Cipollone v. Liggett Group, Inc.

individually CIPOLLONE, as executor GROUP, CIPOLLONE LIGGETT ESTATE OF INC., et al. January 13, 1992 Reargued Argued October

No. 90-1038. 24, 1992 Decided June the cause for petitioner. H. Tribe reargued Laurence original cause for petitioner Z. Edell argued Marc M. Darnell. was Alan on the briefs them With argument. for III Farr respondents. cause H. Bartow reargued Richard G. Taranto* was on the briefs him With Min- the State of were filed for urging reversal curiae of amici *Briefs III, Attorney Minne- General of Humphrey al. Hubert H. et nesota General, and Attorney Ackerberg, Assistant Special M. sota, and Peter James respective as follows: for their States Attorneys General by the Arizona, of Blumenthal Alabama, Richard Grant Woods H. Evans Maine, Idaho, Carpenter Michael E. Connecticut, Larry EchoHawk Jersey, Tom Nevada, J. Del of New Papa Robert Sue Del Frankie Tufo Dakota, Fisher Spaeth of North Lee Mexico, J. of New Nicholas Udall Cancer the American Eikenberry Washington; Ohio, O. and Kenneth Morrison, Vladeck, F. and Cornish David C. Society by al. Alan B. et by Raymond Physicians Hitchcock; College Chest the American for Poland; American Medical Association S. for the and D. Sherman Cotton by Lawyers of Johnson; Trial America Association of for the by Kirk B. Maher; League for the National C. Jeffrey White Michael Robert and Ruda; Surgeons of the Former General by for Six et al. Richard Cities Daynard; Richard A by Stephen al. S. et States United Rosenfeld Siegel Justice, C., by P. Charles S. Lawyers for Public for Trial Bryant. Arthur were for the Association affirmance filed urging of amici curiae Briefs Weil; Inc., by and Gilbert H. for Advertisers, Burt Neubome National Zimmerman, Jan by Manufacturers Diane L. Association of

the National Liability Advisory Quentin Riegel; Amundson, and for the Product S. Levy. I. Inc., by and Mark Council, Kenneth S. Getter 508 opinion Court, delivered Stevens

Justice except and VI. Parts V as to Surgeon

“Warning: Determined Has General The Dangerous Smoking Cigarette Your Is That requires that in 1969 enacted statute A federal Health.” thereof) (or conspicuous appear in a warning a variation cigarettes every package in the United place sold on are presented case questions to us this The States.1 required predecessor which 1965 statute, or its whether petitioner’s alarming pre-empted label, a less respondent manufacturers. against began Cipollone,who the son of Rose Petitioner lung He claims cancer in 1984. and who died in 1942 Cipollone’s responsible death be- respondents Rose their they express contained in warranties cause breached they about the advertising, consumers failed to warn because misrepre- they fraudulently smoking, because hazards of they con- consumers, and because hazards to those sented spired deprive public scientific infor- medical and Appeals smoking. held Court of The mation about pre-empted petitioner’s federal were state-law claims (CA3 1990), have and other courts statutes, 893 F. 2d 541 highest analysis.2 the State agreed The court of with that Jersey, held that the federal statutes however, has of New 91-222, 1969, L. Pub. 84 Stat. Cigarette Smoking Public Health Act of 1984, Congress amended the amended, §§ In 16 U. S. C. 1331-1340. a rotating on basis. require explicit warnings, statute to more used four 98-474,98 Act, L. Stat. 2201. Comprehensive Smoking Education Pub. See party neither relies this petitioner’s before Because claims arose later Act. Cipollone initially forth in v. Appeals’ analysis was set Court 1986). Inc., (CA3 Liggett Group, F. Other federal courts have 2d 181 Pennington Corp., Vistron v. F. 2d adopted analysis. a similar See Co., (CA6 (CA5 1989); Roysdon Reynolds R. J. Tobacco 849 F. 2d 230 v. Inc., (CA11 Brands, 1987); Stephen v. 1988); American 825 F. 2d 312 Inc., (CA1 1987). Liggett Group, Palmer 2d 620 825 F.

509 Because claims.3 pre-empt similar did not granted certiorari we importance issue, of the manifest reverse We now U. S. conflict, to resolve part. part in affirm and I filed a Cipollone her husband August 1,1983, Rose On diversity jurisdiction Federal invoking complaint Cipollone alleged complaint Rose Their Court. District developed lung cigarettes manu- she because smoked cancer respondents. her After three and sold factured complaint. an filed amended her 1984, husband death estates, of both son, executor died; their he also trial, After this action. now maintains alleges complaint dif- several amended third

Petitioner’s liability, relying recovery, strict on theories of bases ferent warranty, These express intentional tort. negligence, catego- Jersey five into law, divide all based New claims, allege respondents’ “design claims” defect The ries. respondents to use failed because cigarettes defective were products design their because alternative safer dangers outweighed product was their social value 83-84). (Count App. to warn “failure 2, The it created a re- allege product “defective as was both that claims” warnings adequate provide [respondents’] failure sult (Count smoking” consequences the health 85) negligent respondents in the manner “were App. and that promoted they and adver- [that] researched, sold, tested, 86). (Count “express cigarettes App. their tised” “expressly respondents warranty allege had claims” (1990) Co., 69, 677 J. A. 2d 1239 Reynolds Tobacco N. Dewey v. R. J. plaintiff’s Cigarette pre-empt failure-to- (holding does claims); Reynolds J. v. R. misrepresentation see also Forster warn and (Minn. 1989) plaintiffs’ claim Co., (holding that N. W. 2d 655 Tobacco mis design pre-empted; claims for liability for unsafe was strict pre warranty also not be express would representation breach of empted).

510 they manufac- cigarettes which smoking the that warranted conse- any health significant present did not sold and tured misrepresen- 88). (Count App. The “fraudulent 7, quences” “through willfully, respondents had allege that claims” tation [federally attempted to neutralize advertising, their 87-88), (Count that and App. 6, warnin[g]” labels mandated] upon,” act “ignored failed had possessed, they but had “cigarettes indicating were that data and scientific medical 89). (Count App. of consumers” health to the hazardous allege re- that claims” “conspiracy to defraud Finally, the public medical of such deprive the conspired to spondents (ibid.). data scientific that the respondents contended defenses, their As one Advertising enacted Act, Labeling and Cigarette Federal Smoking Cigarette Health Public successor, the its 1965,and liability on their based from protected them Act of Court ruling, District pretrial In a after 1965. conduct to estab- intended statutes were the federal that concluded throughout the prevail warning would that a uniform lish from protect manufacturers country that would requirements from varying “subjected being Supp. 1146, Group, Inc., F. Liggett Cipollone v. state,” pre-empt (NJ 1984), did the statutes that but Accordingly, the Id., at 1153-1170.4 actions. common-law pre-emption defense strike granted a motion court entirely. explained: The court warning does federally mandated present “However, the existence claiming that risks from prevent an individual warning is such indicates, therefore warning than greater for a extremely difficult be it will recognizes court inadequate. The inadequate to inform warning is present prove that the plaintiff to difficulty cannot However, proof they may be. dangers, whatever will opportunity affording that heard, and opportunity preclude the Supp., at 1148. the Act.” F. purposes of not undermine interlocutory appeal Appeals accepted an

