment and of low tar and has encour- aged rely representations on consumers of tar and nicotine Cambridge testing content based on Filter Method in choos- ing among cigarette regulatory pol- Even if such brands. a icy provide pre-emption, petition- could basis for obstacle description regard ers’ actions in this are FTC’s any policy inaccurate. The Government itself disavows au- thorizing “light” descriptors. “low tar” Brief use for United States Amicus Curiae 16-33. following publication Surgeon
In of the General’s report industry an health, issued FTC guidance stating its view that “a factual statement of the tar milligrams) (expressed in and nicotine content main- by Cambridge cigarette,” stream smoke from a as measured testing, App. Filter violate Act. Method would not the FTC guid- clear, 478a. that the however, The .Commissionmade only and nicotine applied of tar to factual assertions anee representations made, ... yields invite “collateral and did not by implication, expressly or elimination to reduction as. year reiter- later, A FTC Id., at 479a. health hazards.” position Association to the National in a letter ated its “general explained that, as The letter Broadcasters. challenge of tar statements would rule,” Commission “they accurate to be are shown nicotine content when fully in accordance conducted tests substantiated Method].” [Cambridge Id., at 368a. Filter with the pro- guidance, providing further 1970, the FTC considered *16 required to posing manufacturers have a rule that would by Cambridge yields as measured tar and nicotine disclose leading testing. Reg. Fed. Filter Method submitting by responded a volun- cigarette manufacturers they tary nic- agreement tar and would disclose under which advertising, App. 899a-900a, and in their otine content (1971). Reg. rulemaking, suspended its 36 Fed. FTC petitioners that “the FTC assert events, Based on these companies required tar and nicotine to disclose has tobacco using government-mandated yields cigarette advertising descrip- testing methodology them to use and has authorized results.” to those numerical test tors as shorthand references forego- (emphasis original). As Brief for Petitioners history ing in fact never re- has shows, however, FTC cigarette quired tar and nicotine disclose manufacturers yields yields, representations those nor has it condoned descriptors. “light” through “low tar” the use of peti Subsequent actions further undermine Commission agreed companies re to tioners’ claim. After the tobacco Cambridge by yields port as measured tar and nicotine compa cigarette police to Method, Filter continued FTC misleading re the FTC of test results. nies’ use Barclay yields sponded findings nicotine that tar and to through Cambridge cigarettes test Filter Method obtained cigarettes ing deceptive in fact delivered because disproportionately cigarettes more tar than other to smokers ratings. Cambridge similar Method Filter Fed. Reg. manufactur 15954. And the FTC found that a representation by get er’s “that will less tar consumers cigarettes packs ten of Carlton brand than smok ing deceptive single pack brands” other was even though Cambridge it was based on the results of Filter testing. Co., Method In re American Tobacco 119 F. T. C. recognition 3, 4. The conclusion based on FTC’s was its necessarily “[i]n that, truth in fact, consumers will not smoking.” get compensatory less tar” due “such behavior as d.13 Ibi history contrary petitioners’ sugges-
This shows that, longstanding policy authorizing tion, the FTC has no collat- representations Cambridge eral based on Filter Method test Rather, results. inform FTC has endeavored to con- comparative sumers of the tar and nicotine content of differ- prevented ent brands and has in some instances misleading representations Cambridge Filter Method test require petitioners results. The FTC’s failure correct allegedly misleading “light” descriptors their use is not contrary; agency evidence to the of a nonenforcement fed- *17 action, In a charged different a cigarette the FTC manufacturer with violating by the misleadingly advertising FTC Act brands as certain “low they in tar” See In re though rating. even had a higher-than-average tar Inc., Brands, (1971). Amеrican 79 F. T. C. 255 The Commission and the manufacturer a prevented entered consent that order the manufacturer making any representations they from accompanied by such unless clear conspicuous cigarettes’ a and disclosure of the tar and nicotine con Id., tent as by Cambridge measured the Filter Method. Petition ers offer this order consent as evidence that the FTC authorized the use “light” descriptors long they accurately tar” “low as as describe Cambridge observes, Filter Method test As the Government results. however, only enjoined the decree conduct. Brief for United States as Amicus Curiae 26. And a consent order is only binding event parties agreement. reasons, the to the For all of these the consent order respondents’ impliedly is support does not conclusion that claim pre-empted. approval. policy Cf. not the same a