The Court 1292(b), Cipollone and reversed. pursuant C. to 28 S.U. 1986). (CA3 court Liggett Group, 2d 181 Inc., 789 F. Acts ex- respondents’ that the federal rejected contention accepted their pre-empted but pressly actions, federal law. would conflict actions contention such purpose statutes,5 in the Relying on the statement “carefully Congress’ balance be- drawn concluded court warning public purposes of the hazards of the tween smoking protecting of national cigarette the interests and by damages upset actions economy” state-law would be “warning, advertisement, noncomplianee and with on based prescribed in the obligations promotion other than those Accordingly, the court held: [federal] Id., at 187. Act.” damage[s] actions preempts law “[T]he those state challenge smoking relating either the and health that warning cigarette packages or the adequacy on respect party’s to the adver- propriety actions of a [W]here cigarettes. the success tising promotion of and necessarily depends damage[s] on claim law of a state duty provide party a bore the that a the assertion warning Con- warning to the addition to consumers cigarette packages, required such claims gress on has Ibid, (foot- conflicting preempted with the Act.” omitted). note chapter, to purpose of this Congress, and the policy of the “It is the cigarette labeling program to deal with comprehensive a Federal

establish any relationship and between advertising respect and health, whereby— smoking may

“(1) may informed that public adequately be on each warning to that effect by inclusion of a to health be hazardous cigarettes; and package of (A) “(2) to the economy may protected national commerce and the (B) impeded policy declared and consistent with this maximum extent labeling and diverse, nonuniform, confusing cigarette by and smoking and health.” any relationship between respect to regulations with (1982 ed.). §1331 15U.S.C. as- specific claims identify the however, not, did court The Act. pre-empted that were by petitioner serted S. U. certiorari, for petition denied Court This trial. Court District to the returned (1987), ease Dis- mandate, Appeals’ the Court Complying with express-warranty, failure-to-warn, held Court trict fraudulent-misrepresentation, conspiraey-to-defraud respond- they on relied the extent barred were claims activi- public relations promotional, advertising, ents’ (the date effective January 1, 1966 ties after 1986). (NJ court Act). Supp. 669, 673-675 649 F. were not claims design defect while ruled also barred were those law, federal pre-empted Following dis- extensive Id., 669-672. grounds.6 other series jury answered trial, covery a 4-month damages $400,000 interrogatories and awarded special rejected all brief, In Cipollone’s husband. to Rose conspiracy claims, but fraudulent-misrepresentation and duty to warn its Liggett breached respondent had found however, found, It 1966. before express warranties its and unreasonably en- “Voluntarily and Cipollone had Rose that ” that smoking cigarettes’ and by danger countered] a known attributable injuries was her responsibility for of 80% findings). jury (summarizing 2d, at 554 893 F. See her. estate. to her damages awarded were no reason, For compensate hus- her damages jury awarded However, the express of respondents’ breach caused losses for band warranty. Ap- of the Court judgment, the final cross-appeals from

On rulings but Court’s District peals affirmed relevant issues on several trial a new for remanded to con- certiorari petition for granted the We decision. our statutes. federal pre-emptive effect sider the 6 claims. concerning these any question presented We

513 J-H 1—I suspected a link between smok- Although physicians had of medical studies centuries, the first ing illness and Dept, appear the 1920's. See U. S. until did not connection Surgeon Report of the Gen- Services, and Human Health of Smoking: Consequences 25 Reducing Health eral, (1989). ensuing saw wide Progress decades Years laboratory on health epidemiologic studies range and Surgeon smoking. General the time Thus, hazards advisory the issue in to examine committee an convened examining publications than 7,000 were more 1962,there smoking relationship Id., 5-7. and health. between its-report, advisory which issued committee In smoking “Cigarette is a conclusion: central its stated importance in the States sufficient United hazard of health Dept, appropriate remedial action.” U. S. warrant Surgeon Ad- U. S. General’s Education, Welfare, Health, (1964). Relying visory Smoking and Health Committee, (FTC), report, part Trade Commission the Federal advertising deceptive long regulated unfair had which industry,7 promulgated cigarette new trade practices in the January to take effect regulation which was rule, That rule. a violation of the Federal that it would be established 1,1965, clearly promi- disclose, Act “to fail to Trade Commission every pack, nently, advertising carton, box, all and on danger- cigarettes] [of container may . other death from cancer and to health and cause ous Reg. also Several States diseases.” Fed. labeling cigarettes. regulate moved Cong. g., also Laws, 470; eh. see Rec. See, e. 1965 N. Y. Moss). (1965) (statement Upon a con- Sen. 13900-13902 gressional request, postponed of the FTC enforcement its 7 (1960); 956 See, e.g., 56 F. T. C. Corp., Williamson Tobacco Brown & (1968); C. Co., Co., 55 F. T. 354 Myers Philip & Liggett & Tobacco Morris (1955); C. Co., F. T. C. 48 F. T. 682 Ltd., Reynolds 51 857 R. J Tobacco Co., (1952); 36 F. T. C. 282 London Tobacco July en- In regulation six months. new Advertising Labeling Act Cigarette and Federal the acted effectively adopted half Act).8 Act (1965 or Act ciga- warnings on mandated regulation: Act FTC’s requirement of such (§5(a)), barred but packages rette 5(b)),9 (§ advertising cigarette warnings in purposes: two statute’s Act declares 2 of the Section smoking cigarette public that informing (1) adequately (2) the national protecting health, may hazardous be nonuniform, imposed diverse, economy burden from the advertising regula- labeling and cigarette confusing § purpose, 4 of the Act the first furtherance In tions.10 any cigarettes in the or distribute to sell it unlawful made conspicuous label package bore a unless States United May Smoking stating: “Caution: Cigarette Hazard- Be pur- the second In furtherance Health.” Your ous part: provided in “Preemption,” § captioned pose, 5, smoking health, “(a) relating No statement 4 of this section required statement than the other package. any cigarette required on be Act, shall health relating “(b) statement No any cigarettes the advertising required in the shall conformity with the labeled packages of which provisions of this Act.” of the Act January 1,1966,

Although Act took effect regulation affecting of ad- provisions provided that its July 1, 1969. vertising on terminate would authorities approached, federal date termination As that regulations advertis- prepared further issue pro- its 1964 ing. the reinstitution The FTC announced §§1331-1340. amended, 15 U.S.C. 282, as 89-92, Stat. L. 8Pub. 9 authority "the §5(e) preserved However, expressly deceptive acts to unfair or respect Commission with Trade Federal 283. 79 Stat. cigarettes.” practices 5, supra. n. See

515 cigarette warning requirement concerning for eeedings (1969). Reg. Federal The 34 Fed. advertisements. (FCC) it that would announced Commission Communications proposed the broadcast which would ban rule “a consider Id., cigarette and television stations.” radio commercials reg- prepared also to take actions authorities State at 1959. ulating cigarette advertisements.11 the Public enacted in this context

It was (1969 Act),12 Smoking Cigarette of 1969 Act or Act Health ways. First, Act in several the 1965 amended which part by requir- warning strengthened label, smoking dangerous” cigarette ing “is rather a statement “may the 1969 Act Second, be hazardous.” than advertising “any cigarette medium of electronic banned jurisdiction.” subject [FCC] Third, and communication provision by pre-emption Act modified the related, the 1969 6(b) provision original replacing that reads: with “(b) requirement prohibition based on No imposed law with re- health shall be under State any cigarettes promotion spect to conformity packages of which are labeled in provisions Act.” of this

Although not to “take the Act also directed FTC July respect pending to its trade 1,1971, action before relating cigarette advertising,” regulation proceeding rule provision prohibit narrowing way “imposed under State cleared the restrictions law” warning-label requirement print extend the FTC cigarettes. advertisements for did so 1972. FTC Lorillard, In re 80 T. See F. C. example, passed For the California State Senate a total ban on both

print and electronic advertisements. Senate Votes “California Cigarette Advertising,” Washington Post, Ban 1969, p. On June A9. 91-222, amended, §§1331-1340. 12Pub. L. 84 Stat. 15 U.S.C.

III the laws provides that the Constitution VI of Article supreme Land; the of Law the he “shall States the United any state or Laws Thing in the Constitution . . . since Thus, notwithstanding.” 2. VI, cl. Contrary Art. the 316, 427 Maryland, 4 Wheat. v. in McCulloch decision our (1819), conflicts law' that that state settled it has been 461 Maryland Louisiana, v. “without effect.” law is federal arising (1981). under of issues Consideration 746 725, U. S. assumption the “start[s] the Supremacy Clause the süper- [are] to be not powers police of the States historic mani- [is] clear and unless that Federal Act ... seded Corp., Elevator Congress.” Fe Santa Rice v. purpose of fest “ (1947). purpose ‘[t]he Accordingly, 218, 230 331 U. S. analy- pre-emption touchstone’” Congress is the ultimate (1978) Corp., 504 497, U. 435 S. Motor v. White Malone sis. 103 96, U. Schermerhorn, S. 375 (quoting v. Retail Clerks (1963)). “explicitly in the statute’s may stated

Congress’ intent pur and structure implicitly its contained in language or Packing 525 519, 430 U. S. Co., pose.” v. Rath Jones congressional state command, express anof In the absence actually with federal conflicts pre-empted law if that law is Energy Resources State Co. v. Gas & Elec. law, see Pacific 204 Development Comm’n, 461 U. S. Conservation legislative occupies thoroughly (1983), law or if federal so “ Congress left tlie inference reasonable ‘as to make field Fidelity Fed. supplement it.’” for the States no room (1982) Cuesta, 458 U. S. De la Loan Assn. v. &Sav. 230). Corp., at S., U. (quoting Fe Elevator Rice Santa pre- persuaded Appeals that the was The Court of not encompassed provision Act emption in the 1969\ also It 185-186. was 2d,';at 789 F. claims.13 distinguish be analysis, court did express pre-emption In its solely Acts; it and 1969 relied provisions of the 1966 tween was least provision believing that latter, apparently on the obligation imposed labeling persuaded both that the congressional intent to 1969 Acts revealed the 1965 and every aspect the rela- over federal control exert exclusive cigarettes tionship Id., at 186. Never- and health. between light reading as a whole in the the statute theless, considering potential purpose §2, statement regulatory actions on federal effect of state common-law uniformity, Appeals the Court of concluded interest impliedly pre-empted petitioner’s claims chal- had warnings lenging adequacy on labels or in adver- pro- propriety respondents’ tising or the Id., activities. at 187. motional opinion, pre-emptive scope of the 1965

In our entirely by express language governed the 1969Act is §5 Congress the issue has considered of each Act. When legislation pre-emption in included the enacted and has addressing provision explicitly issue, and when a congressional provides provision a “reliable indicium in authority,” respect Malone v. tent with to state White Motor congres Corp., S., 505, “there is no need to infer 435 U. pre-empt state laws from the substantive sional intent to legislation. provisions” Federal of the Sav California (1987) ings (opin Guerra, 272, 282 Assn. 479 U. S. & Loan v. J.). reasoning is a variant of the Marshall, ion of Such expressio principle of unius est exclusio alterius: familiar Congress’ provision defining pre-emptive enactment beyond implies reach of a statute that matters reach are provisions pre-empted. case, In this other not § beyond 1965 and Acts offer no cause to look of each only identify expressly Therefore, need Act. we domain pre-empted by each of the 1965and those sections. As substantially, provisions we in differ consider each turn. provision. ruling petitioner’s broad as the 1966 The court’s ultimate January 1, impliedly pre-empted claims were effective reflects the §2, purpose fact that the 1969 Act did not alter the statement of in which analysis. implied pre-emption was critical to the court’s HH < regarding provision In the narrowly: “No state- precisely and (§5(b)), Congress spoke required smoking shall health relating ment 5(a) cigarettes.” Section labeled] [properly advertising of (“No relating to statement phrase the same used §5(a) labeling. As cigarette health”) regard to warning sort to the phrase referred clear, that made warning verbatim set forth which §4, provided for their Thus, on appropriate. to be Congress determined and federal state merely prohibited provisions these face, cautionary mandating particular rulemaking from bodies (§5(a)) ad- or in cigarette labels statements (§5(b)). vertisements read this provisions, precise these words

Beyond the as discussed First, reasons. appropriate several ing pre light of the provisions these construe we must above, regu power police state pre-emption of against sumption appropriateness presumption reinforces This lations. §4 required in warning Second, reading 5. a narrow obligations additional foreclose effect its own does particu requires That imposed state law. under regula automatically pre-empt a warning does label lar 228 U. S. Wisconsin, tory McDermott See field. conflict general, inherent no Third, there 131-132 requirements warning pre-emption of federal between damages vitality common-law state continued and the Comprehensive Smokeless example, the in For actions. expressly Congress 1986,14 ofAct Education Health Tobacco relating imposition “statement of a pre-empted local state or but, health” products and tobacco of smokeless use to the damages based actions preserved state-law time, the same §4406. con of these All products. U. S. C. See 15 on those super having §5 as read is best indicate siderations §§4401-4408. U. S. codified, 15 C. 30, as 99-252, 100 Stat. L. 14Pub.