eral statute is (2002) (holding Mercury Sprietsma Marine, 537 U. S. regulate propeller Guard’s decision not Coast claims).14 guards impliedly pre-empt petitioner’s tort did not regarding telling recent statements More are the FTC’s descriptors. “light” tar” the use of “low “[t]here are no official definitions observed that Commission “ “ ” ” sought ‘light’ com- and it tar,’ and ‘low for” terms guidance [is] with for official ments on whether “there need convey descriptors respect terms” and whether “the to the Reg. implied 48163. In November health claims.” 62 Fed. following public comment, the Commission notice Cambridge guidance concerning Filter rescinded its 1966 response Reg. is a Fed. 74500. The rescission Method. 73 among public com- “a health and scientific consensus sufficiеntly Cambridge munities Filter method is yields as measured flawed that statements of tar and nicotine likely help in- consumers make that method are not Id., 74503. The Commission’snotice formed decisions.” guidance proposal of its to rescind the also reiterated “only original noting guidance, of that ad- limits yields. dressed] simple factual of tar and nicotine statements express implied apply d[id] It to other conduct or they representations, concerned] tar nicotine even if yields.” Id., at 40351. industry guidances
In short, neither the handful of petitioners rely inac- nor the FTC’s consent orders on which justi- regard “light” descriptors arguably even tion pre-emption deceptive practices rules like fies of state the MUTPA. policy It of authorization particularly inappropriate seems to read petition part
into the inaction FTC’s inaction when that result Cambridge study showing that Filter ers’ failure to disclose results *18 tar nicotine that Method do reflect the amount of and test results id,., cigarettes actually at 8-11. “light” consumers of inhale. See V Labeling conclude, We as we did that the Act pre-empt respondents’ does not claims state-law like that are predicated duty on the not to also deceive. We hold that respect FTC’s with various decisions to statements of tar impliedly pre-empt respondents’ and nicotine content do not Respondents prove petitioners’ claim. still must that use of “light” descriptors and “lowered tar” in fact violated deceptive practices Labeling state statute, but neither the pre-emption provision Act’s nor the actions in this FTC’s prevent jury сonsidering field from that claim. Accord- ingly, judgment Appeals of the Court of is affirmed, and proceedings the case is remanded for further with consistent opinion. this
It is so ordered. Justice with whom The Thomas, Justice, Chief Jus- tice Scalia, and Justice Alito join, dissenting. appeal requires
This Court revisit its decision (1992). Cipollone Liggett Group, Inc., S. 504 As U. question that case, the before is whether us state-law claims alleging cigarette public manufacturers about misled cigarettes pre-empted by the health effects of are the Fed- Cigarette Labeling Advertising eral Act, amended Act). (Labeling Labeling requires Act or The Act specific warnings cigarette placed packag- health be on all § ing advertising, 15 S. eliminate U. C. order to confusing labeling nonuniform, “diverse, advertising regulations respect any relationship with 5(b) § § smoking end, between To health,” pre-empts any “requirement prohibition Act or imposed based on law and health . . under State . respect any ciga- advertising promotion 1334(b). § rettes.” pre-empts
Whether state common-lawclaims divided Cipollone. plurality opinion the Court in found some *19 92 depending expressly pre-empted not, on and others
claims legal duty predicate that is the whether “the requirement damages or constitutes a common-law action imposed smoking prohibition . under and health . . based on promotion.” advertising respect or with to . . State law . (internal emphasis quotation omitted; at marks 505 U. 524 added). plural- disagreed majority with A of the Court (Blackmun, ity’s duty” “predicate approach. Id., J., at 543 part, concurring judgment concurring part, and dis- in in in concurring senting part); J., id., at 552-554 (Scalia, particular, part). part dissenting judgment interpreta- recognized plurality's that Justice Scalia §5(b) pre-emption test for unworkable tion of created an Id., relationship of the statute. to the text little or no with intervening years have vindicated The 555-556. courts have assessment; the lower critical Justice Scalia’s apply- difficulty consistently expressed at the frustration ing Cipollone plurality’s Moreover, this Court’s test. pre-emption in some undermined, have recent decisions plurality’s aspects atextual of the overruled, central cases Riegel pre-emption generally, approach express v. Med- 5(b) (2008), § Labeling of the tronic, Inc., S. 312 and to specifically, Reilly, U. S. Lorillard Tobacco Co. Act (2001). adopts today problems majority ignores these The governing methodology Cipollone plurality law. of the consequence, majority lia- concludes that state-law As a bility deceiving purchasers effects of the health about for prohibition “requirement smoking light cigarettes is not Labeling Act. and health” under based unnecessary. fidelity Cipollone unwise and is Court’s provide lower courts instead The Court should interpret- goals by Congress’ stated clear test advances 5(b) “imposes § ing expressly pre-empt an claim smoking upon obligation health.” the effect of because of ... J.). (opinion supra, Scalia, Respondents’ lawsuit under the Maine Unfair Trade Prac- (MUTPA), § (Supp. tices Act Ann., Me. Rev. Stat. Tit. 2008), expressly pre-empted under premised allegation Act. The civil action is on the that the respondents believing manufacturers misled into smoking light cigarettes would be healthier them *20 smoking regular cigarettes. judgmеnt respond- than A “requirement” petition- ents’ favor will thus a result in represent smoking particular ers the effects on health in a way advertising promotion light cigarettes. in their liability premised thereby Because in this case is ef- on the smoking respondents’ fect of on I health, would hold that §5(b) expressly pre-empted by state-law claims are of the Labeling respectfully I Act. dissent.