519 legislatures or administra by enactments only positive seded warning labels.15 particular mandate agencies that tive statement Act’s 1965 the comports with reading This “diverse, non- to avoid intent expressed an purpose, which labeling and confusing cigarette and uniform, relationship smok- any between respect to with regulations regulatory backdrop of against the Read ing and health.” agen- federal legislatures and by state activity undertaken report, term Surgeon General’s response to cies in positive enactments naturally to refers “regulation” most damages actions. to bodies, not those supports such also Act 1965 of the regulatory context promul- warning requirement above, reading. noted As consider- under requirements other FTC gated 1965 passage catalyst for were by the States ation §5, passage of animated regulatory actions These Act. multiplicity prevent “a Congress’ efforts reflected which ciga- labeling of pertaining to regulations and local of State 4 Cong., Sess., 1st Rep. 449, 89th No. R.H. packages,” rette authori- local State, and Federal, “preempft] (1965), all relating requiring statement from ties (emphasis cigarettes.” Id., at 5 advertising of health supplied).16 §5 1965 we conclude reasons,

For these rulemaking from bodies federal only pre-empted (1968) 15 1082 F. 2d 405 FCC, App. D. C. U.S. Cf. Banzhaf applied policy fairness FCC’s pre-empt Act did not (holding denied, U. S. advertising), cert. phrase reading of the narrow our Scalia takes issue Justice interpretation solely anon however, relies criticism, His “No statement.” legislative textual and both from artificially severed words, two those §5(b) re statement” “No above, phrase demonstrated As context. itself §4, which turn refers 5(a), §in which phrase the similar fers to regu context, combined This statement. particular forth a sets reading a narrow acted, establishes in which latory setting appropriate. “No statement” phrase cautionary did mandating particular statements damages actions.17 pre-empt state-law

V plain lan- predecessor Act, in the 1965 Compared to its 1969Act is much provision in the pre-emption guage of the ” “statements] simply bars not later Act First, broader. imposed prohibition^] . “requirements] or . . rather but beyond Act reaches the later Second, law.” under State respect advertising” obligations “with “in the statements cigarettes. promotion” of to the language, in Notwithstanding differences substantial these respondents Act that the 1969 petitioner contend both scope materially pre-emptive federal alter did is a sen- primary support this contention for Their law.18 Report the 1969 states which Committee in a tence 5(b). Rep. S. version “clarified” amendment (1969). reading reject parties’ p. 12 We 91-566, No. origins language incompatible the amend- with the “[inferences from context, in noted another ments. As we history a reed. More- legislative on so slender cannot rest subsequent a hazardous form the views of over, inferring earlier United of an one.” for intent basis The 1969 Price, 361 U. S. States rewriting changes the label law: substantial worked allowing advertising, banning warning, broadcast advertising. print regulate In the context of such FTC to wording, changes light revisions and substantial re appears interpretation of the 1965 Act consistent 17TMs understanding Although re contemporaneous of the Act. spondents’ relating ciga litigation participated great in a deal of spondents have is the first in 1950’s, appears that this case beginning rette in the use they §6 defense. raised as a which have 23-24; Respondents for Petitioner 21-23. See Brief Brief

621 not Act did the 1969 parties’ claim that accept the cannot we 5(b).19 §of the reach alter 5(b), § broadened however that contends next Petitioner actions. pre-empt common-law not Act, does by the 1969 limiting the amended reach of the theories two offers He damages actions 5(b). argues § that common-law he First, that prohibition^]” and “requirement^] or impose do injunc trump statute[s], “state Congress intended disagree; We pronouneement[s].”20 executive tion[s], or plain of the words both with analysis is at odds an such understanding of common-law general with Act and 1969 prohibi requirement “[n]o phrase damages The actions. between suggests broadly no distinction sweeps tion” contrary, those to the law; and common positive enactments of obligations the form encompass that take easily words “[state] context, ánother noted As we rules. common-law through award an effectively exerted regulation can be preventive relief. through some form damages as designed to indeed compensation be, can pay obligation to controlling governing conduct potent method abe, Garmon, Building v. Council Diego Trades policy.” San 236, 247 U. S. 359 history 1969Act legislative portions of the

Although positive Congress primarily concerned was suggest that Rep. 91-566, No. see S. localities, States enactments beyond' such plainly reaches language of the Act p. language plain un- give this effect must “We enactments. Congress intended good believe reason there less meaning.” Shaw restrictive some more language have 19 (§2) suggested purpose Act’s statement above, 1965 noted As en “regulations” positive primarily concerned Congress was that — Although actions. damages actments, than rather of that retention that §2, persuaded are not we did not amend meaning rejecting plain basis for is a sufficient 1965 Act of the portion 5(b). added to Congress that language the broad 20. Petitioner Brief for (1983). In case this U. S. Lines, Inc., 463 Air

Delta Congress less meant “good to believe” no reason there is of the light narrowness said; indeed, it than what “good to believe” reason there is Act, amending Act. precisely said meant what raised damages sort actions Moreover, common-law duty, legal of a existence premised on the by petitioner are impose “re- say do such actions is difficult to and it of Torts Law Prosser, prohibitions.” W. See quirements or 1990) (6th Dictionary (4th 1971); ed. 1489 Law Black’s 4 ed. [involving] of some “always a violation (defining “tort” way that the 1969 owing plaintiff”). duty is this It §5(b) the predecessor: Whereas its from of differs version any normally require use a vendor not would law common advertisements, packages its or in specific its statement on that duties to enforce law of the common it is essence the prohibitions. negative requirements or either affirmative phrase argument that the reject petitioner’s therefore We pre- 1969 Aet’s prohibition” the “requirement limits by legislatures and positive emptive scope enactments agencies. excluding argument second

Petitioner’s §5(b) “imposed hinges phrase on the of the reach rules from At least argument as well. fails This law.” under State (1938), have Tompkins, 64 we 304 U. S. v. Erie R. Co. since law as phrase common recognized to include “state law” just Term, regulations. last Indeed well as statutes “ including State phrase law, other ‘all that stated Court [a] . . . distinction municipal admit not “does law’” liabil- rules positive and common-law between enactments Dispatchers, ity.” Co. Train & Western R. Norfolk against Although presumption 117, U. S. phrase give good to construe might pre-emption reason narrowly provision than pre-emption more ain “state law” a such in this case phrase context, in another an identical explained above, appropriate. As is not construction face; the on its precise §5 and narrow was version extended version language the 1969 obviously broader the ver- while Moreover, reach. pre-emptive section’s “any pre-empted Senate passed the 1969 sion advertising or respect to... regulation with statute State (1969), p. the Conference Rep. 91-566, No. promotion,” S. with law language “State replaced this Committee situation, In such promotion.” advertising or respect to fairly be limited cannot §5(b)’s law” “state enactments. positive 5(b) § limited cannot scope of pre-emptive That pre- section not mean does

positive enactments respondents example, as For claims. empts all common-law obliga- pre-empt 5(b) “state-law generally § not does concede, manufacturing de- cigarettes marketing to avoid tions design for demonstrably alternative safer use or to fects 5(b), law common purposes For cigarettes.”21 piece. aof subdivision familiar indicate statute does

Nor therefore pre-empted. We is or of common-law 5(b) § pre- suggestion that passing petitioner’s cannot follow 5(b) § or that acts, not for liability but omissions empts for inten- not for but torts liability unintentional for pre-empts light fairly but—in must we Instead torts. tional construe pre-emption narrowly against strong presumption — 5(b) to each § look we must language precise is whether determine claims common-law petitioner’s case inquiry in each central pre-empted.22 in fact 14. Respondents for Brief expressly Congress did that fact of the makes much 22Petitioner stat other reach, it has in as pre-emptive §5’s law within common include 1716z-17(d). Respond § 1144(e)(1); S. C. 12 U. See, g., e. U. S. C. utes. saving clause a not include Congress did fact that much ents make See, statutes. in other claims, it has again, as common-law preserving make §5, omissions analysis these our e.g., §301. Under S.U. C. law saving common nor pre-empting neither was perfect sense: duty legal that is the whether

straightforward: we ask a damages constitutes action predicate of the health... on prohibition based “requirement or advertising or respect to . .. imposed law under State reading. fair but narrow giving clause a that promotion,” limits that clause phrase within below, each As discussed by the statute. pre-empted claims of common-law universe In damages in turn. category actions each We consider actions opinion these on whether express doing no we so, arguendo, assume, law; we of state a matter claims as viable they are. that to Warn

Failure petitioner must liability warn, a failure to establish To product necessary . . . a warning make that “a show that use,” its intended fit for reasonably safe, suitable warning, that and that provide such respondents failed injury. petitioner's Tr. proximate cause was a failure closely related petitioner offered two case, In this 12738. respond- concerning first, to warn: failure theories they [that] tested, re- negligent the manner “were ents cigarettes; their promoted, and advertised” searched, sold, “adequate provide respondents failed second, smoking.” consequences warnings of the health App. 85-86. they pre-empted extent claims are

Petitioner's prohibition re- “requirement ... rely or a state-law advertising promotion.” insofar Thus, spect to . . . showing require theory failure-to-warn under either promotions should post-1969 respondents' warnings, clearly stated, or more additional, included have however, pre-empted. not, Act does The claims are those respondents’ solely rely on petitioner’s pre-empt that claims claims, simply particular pre-empting as a was whole —it saving others. while unrelated actions practices or other

testing research or promotion. advertising or Warranty Express

Breach warranty arises express anof for breach claim Petitioner’s (West 1962), 12A:2-313(l)(a) which §Ann. J. Stat. N. under provides: by the seller promise made or

“Any of fact affirmation goods becomes to the buyer relates which express war- an bargain creates part the basis the affirmation goods conform ranty shall that promise.” or largely warranty consists express anof evidence

Petitioner’s advertising. See respondents’ made of statements 1988). (NJ Apply Supp. 1487, 1497 683 F. 574, 576; at 2d, F. Congress pre-empted ruling Appeals’ ing the Court propriety of a challenge ... “damage[s] ... actions advertising promotion respect party’s actions Court ruled District 187,. cigarettes,” 2d, at 789 F. ad [respondents’] question “inevitably brings into claim this pre therefore and is activities, promotional vertising and Supp., As demonstrated 675. 649F. empted” 1965. after broadly: sweep so not does the 1969Act however, above, challenges the claima whether inquiry appropriate but whether advertising promotion, “propriety” of re of a state law imposition under require" claim would smoking and health prohibition based quirement promotion. respect to express war liability of an breach for manufacturer’s A by, of that terms measured and is ranty from, derives imposed an “requirement^]” Accordingly, warranty. “imposed law,” State warranty under claim are express example, If, imposed warrantor.23 rather but in contract to sound it warranty are said express Thus 1990) (6th ed. Dictionary 1489 Law Black’s Compare than in tort. rather duty ... and of some always abe violation must “There (defining “tort”: pay promised medical expressly a smoker’s

manufacturer duty emphysema, to honor if contracted she bills “imposed state fairly under promise to be be said could not by the undertaken rather is best understood law,” but duty general to breach not itself. While the manufacturer “require- particular law, state arises under warranties respect health . with . . on ment . .. based express cigarettes” [of] promotion in an the warranty statements from the manufacturer’s claim arises remedy for a short, In a its advertisements. voluntarily not -undertaken should contractual commitment imposed regarded “requirement... law” under State as a 5(b).24 meaning of within warranty may have set forth been the terms of the

That separate irrel- documents is rather than in in advertisements (though possibly to the issue evant to warranty alleged is valid and state-law issue of whether enforceable) warranty although claim the breach because, advertising,” respect it does not rest “with is made ... Accordingly, duty imposed extent under state law. express petitioner breach of war- a viable claim for has by duty agree- not mere operation of law and generally such must arise id., agreement “An (defining “contract”: parties”) at 822 ment obligation”). persons which an two ... creates between general duty to honor ex Scalia that because the Justice contends every express warranty obliga law, press arises under state warranties law,” that, therefore, imposed “requirement... tion is a under State warranty Scalia petitioner’s express claim. Justice pre-empts the Act “liability” imposed pre-empted under state might be correct if the Act (as post, 551); expressly pre-empts he but the Act suggests, law instead That a prohibition” imposed under state law. “requirement acknowledges law that legal apart [state] “contract has no force from the Dispatchers, Co. v. Train character,” & Western R. binding its Norfolk provision 117, 130 (1991), every not mean that contractual 499 U. S. does understanding contrary, common “imposed under law.” To the is State although only under requirement, dictates that a contractual enforceable State, “imposed” by law, by the “imposed” is not but rather contracting party upon itself pre-empted claim by respondents, made

ranties Act. Misrepresentation Fraudulent misrepresen- of fraudulent alleges theories two Petitioner through respondents, alleges that petitioner First,

tation. federally man- effect the advertising, neutralized their state- a predicated on is a claim warning Such labels. dated promo- advertising and in against statements prohibition law hazards health to minimize that tend materials tional however, is prohibition, smoking. Such with associated merely warn- that requirement a state-law converse promotional materials. advertising and in ings included requirements pre-empts both 5(b) the 1969 Section first petitioner’s supersedes it therefore prohibitions; theory. fraudulent-misrepresentation relationship between recognized long Regulators have dangers of downplays the advertising that on prohibitions warnings advertisements. in requirements smoking and regu- trade initial its promulgating in example, FTC, For cig- advertising “associated that criticized rule lation contentment, attributes positive smoking such arette time same happiness youth, ... romance, glamour, activity consistent at least smoking an is suggesting that well-being.” Commission The health physical concluded: [is] smoking in- impression giving a false