I spouse brought In a smoker and her state warranty, common-law for fraud, claims breach of and failure against cigarette alleged to warn manufacturers for their adequately smoking. failure to disclose the health risks of cigarette at 509. As here, the manufacturer as- §5(b) pre-empted by serted that the claims were the Labeling Act. deciding agree the case, Court could not on
meaning Labeling express pre-emption provi- Act’s produced separate opinions, sion. It three none of which majority Relying reflected the views a of Justices. heav- ily “presumption against pre-emption police on a of state power regulations,” plurality opinion id., at a 518, Jus- reading” settled on a “narrow tice Stevens 5(b)’s claim-by- pre-emptive Act that tested effect a under approach, approach id., claim at each 524. This considered duty predicated claim a state-law and asked whether it is “on ” smoking at Id., id., ‘based on at see also 528; health.’ pre-empted. 524. If so, Id., 524, If, the claim is at obliga- general predicated aon “more the claim is however, may proceed. Id., 528-529. law, state it tion” under Applying “theoretical ele- lacked a test that concеded plurality gance,” the failure- held that id., n. pre-empted “to the extent that those to-warn claims were advertising rel[ied] in . . . on or inclusions claims omissions cigarettes. promotions” The same was Id., at 531. ciga- alleged that the claims, which true for one of the fraud advertising to neutralize their rette manufacturers had used federally warning required Id., at 527-528. labels. “predicated plurality that these claims determined prohibition against . . that tend to statements . state-law smoking.” Id., hazards associated minimize health according plurality, state-law these at 527. Thus, recovery theory sought under the claims duty or health. based on manufacturer breached plurality claim, which other fraud found that the But alleged misrepresentation fact, a material *21 or concealment of general pre-empted it on a more not because was based was duty obligation: Id., at not to state-law “the deceive.” 528-529. departed writing Justices, for three Blackmun,
Justice question plurality whether the from the on the antecedent damages Labeling pre-empted claims Act state common-law (opinion, joined by Id., at and all. at 535-542 Kennedy concurring judgment concurring part, in in JJ., in Souter, phrase part, dissenting part). in He concluded that and “ ” 5(b) § only “positive enactments law’ in referred to ‘State regulations.” Id., at 535. But Justice such as statutes specifically if state common-law that even Blackmun noted scope he could Act, claims within the claim-by-claim approach join plurality’s he because many plurality’s “perceive[d] principled for no basis among Id., claims.” the common-law asserted distinctions Congress could not Blackmun wrote 543. Justice hodgepodge a of allowed to create such have “intended provi- pre-emption disallowed claims when it amended the “difficulty in 1970,” sion lamented lower courts attempting implement” plural- w[ould] encounter to ity’s Id., at test. 543-544. writing for Justices, two also faulted Scalia,
Justice plurality claim-by-claim approach. Id., for its at 544-556 (opinion, joined by concurring judgment J., Thomas, part part). Although dissenting agreed he with the “ ” 5(b) plurality § phrase encompassed that the ‘State law’ regu- state claims well common-law as state statutes and objected plu- id., at lations, 548-549, Justice to Scalia rality’s presumption against pre-emption invocation §5(b), narrowly interpret id., 545-547. Because Con- gress expressed pre-empt had its intent to state law §5(b), enacting “responsibility apply [was] the Court’s ordinary statutory principles the text Id., construction.” By employing “newly at 545.1 its crafted doctrine narrow plurality construction,” wrote, arrived Justice Scalia 5(b) § cramped at a and unnatural construction of that failed statutory give effect to the Id., text. at 544-548. “ordinary Applying principles” statutory construction, proper id., at 548, Justice determined test Scalia pre-emption for of state-law under was far claims less complicated plurality’s claim-by-claim approach. than the explained, “[o]nce he As one is forced to select consistent evaluating methodology given legal duty whether a health,’ ‘based on that the becomes obvious methodology upon must focus not the ultimate source of the duty upon proximatе application.” Id., . . its at 553. . but *22 a plurality announcing
1 Justice Scalia criticized the for new rule also express pre-emption that the eliminates con enactment of an clause implied cre pre-emption. explained sideration of He this new rule because, presumption against pre ated mischief when combined with the heavy Congress it emption, placed it a burden of exactitude on when S.,U. at say pre-emption. about See anything wishes 547-548. “proximate application” focuses not on therefore, test,