“To avoid represents who cigarette manufacturer nocuous, smoking satisfactions or alleged pleasures risks serious advertising disclose also must his (1964). Reg. Fed. involves.” life Drug Administra- Food regulations Longstanding relationship be- understanding of the express a similar tion “negates or warnings and required tween shall warnings: substance “A hazardous those disclaims” if requirements labeling] [federal met to have be deemed designs, appears statements, . there label.. negates graphic manner or dis- other material that in §191.102 required warning].” [the CFR theory light petitioner’s quite first clear that In this seems inextricably misrepresentation related to of fraudulent theory theory, petitioner’s we first failure-to-warn 5(b). §by already largely pre-empted concluded have ' theory, by the District Petitioner’s second as construed alleges misrepresentation both Court, fraud and intentional by] [and coneeal[- representation fact “false of a material predicate of] ment a material fact.” Tr. 12727.25 duty claim not to false statements this is a state-law make of material fact or to such facts. Our conceal duty analysis requires us to such a is the determine whether 5(b). §by requirement prohibition proscribed or sort 5(b) only pre-empts imposition ob- Section of state-law ligations respect advertising promotion” or “with to the cigarettes. respondents concealed Petitioner’s claims that pre-empted those material facts are therefore not insofar as rely duty through claims on a to disclose such facts state-law advertising promo- channels of communication other than respondents example, obliged Thus, tion. law if state smoking to disclose material facts about and health to an 5(b) § agency, pre-empt administrative would not a state-law obligation. claim based on a failure to fulfill petitioner’s fraudulent-misrepresentation Moreover, respect advertising promotions that do arise to and (most notably allegedly claims based on false statements advertisements) pre-empted material fact made in are not §5(b). predicated duty “based Such claims are not on a smoking general obliga- on and health” rather on a but more 25The District Court stated following this claim “consists of the 1) [by elements: misrepresentation material fact false of. .. statement 2) 3) concealment]; knowledge falsity...; misrep of the intent that the 4) 5) upon; justifiable reliance...; damage.” resentation be relied resultant (NJ 1988). 1487, 1499 Supp. 683 F.

529 understanding of fraud This duty to deceive. not tion—the rea- several appropriate for misstatement by intentional sign that no Congress offered Act, 1969 in the First, sons. long- from cigarette manufacturers insulate to it wished contrary, both To governing fraud. standing rules author- the FTC’s explicitly reserved Acts and practices— deceptive punish identify ity and continues long exercised had authority FTC that the an 7(b) § 5(c) Act; See exercise. indicates supra. This 7, 9, also nn. Act; see (which smoking health” “relating to phrase intended Act) construed unchanged essentially was deceptive regulation of proscribe not narrowly, so advertising.26 health” reading on “based this

Moreover, Act. the 1969 purposes wholly consistent do fact material statements on false prohibitions State-law confusing” standards. nonuniform, “diverse, create not warning neces- concerning the obligations state-law Unlike pro- “reasonably state-law safe,” product sary render single, uniform rely aon fraud scriptions intentional on phrase “based falsity. conclude we Thus, standard: narrowly does construed fairly but smoking and health” on fraudulent duty to make general more encompass the alleg- petitioner’s claim based Accordingly, statements. respondents’ advertise- made statements edly fraudulent 5(b) § Act.27 of pre-empted not ments is or regulation of “preemption emphasized Report The Senate to phrased narrowly advertising is to respect prohibition in no It would and health. smoking based action only State preempt or the to the taxation respect ... State of power way affect the build public smoking of minors, prohibition to cigarettes of sale (em (1969) 91-566, p. 12 No. Rep. regulations.” S. police ings, or similar supplied). phasis of the level challenge Scaua Justice Blackmun Justice Both that, contends Blackmun Justice analysis. our employed generality not failure-to-warn construe consistency, we should as a matter Conspiracy Misrepresent Facts Material to Conceal re- a among final claim alleges conspiracy

Petitioner’s material facts concern- or conceal spondents misrepresent The un- duty the health hazards smoking.28 predicate ing to commit fraud. conspire this claim is a not derlying duty inten- in our analysis petitioner’s For the reasons stated 5(b) claim, tional fraud this is not duty pre-empted and health” as is a “based on smoking prohibition we conclude that Accordingly, construed. phrase properly claim. conspiracy the 1969 Act does not pre-empt petitioner’s VI did not summarize our The 1965 Act pre-empt To holding: state-law the 1969 Act damages actions; pre-empts petition- and the er’s claims based on a failure to warn neutralization health, duty smoking as but rather as based on broader "to based on Post, Justice Scaua con- inform consumers known risks.” at 543. that, consistency, again tends as a matter we should construe fraudulent- duty misrepresentation general not to deceive claims not based on Admittedly, but rather as “based on each of these and health.” However, positions conceptual ambition here has some attraction. our understanding elegance, congressional but rather a theoretical fair purpose. (as analyze highest generality To failure-to-warn claims at level of do)

Justice Blackmun would have us would render the 1969 amend- Congress’ meaningless pay respect ments too almost and would little reworking hand, analyze substantial of the Act. On the other fraud (as generality claims at the lowest level of Justice Scalia would have do) presumption against pre- us background would conflict both with the emption legislative history plainly expresses and with an intent to preserve "police regulations” supra. of the States. See n. conspiracy The District Court the evidence of as follows: described presented by [petitioner], particularly

“Evidence in the contained [respondents] themselves, industry documents of indicates ... that the [respondents] sophisticated which part these were and are a entered into refute, conspiracy. organized undermine, conspiracy and neu- was coming community....” tralize information the scientific and medical from Supp., 683 F. at 1490. those warnings extent to the federally mandated

of respondents’ adver- in or inclusions rely on omissions claims peti- pre-empt Act does the 1969 promotions; tising warranty, fraud intentional express based tioner’s conspiracy. misrepresentation, or and accordingly re- Appeals is of the Court judgment ease remanded part, and the part in and affirmed in versed opinion. this with proceedings consistent further ordered. is so