This duty by plaintiff, on the effect but invoked the the state-law e., the conduct—i. the manufacturer’s of the suit on imposed under “requirement” “prohibition” that would be duty, simply, if, “whatever source of law. Put state imposes obligation [the claim] of the effect because an ... pre-empted. upon see also Id., 554; it health,” is (“The setting pre-emption be id., should for this test practically practical compulsion, e., the law i. whether one of engage compels behavior Con- the manufacturers directly”). prescribing gress from has barred the States concern Justice Blackmun’s also seconded Scalia Justice plurality’s find the distinctions that the lower courts would incapable materially claims to be between identical state-law questions disposition application: than “A that raises more country at 556. Id., it not well.” answers does serve II Cipollone years confront to resolve later, we must Sixteen respondents’ question presented in this case: whether marketing under for fraudulent class-action claims §by pre-empted The Act. MUTPA are per- “remain[s] Cipollone majority adheres to because §5(b) plurality’s was suaded” that construction disagree. I Ante, at The Court should dis- “‘fair.’” predicate-duty Cipollone plurality’s card ill-conceived approach replace it far more with Justice Scalia’s “proximate application” textually test. workable sound plurality majority Cipollone does assert binding opinion precedent, rightly is so. Because represent major- “plurality opinion did not the views of ... reasoning.” ity are not its CTS Court, we bound (1987) Corp. Corp. Dynamics America, 481 S. v. U. (footnote omitted). “point Cipollone of refer- most, At Brown, S. ence further discussion.” Texas (1983) plurality opin- (plurality opinion). But even if the
97 beyond persuasive ion had some force value, its mere it nev- ertheless should be abandoned. It is it unworkable; has been Court; overtaken more recent decisions of this reading it cannot be reconciled a commonsense 5(b). text of
A predicted by majority Cipollone, As of the Justices in plurality opinion’s claim-by-claim approach proved has unworkable the lower federal courts and state courts. properly The District Court this case observed that “courts remain divided about what the decision means and apply “Cipollone’s though how to it” and that distinctions, theory, defy application.” Supp. clear in clear 132, 436 F. 2d (Me. 2006). expressed 142 Other courts have similar frus Cipollone g., tration with the See, e. framework. Glassner (CA6 2000) Reynolds v. R. Co., 343, J. Tobacco 223 3d 348 F. (“Applying plurality opinion Cipollone to the Com plaint present task”); easy in the case is no Huddleston v. (ND Reynolds Supp. R. J. Co., 1370, Tobаcco 66 F. 2d 1380 1999) (“It say Ga. would be an understatement apply plurality opinion Cipollone difficult to Complaint impossibility”); Amended in this It is an case. Welding Liability Litigation, In re Fume 364 Prods. (ND 2005) (“[I]n Supp. F. 669, 681, 2d 13n. Ohio Supreme opin plurality Court. . . delivered a fractured easy comprehend”); Whiteley Philip ion that is not Mor App. Rptr. ris, Inc., 117 635, 669-670, 11 807, Cal. 4th Cal. 3d (2004) (“[Cipollone is] 835-836 ‘difficult’... due to the inher case”); Mangini ent contradiction at the core of the v. R. J. (Cal. Reynolds Rptr. App. Co., Tobacco 2d Cal. 1993) (officially depublished) bright (“Cipollone draws no easy application”), lines amenable to 4th aff’d, Cal. (1994). 875 2dP. interpretative should retain test that has Court an
proved incapable implementation. “[T]he mischievous consequences litigants perpetua- from the and courts alike *24 great.” v. & Co. rule are too
tion an unworkable Swift (1965); Federal Election 111, 116 Wickham, 382 U. S. Right 449, U. S. 501 Inc., Wisconsin Life, Comm’n v. (2007) concurring judg concurring part and in J., (Scalia, ment) (“Stare carry weight little when considerations decisis ‘governing decisio[n]’has an ‘unwork created an erroneous regime” (quoting Payne legal Tennessee, 501 U. S. v. able’ (1991))). courts, owe far more to the lower 808, We litigants, guidance, depend who and to which this Court’s interpretation of must their actions to the Court’s conform pre-emption Cipollone plurality’s for law. The test federal 5(b) § be abandoned for this reason under should alone.
B years Cipollone decided, was Furthermore, in the since approach express pre- this has altered its doctrinal Court justified emption. plurality Cipollone it what described 5(b) § [injelegance” its as “theoretical construction of against pre-emption, relying presumption which, on the required argued, “fair,” construction of the narrow, but (ma- g., id., at 530, See, e. statute. 505 U. n. (“This jority presumption appropri- opinion) reinforces the §5”); (plurality reading at 523 id., of a narrow ateness (“[W]e narrowly precise opinion) construe the lan- must. . . (§ 5(b)”); guage given “a id., at 524 must be fair but (“[W]e reading”); phrase id., at 529 conclude that the narrow narrowly fairly but construed ‘based on and health’ general duty encompass make not to does not more statements”). ex- course, Of fraudulent Scalia Justice nothing imposing plained, about an artifi- there was “fair” cially pre-emption Act’s narrow on the construction concurring judgment (opinion provision. id., See part) presumption part dissenting (explaining pre-emption evi- against “dissolves once there is conclusive express pre-empt words of the stat- intent in the dence of itself”). ute
Since
presumption
the Court’s reliance on the
against pre-emption
express pre-emption
has waned
example,
context.
unanimously
ex
Court
plained
statutory
that the “task of
must in the
construction
plain wording
[express pre
first instance focus on the
emption]
necessarily
clause, which
contains the best evidence
Congress’ pre-emptive
Sprietsma Mercury
intent.”
(internal quotation
Marine,
62-63
S.
marks omit
ted).
referring
presumption against pre
Without
emption,
Safety
the Court
decided that
Federal Boat
Act
express pre-emption provision
pre-empt
of 1971’s
did not
state-law
Id.,
claims.
at 62-64. Most other decisions since
*25
Cipollone
invoking
presumption
also have refrained from
the
express pre-emption.
g.,
in the context of
See, e. Rowe v.
Hampshire
(2008);
Transp.
New
Assn.,
Motor
The Court has the dur- invoked ing majority this ante, timeframe. As the at Med- notes, (1996), applied pre- tronic, Lohr, Inc. v. 518 U. 470 the S. sumption against pre-emption deciding in that the federal manufacturing labeling requirements the De- of Medical (MDA) pre-empt vice of Amendments 1976 did not state Cipollone common-law at Id., claims. 500-501. Like be- produced featuring fore it, Lohr a fractured three decision opinions. J.); (opinion S., id., 518 U. at 474 at Stevens, concurring part concurring judg- 503 J., in in (Breyer, ment); (O’Connor, concurring part id., J., at 509 in dissenting part). approach And, in like Lohr’s express juris- pre-emption predates the Court’s recent prudence year topic. re- fact, on the this last Court pre-emption provision C. MDA, visited U. S. §360k(a)(l), any presumption against employ did not pre-emption. Riegel, at 101-102.2 552 U. 312. infra, S. See revisiting Reilly, recently, in 533 U. S. case
More
briefly
§
meaning
Act,
Court
rely
presumption,
on it to reach its
to the
but did
alluded
the Court’s
id.,
541-542,
Indeed,
at
546-551.
decision. See
presumption
Reilly
cursory
in
in
stands
treatment of the
reversed;
the First Circuit decision
stark contrast to
pre
heavily
the “full force” of
relied
First Circuit
regulations
sumption
at
were not
that the
issue
determine
Reilly,
Cigar Corp.
pre-empted.
v.
See Consolidated
(2000).
overturning
judg
in
Court,
This
30, 38-41
F. 3d
employ
presumption in
its construction
ment, declined to
5(b).
Reilly,
at 546-551.
See
Ste
Justice
highlighted
very point
arguing
if
dissent,
in
this
vens
faithfully applied,
presumption
had
the result would
been
concurring
(opinion
Id.,
have been different.
at 591-593
dissenting
part).
part, concurring
judgment
part,
Agrosciences
majority also
on Bates Dow
relies
(2005),
presumption
again
was
LLC, 544 U. 431
where the
S.
only
Reilly,
presumption
mentioned, but
in dicta. As
did
construction of the statute
issue.
not drive the Court’s
presumption
just
(explaining
meant
that the
S.,U.
holding
pre-emption
no
have
the same
that the
would
been
*26
2
Inc.,
(1992),
Liggett Group,
Also,
the
Cipollone
in
This was not accidental. The focused dissent on the presumption Court’s refusal invoke the order to save pre-emption. the state-law claims from 334- J.). (opinion The dissent was adamant Ginsbtjrg, containing preemption “[f]ederal laws clause do not automatically presumption against preemption.” escape the (“Where preemption id., Id., at at 335 the text of a clause 334; open plausible ordinarily reading, to more than one courts pre-emption’” (quoting ‘accept reading that disfavors *27 449)). presumption, supra, In with the accordance Bates, at re- claims under found the state-law would have the dissent pre- express beyond of the MDA’s fall the reach view to emption provision. id., 338, also at 334-335; at see 552 U. majority’s (rejecting the construction n. 8; id., n. §360h(d) [is] preemption presumption against “the because clause”). construing preemption Given operative even in against presumption of the call for the use the dissent’s clear it neces- pre-emption, not to invoke was the Court’s decision presumption sarily rejection in constru- for the role ing the statute. presumption the to invoke also declined Stevens
Justice part (opinion concurring opinion. in Id., his at 330-333 in “significance concurring judgment). view, his the in In fully ap- [MDA] provision pre-emption in was not many years preciated there- and, it enacted” until after was objective general cover “a whose text and fore, is statute by territory actually Id., authors.” its envisioned Riegel opinion in But 330-331. Stevens’ Justice —unlike plurality opinion Cipollone, majority opinion here, pre- dissenting opinion Riegel not invoke the —did per- sumption to meet the the text of the statute bend Congress. purpose Instead, ceived Justice Stevens “ ultimately provisions correctly ‘it of our found by legislators principal than concerns of our laws rather ” (quoting governed.’ S., at 331 Oncale we are which (1998)). Services, Inc., 523 U. S. v. Sundowner Offshore invoking Riegel, authority light there is no pre-emption against pre-emption express presumption majority to revive the here thus turns to Lohr cases. The reading justify presumption its turn, restrictive and, express pre-emption provision. But, Act’s willing longer Riegel plainly to unrea- is no shows, Court sonably pre-emptive interpret expressly federal laws ” “ ‘congressional purpose,’ ante, at because 84, or name of traditionally occupied “Congress legislated in a field has *28 States,” ante, at 77. The text of the statute must control.