It Kennedy Justice whom with Blackmun, Justice in the concurring concurring part, join, Souter Justice in part. dissenting in part, judgment HH position con- compromise today craft would The Court persons pre-empts law federal which cerning the extent from conduct unlawful by cigarette manufacturers’ injured against those damages claims bringing common-law state holding divided Court’s find however, I, manufacturers. versions original and amended respect precedents do unsatisfactory. entirely Our statute federal beyond scope of infer us to not allow my language. Congress’ In clearly is mandated which legislation at issue here the federal version view, neither congressional unambiguous evidence provides the kind damages displace necessary intent and IV II, III, join I, Parts I therefore claims. and VI. V from Parts opinion, but dissent Court’s A opin- its exposition, III of Part agree the Court’s I pre-emption law, and principles underlying ion, of scope pre-emptive recognition that the particular with its (1965 Advertising Labeling Act Cigarette the Federal Smoking ofAct Act) Cigarette Health the Public (cid:127) 532 lan the express Act) entirely by (1969 is “governed 1969 Ante, at provisions. pre-emption the statutes’

guage” legislation has included here, Congress Where, 517. pre indeed, addressing provision a specific entitled — —and statutory interpretation— task one the Court’s emption,- pre-empted” expressly the domain “identify “ with ‘begin must Ibid. court An interpreting provision. that assumption Congress employed by the language expresses accurately of that language ordinary meaning Holliday, Corp. U. S. FMC 498 v. purpose.’” the legislative Fly, & Dollar Park Inc. v. Park ’N (1990) 52, (quoting 57 Coastal Fly, (1985)). Inc., 469 U. S. See 189, 194 California Co., (1987); 572, 591-593 Rock v. Granite U. S. Comm’n 480 Guerra, 479 Savings Assn. v. Loan& Federal California J.). We resort (1987) Marshall, (opinion 282 272, U. S. is, whether inquiring of implied pre-emption principles —that with intent field a particular has occupied Congress conflicts actually state law or whether state law supplant Co., 496 English Electric v. General see law, with federal with been silent has Congress when (1990) only 72, 79 U. S. — to pre-emption. respect cannot find that we

I Court agree further in this case pre at issue damages state unambigu of clear law in the federal absence empted ante, result. See intended Congress ous evidence to infer pre this reluctance describes Court at 516. against a “presumption cases as in ambiguous emption Ante, at regulations.” police power of state pre-emption has the Court cases in which many 518. Although state against displacement such a presumption invoked g., e. Florida see, pre-emption, law have involved implied Paul, Growers, 146- & Avocado Inc. Lime U. S. v. Corp., Fe Elevator (1963); Rice Santa U. S. terms in general often (1947), speaks this Court 236-237 issue the nature reference to without g., Maryland v. Loui- See, e. in the scheme. given statutory (“Consideration (1981) under the 725, 746 siana, 451 U. S. assumption that basic Supremacy starts Clause law”); Avocado displace intend Congress did not (“[W]e to conclude are not at 146-147 S., Growers, U. [state] statute ... this legislated ouster congressional mandate unambiguous anof absence in the Labor State New York effect”); v.Co. Bethlehem Steel (1947) (“Any indulgence in 767, 780 U. S. Bd., 330 Relations Con- because States, in favor should construction clarity to chooses it whenever speak with drastic gress can displacing completely authority, federal full assure J.). States”) (opinion Frankfurter, respect sover- principles of federalism pre- find reluctance Court’s eignty that underlie directly spoken the issue Congress emption has where though spoken, Congress has equal force where apply with question whether is not ambiguously. cases, In such regulation, but to what pre-empt state Congress intended evidence, infer unambiguous absent not, We do extent. clearly beyond mandated that which scope of agree the Court’s language.1 I Congress’ therefore dam- common-law unwillingness that the state to conclude such pre-empted unless case are ages in this at issue Congress.’” purpose and manifest clear is “‘the result Corp., 331 Fe Elevator v. (quoting Rice Santa 516 Ante, at 230). S., at U.

B foregoing application agree the Court’s I also opinion, it concludes where principles of its in IV Part narrowly power on state in inroads congressional 1The Court construes that, has held repeatedly example, the Court contexts, well. For other court, federal immunity from suit in sovereign waive State’s in order to language “unmistakably clear its intention must Congress make Scanlon, U. S. 242 Hospital v. State the statute.” Atascadero Muth, S. Dellmuth (1985); 491 U. claims are pre- common-law damages

none of petitioner’s 5(b) of §of view, the words In my the 1965 Act. empted and health shall (“No to smoking relating statement that Act the packages of any cigarettes in the advertising be required of this with the conformity provisions of which are labeled Act”) prohibited States meaning: can bear one statements cautionary “mandating particular from merely Ante, at As the 518. advertisements.” ... with Con- comports this interpretation Court recognizes, “ nonuniform, and ‘diverse, of avoiding stated purpose gress’ regulations’” and advertising labeling confusing cigarette Ante, (quoting and health. relating 1381(2)). of federal pre-emption The narrow scope U. S. C. corre- text, and statutory from the is thus apparent pur- “clear and manifest to divine spondingly impossible dam- pre-empt part pose” actions. ages

II at this Given the ceases point. with Court My agreement the ex- on the focus scope the Court’s proper analytical acknowl- here and its at issue provisions press pre-emption common- does not the edgment pre-empt the I find conclusion that claims, law the plurality’s damages 1969 Act some common-law damages at least pre-empts In the modified lan- view, claims little short baffling. my 1334(b) (“No § §of or 5(b), pro- U. S. C. guage requirement health shall be under imposed hibition based on with to the or State law respect promotion conform- the of which are labeled in cigarettes any packages Aet”), the no or “clearly” with of this more ity provisions exhibits an intent state common- “manifestly” pre-empt the its predecessor law actions than did damages language the reaches a Nonetheless, in 1965 Act. the differ- plurality ent and its warrants conclusion, reasoning scrutiny.

A it ruling what premises its plurality Congress in wrought changes” the “substantial terms provision rewording the notably, 5(b), § ante, (as opposed prohibition” “requirement or any pre-empt “statement”) As law.” “imposed under State merely any plurality that disagree I do not matter, an initial encom- can appropriate case, in an law,” phrase “State as such positive enactments aswell law as pass the common doI dis- 522-523. ante, at regulations. See statutes “State conclusion plurality’s however, agree, refer- 5(b) all-inclusive represents an such in as used law” phrase cannot selecting that Congress’ intention ence. range of considering narrow without be understood prohibition” “requirement —that actions— §5(b) law. “imposed under” state as specifically described (“We (1984) 822, 828 U. S. Morton, 467 v. States United See read isolation; we phrases in statutory construe . do . not. question] must [in the words Thus, a whole. statutes (footnote following phrase” immediately light of read U. S. Co., 367 & omitted)); D. Searle v. G. Jarecki is known a word (“The sociis, (1961) noscitur maxim inescapable rule, keeps, an company while by many capable mean- applied a word wisely where often breadth giving of unintended avoid ings in order Co. R. & Western Congress”); also see the Acts Norfolk (1991) (Ste- 117, 138-139 U. S. Dispatchers, 499 Train phrase other “all (declining dissenting) to read J., vens, broadly). municipal law,” including State law, phrase “no flatly that the plurality states Although “easily broadly” “sweeps prohibition” requirement of common-law obligations the form take encompasses] reality unam- far from words ante, at those rules,” congres- clearly a to evidence said biguous cannot damages ac- pre-empt common-law to mandate sional suggest, if terms dictionary of these definitions The tions. by a formal or disallowed specific mandated anything, actions Inter- g., Third New authority. Webster’s See, e. governing (1981) “require” (defining “to ask as Dictionary 1929 national by right au- authoritatively imperatively: claim or for (as gen- necessary on or essential thority” as “to demand satisfy some comply principles or in order eral 1990)(de- (6th Dictionary ed. Law regulation)”); Black’s prohibiting some- “[a]ct or law “prohibition” fining an as “interdiction”). thing”; an dam question whether common-law important, the