Riegel Cipollone also undermined in an more even funda- conclusively way: mental It decided that common-lawcause “ ” imposes may ‘requirement]’ of action a state-law be (“Absent pre-empted by S., federal law. 552 U. at 324-325 ‘requirements’ other indication, reference in- to State’s its Indeed, cludes common-law duties. . . one would think . juries applied by negligence tort law, under a or strict- liability deserving preservation reg- [than is standard, less of ulatory legislation]”). contrary interpre- Justice Blackmun’s § Labeling tation of of the Act in S., 505 U. (opinion concurring part, concurring judgment 538-539 in part, dissenting part), provided which the votes necessary judgment, longer for the thus is no tenable. light Riegel’s rejection presumption against pre- of of the emption by plurality, on relied as well definition “requirements” opinion, relied on in Justice Blackmun’s Cipollone’s approach express pre-emption nothing to more than “a remnant of abandoned doctrine.” Planned Parent- (1992). Casey, hood Southeastern Pa. v. 505 U. S. C §5(b) Cipollone plurality’s reading Labeling by Act was further undermined this Court’s decision Reilly, regula- 533 U. There, S. Court confronted imposed general by attorney tions on the Massachusetts advertising pursuant location of tobacco Common- practices Id., wealth’s unfair trade statute. 533-536. they applied regulations The Court found the the extent —to cigarettes expressly pre-empted although because, Mas- — applicable “generally sachusetts remained free enact zon- ing requirements imposition “special or restrictions,” its prohibitions respect and health’ ‘with ‘based advertising promotion’ cigarettes” fell within the 5(b)’s sweep. pre-emptive Id., ambit of at 551. plurality- ignore
Reilly Cipollone. It cited did history extensively opinion the basic in its discussion But ana- S., Act. 533U. at 540-546. text of regulations lyzing enacted the Massachusetts whether attorney general expressly pre-empted, was the Court Cipollone. Unlike the about at 546-551. silent question purposes Court, District which saw “the central *29 regulations predi- create[d] pre-emption [as] a whether the smoking legal duty id., at health,” and cate based on regulations under the examination of the substantive Court’s 5(b) plurality’s “predi- § Cipollone included no mention the duty” the S., Instead, at cate test. See 533 U. 546-551. Attorney disagreed con- “the narrow Court with General’s ” “ smoking and health’ struction” of the statute’s ‘based on regulations pre- language, the were concluded that and they by” empted “intertwined because were “motivated and Id., at with” the and health. concerns about 547-548.
Reilly, Cipollone therefore, with the cannot be reconciled § plurality’s interpretation The Act. implement regulations Reilly a were at issue in enacted to duty against imposing a unfair Massachusetts state law duty deceptive practices predicate same asserted trade —the at under the in this case. 533 U. MUTPA duty Reilly general than in no less stаte-law issue was duty fraud in this or the state-law state-law issue case Cipollone. Compare Laws, in Mass. Gen. claims confronted 1996) 2(a) (West (“Unfair § competition 93A, ch. methods of deceptive practices in or the conduct and unfair or acts unlawful”), any hereby trade or commerce are declared 2008) (“Unfair §207 (Supp. meth- Ann., Me. Rev. Stat. Tit. practices competition deceptive or ods of unfair or acts any unlaw- in trade or commerce are declared the conduct of ful”), “pred- Cipollone, supra, (explaining that the at 528 misrepresentation plaintiff’s claim icate” of the fraudulent duty to make of mate- was “a state-law false statements facts”)- application rial fact or to conceal such Faithful Cipollone plurality opinion, therefore, have re- would quired Reilly regulations. uphold in Court In- argued deed, Justice Stevens as much in his dissent. (opinion concurring part, concurring judg- at S.,U. part, dissenting part) “[n]ary (noting ment in Cipollone opinions supports word in of the three interpreted regu- pre-empt thesis that 5 should be state signs advertising cigarettes”). lation of the location of yet, today majority Reilly Cipol- And finds that perfectly compatible. although lone are It contends that, regulations question Reilly general from “derived deceptive practices statute like one case,” at issue in this they pre-empted they “targeted advertising because promote tended tobacco use children instead of prohibiting misleading Ante, false at 83. statements.” According majority, legal duty contrasts with the regulations says “[t]he nothing here, either MUTPA about ‘smoking’ or Ante, ante, ‘health.’” at 84; see also at 81. *30 Cipollone plurality expressly rejected any But the distinc- targeted regulations Reilly tion between in like those and general imposed by duties S., common law. 505 U. at general underlying fact, 522. In duties the failure-to- warning-neutralization Cipollone warn and in claims —which plurality pre-empted say nothing found to be about — smoking Id., and 524; id., health. at see at also (Scalia, concurring judgment part dissenting part) J., in (noting duty dangers product’s that the to warn about a was “specifically eye ‘smoking crafted with an toward health’”).
Accordingly, Reilly establishing is better understood as general duty impose requirements prohibi- that even a can or smoking Reilly tions on based and health. weakened the Cipollone “predicate duty” approach plurality’s force of the 5(b) § pre-emptive effect of its con- and cast doubt on tinuing utility.
D approach Finally, Cipollone plurality’s should be dis- approach unpersua- “predicate its carded because duty” warning- considering the initial matter. sive as an plurality example, Cipollone claim, neutralization prohibi- predicated aon state-law that the claim is asserted minimizing against risks associated the health tion today smoking. reaffirms this at Court (describing Ante, 81; ante, also at 84 view. at see smoking expressly pre-empting are ... based “rules health”). liability including every products action, But products. applies generally to all action, failure-to-warn a J.). (opinion of Cipollone, S., U. at 553 See Scalia, “duty” claim in a failure-to-warn or “rule” involved Thus, the specific ais common- аnd health than is no more “duty” to use or “rule” not fraud claim on the law based only misleading practices. deceptive for the Yet trade ignore Cipollone plurality con- content to latter was shifting level text in which the claim is asserted. This original logical generality in the as a weakness was identified majority id., Cipollone plurality Court, decision (Blackmun, concurring judg- concurring part, J., at 543 (opinion dissenting part); part, id., at 553-554 ment in today. J.), unconvincing equally and it remains Scalia, unsurprising that the Court’s defense It is therefore confusing plurality’s to one sentence is confined test (“While acknowledge again at we ante, footnote. See may analysis ele- lack Theoretical claims that our these represents under- gance,’ persuaded ‘a fair that it we remain (quoting standing congressional purpose’” majority 27)); supra, n. 7. The 529-530, ante, n. *31 explain why approach argues to Con- this “fails instead engage permiftj cigarette gress to manufacturers . . would . explanation advertising.” But no Ibid. in fraudulent Congress pre- necessary; speaks has for itself. the text impose “requirement[s] empted only that would those claims smoking C. health.” 15 U. S. prohibition^] and based falsely 1334(b). § cigarette manufacturers if Thus, products or “the official “American-made,” as their advertise arising Major League claims cigarette Baseball,” state-law pre-empted. wrongful be would not behavior from that arguments, majority’s policy contrary to the Furthermore, statutory language not au- application does faithful smoking respect advertising and with thorize fraudulent ciga- misleading promotional Any statements heаlth.3 oversight regulatory subject under to federal rettes remain question § thus Labeling The relevant Act. See selling prohibited as from “petitioners will be is not whether actually only cigarettes not that are ‘light’ tar’ those or ‘low actually and nicotine.” light less tar deliver do not Labeling is whether the issue Rather, Ante, 83, n. 10. state-by- juries regulators on a decide, Act allows descriptors light petitioners’ and low-tar whether basis, state §5(b) charged whether fraudulent, or instead were in fact comprehensive reaching a with the Federal Government question. judgment respect to this with Under Congress standard. a uniform federal chose comprehensive “establish[ed] Fed- Labeling Congress Act, labeling Program and advertis- to deal with eral § national ing,” and the that “commerce so U. S. C. impeded [be] nonuniform, economy may diverse, . . . advertising regulations labeling confusing cigarette relationship any respect between 1331(2)(B).4 interpreta- majority’s distorted The health,” easily be leveled just as could majority’s policy-based attack The pre-empts failure-to- Labeling Act that the own determination against its contend that or law to in fact just there is no basis claims. But warn without products marketing of hazardous encourages Labeling Act ante, to contend 81-82, is no basis n. there labels, warning adequate advertising. fraudulent Labeling permits Act that the text relatively enforcement constrained majority contends (FTC) undermines in 1970 Trade Commission power of the Federal States from prevent Act to Congress intended argument
108 congressional purpose, express this tion of defeats deceptive-practices оpening an untold number of the door to country. question mar- whether lawsuits across the light “‘misrepresentative’” keting light cigarette in of a is certainly compensatory be answered “would almost behavior supra, differently at 553 from State to State.” dissenting judgment part concurring J., (Scalia, imposi- inevitably part). result in the nonuniform This will ciga- light liability marketing low-tar and/or tion of for the §5(b) Congress precise problem intended rettes —the remedy. majority’s approach, light flaws in the of these serious binding prece- Cipollone plurality opinion if even precedent allow our “should not hesitate to dent, Court Congress yield meaning an Act of when to the true ” ‘badly statutory precedent ‘unworkable’or reasoned.’ our (2005) (Thomas, J., dis- Martinez, 402 Clark v. U. S. (1994) senting) (quoting 874, 936 Hall, Holder v. 512 U. S. Payne, quoting concurring judgment), in turn J., (Thomas, 827). “confusion fol- Where, here, there is lowing splintered a reason for reex- decision,” that “is itself amining States, 511 U. S. Nichols v. United decision.” (1994). has failed 738, a decision of this Court When interpret “place properly on statute, we should Congress own error.” of the Court’s shoulders of burden (1946).5 69-70 States, Girouard v. United U. S. Ante, advertising marketing cigarettes. regulating deceptive 79-80, majority’s perception of the unwilling rely n. 6. I on the am purpose power ignore Congress’ FTC in 1970 to stated relative meaning express the Act’s enacting plain Act and the pre-emption provision. conspicu in its amicus brief and at oral States, argument, The United Cipollone ously express pre-emption or defend declined to address as Amicus Curiae 14- opinion’s reasoning. See Brief for United States an Instead, only question implied pre-emptiоn, it addressed question express my I resolution of the issue do not reach because pre-emption.
III Applying proper jury e., test —i. whether a verdict on *33 respondents’ “imposte] obligation” claims would an on the. cigarette smoking manufacturer “because of the effect of upon (opinion health,” atS.,U. of Scalia, J.), respondents’ expressly pre-empted state-law claims are §by Labeling Respondents, longtime Act. smok- Lights, they ers of Marlboro claim that have an in- suffered jury petitioners’ as a result of decision to advertise these cigarettes “light” prod- as “low-tar and/or and low-nicotine Supp. They ucts.” See 436 2d, F. at 144-145. claim that petitioners cigarettes “light” marketed their as “low- and/or products” despite knowledge tar light- and low-nicotine that cigarette engage compensatory smokers would behavior causing them to inhale at least as much tar nicotine regular cigarettes. Respondents smokers of Ibid. thus al- lege they thinking they gain- were misled into ing advantage by smoking light cigarettes, a health ibid., petitioners’ decep- and, result, as a conduct was an “unfair or ac[t] practic[e]” tive or MUTPA, under the Me. Rev. Stat. Supp. Ann., Tit. 5, §207; 436 F. 2d, Respondents’ impose liability petitioners claims seek to smoking light cigarettes because of the effect that had on alleged misrepresentation their health. The here—that “light” cigarettes healthy and “low-tar” are not as as adver- only smoking tised—is actionable because of the effect that light cigarettes respondents’ and low-tar had on health. any alleged misrepresentation Otherwise, about thе effect of cigarettes purposes on health would be immaterial for injuries the MUTPA and would not be the source of the provided impetus for the class-action lawsuit. See State (“An ¶ Weinschenk, 2005 ME act 17, 868 A. 2d practice deceptive [under MUTPA] if it is a material representation, practice likely omission, act or that is to mis- acting reasonably lead consumers under the circumstances” added)). (emphasis respondents Therefore, suit, with this provide require addi- manufacturers to seek to prohibit compensatory warnings behavior, or to tional about “light” selling products or “low- with the them from these exactly descriptors. type that is This is of lawsuit tar” pre-empted S., at Rowe, Cf. Act. shipping regulation (finding pre-emption of á Maine produces “[t]he products Maine law . . . tobacco where avoid”). sought very effect that the federal law proper pre-emption look at the test for is to Because imposes complaint if a claim factual of a to determine basis requirement health, there is no based on meaningful in this case between distinction to be drawn common-law failure-to-warn claims and claims under majority readily types of admits, As the both MUTPA.6 impose respect e., to the same conduct—i. claims duties *34 ciga- marketing “light,” the and “low-nicotine” “low-tar,” If the arise from identi- ante, 82, rettes. See at n. 9. claims impose requirement pro- cal the or conduct, the claims same respect And when that hibition with to that conduct. allegedly wrongful misleading statements conduct involves cig- smoking particular about the health effects of brand of liаbility resulting requirement prohibition arette, the or and by smoking are, definition, on and health. based majority’s warning-neutralization The claim is at observation ho case, ante, 82, 9, point. principal issue in this at n. weak misses Cipollone plurality’s logic ness is not its distinction between claims warning for fact that neutralization and claims for fraud. It is the predicate duty law, underlying Jersey’s products liability from which New derived, majority warning-neutralization now claims the claim see ante, 81-82, specific smoking than the n. was no more and health claim, predicate duty underlying see fraud J.) (“Each Scalia, relationship (opinion duty 552-553 transcends smokers; neither companies duty was cigarette between the and id., ”); specifically eye ‘smoking health’ at 543 crafted with an toward supra, Blackmun, J.); Thus, products liabil (opinion see also at 106. majority’s ity together. The re and the fraud claims must stand or fall inconsistency approach glaring logical fusal to address the of its remains Cipollone. today as was
Finally, argument, respondents argued at oral that their impose requirements smoking claims do not based on damages they health because the seek to recover are not based the effect of rather, on their re- health; spondents “asking... are for the difference in value between product [they] thought [they] buying product and a [they] actually bought.” Arg. Tr. of Oral 29. But the re- quirement prohibition by by or covered is created imposition liability particular way for here, the conduct— petitioners “light” in which marketed “low-tar,” cigarettes “low-nicotine” the manner in which re- —not spondents damages. have chosеn to measure their No mat- respondents damages they ter how characterize claim, their injured purposes have not been MUTPA, thus purchase ciga- cannot recover, unless their decision to negative rettes had a effect on their health. respondents sought injunctive
In event, “such relief as may appropriate” App. be in this case. 42a. The MUTPA specifically equitable including authorizes “other an relief, injunction,” remedy deceptive practices. unfair or trade §213(1) (2002). Me. Rev. Stat. Ann., Tit. aAnd court- injunction' prohibiting petitioners marketing crafted from light cigarettes requirement prohibition would be no less a regulations pre-empted Reilly. than the found to be remedy liability end, no matter what form the takes, the respect specific require- to the claim still creates the prohibition. liability necessarily ment or When *35 premised respondents’ on the effects of on health, §5(b) pre-empted by claims are here, the civil action is Labeling Act. IV today Cipollone plurality The Court elects convert the opinion binding notwithstanding into law, its weakened doc- trinal foundation, statute, its atextual of the construction inability apply methodology. the lower The re- courts’ its sulting “predicate confusion about the nature of a claim’s
duty” disagreement in as to and inevitable the lower courts representations type what are “material” and “mislead- increasing ing” perverse will have effect of the nonuni- formity regulation cigarette advertising, state the exact 5(b) § may problem remedy. Congress It intended yet again interpretation even force us to revisit Court’s Labeling respondents’ of the I Act. Because believe pre-empted Act, claims are under respectfully I dissent.