More anal regulatory effect manufacturers ages a exert actions assumption crucial positive enactments —an ogous that of “requirement or phrase plurality’s conclusion to the signifi encompasses actions—is prohibition” quotation plurality’s brief complicated cantly than more Garmon, Building Council v. Diego Trades from San suggest. (1959), ante, would see 236, 247 U. S. nec- behavior is a law on manufacturer’s of tort The effect very damages Although its award an essarily indirect. consequences manufactur- attaches additional nature ac- particular course of conduct, no unlawful er’s continued label) warning required. (e. g., adoption of a new tion example, a failure-to- on, liable A manufacturer found may ways. de- It may respond in a number warn claim doing business damages cost of accept as a awards cide Goodyear way. Atomic See alter its behavior and not (1988) (corporation Corp. 174, 185-186 Miller, S. 486 U. safety regulations sim- disregard [state] “may choose employee in- damages if pay award an ply an additional” violation). safety contrast, Or, jured a result of as warnings by dispensing may to avoid future awards choose pack- variety mechanisms, such through alternative general educa- public advertisements, age service inserts, re- a defendant programs. level of choice tional distinguishes the indirect shaping own behavior tains its positive regulatory enact- law from the common effect of

537 regulations. See and administrative statutes as such merits 577 69, 90, Co., 121 N. J. Reynolds Tobacco Dewey R. J. v. Dependency Cigarette (1990); Garner, 1249 1239, 2d A. 1423, Proposal, L. Rev. 53 S. Cal. Liability: A Modest Civil entirely separate (1980). an has tort law Moreover, 1454 apart di from sets compensating victims—that function— Chemical v. regulation. Ferebee Chevron See rect forms cert. 1540, 1529, F. 2d 736 App. 164, 175, C.D. U. S. 237 Co., (1984). 1062 U. S. denied, 469 acknowledgment, consistent

Despite its earlier is no “there damages actions, conception of foregoing pre-emption of federal between conflict general, inherent vitality of warning requirements continued state plu- 518,2 damages ante, actions,” common-law state “regulation statement Garmon^ rality apparently finds damages through an award effectively exerted be as can 247, atS.,U. preventive relief,” 359 through form some as extinguishing the common- authority to warrant sufficient am not I ante, at 521. See in this case. at issue law actions distinguished previously persuaded. has Court Not occasions recent several declined on but it has Garmon,3 direct or substan- tort law of state regulatory effects find the pre-emption. enough to warrant tial example, the Corp. Miller, for Goodyear v. Atomic In analysis, purposes distinguished, for Court 2 damages actions common-law fact, expressly allowed Congress, has regulation. of state other, direct forms more pre-empting while to survive Education Tobacco Health Smokeless e.g., See, Comprehensive Safety Health §4406; Occupational 34, C. §7,100 U.S. Stat. Gade v. seq., § 651 et construed in 1590,29 S. C. 1970,84 Stat. U. ofAct Assn., ante, p. 88. Management Wastes Solid National Garmon, state in which a explained has Court Rela National Labor pre-empted to be found damages was award relating pre-emption” of federal Act, “presumption special involved tions See Board. Labor Relations jurisdiction of the National primary to the General (1984); English 468 U. S. Employees, v. Hotel Brown Co., 72, 86-87, n. 8 U. S. Electric safety “the inciden from regulation” matters “direct pursuant to a damages awarded regulatory effects” tal Rely S., at 185. compensation law. 486 U. workers’ state Kerr-McGee in Silkwood part decision ing on its earlier in (1984),4 that “Con stated the Court Corp., 238, 256 464 U. S. regulatory reasonably may that incidental determine gress authority regulatory acceptable, direct pressure whereas recently, the Court more 186. Even atS., 486 U. is not.” (cid:127) S., at Co., U. English Electric v. General in declined dis damages emotional claims for common-law to find state energy The law. pre-empted Court federal nuclear tress employees for although to former that, awards concluded consequences” to “additional would attach distress emotional employers to could retaliatory employer lead conduct employees were underlying about which conditions the alter “neither direct be complaining, would such an effect ibid., pre-emption. Id., 85. at enough” to warrant nor substantial juris- recognized in this Court’s light distinction In regulation the indirect prudence state direct between damages actions, it cannot regulatory of common-law effects unambiguously clearly damages be said imposed state law. “prohibitions” under “requirements” damages punitive awards find state in declined to Court Silkwood The laws, may “It be that safety explaining: pre-empted by nuclear federal liability negligence or strict damages on the state law award based plant be threatened will regulatory in the nuclear sense regula standards, but that liability not conform state damages if it does willing to ac Congress quite something that tory consequence was was decision S., Court has Although noted cept.” 464 U. 256. in part” evidence on affirmative in “substantial was based Silkwood to include Congress did not intend history suggesting that legislative field, English see pre-empted damages remedies within (1990), Co., discussion Silkwood’s Electric 496 U. S. v. General been relied and has the common law is instructive regulatory effects S., at 186. See, g., Goodyear, 486 U. subsequent e. cases. pre-emption Act’s modified language plain of the 1969 The interpretation the simply broad bear provision cannot impart to it. plurality would

B §5(b) clearly or fail revised text of the does the Not common-lawdam pre-emption of require manifestly to legislative suggestion in the no there is ages but actions, scope expand history intended in 1969. statute amended the provision when it pre-emption Congress itself acknowledges evidence that plurality ” 5(b) ‘clarification]’ a mere changes perceived the provision, at 520 ante, existing narrow of the (hereinafter (1969) p. 12 Rep. 91-566, (quoting No. S. legislative statements these Rep.)), it dismisses but S. ” “ Congress.’ at Ante, subsequent of a ‘views as the intent 304, 313 U. S. Price, 361 States (quoting United only wrong (1960)). factual mat plurality as The §5(b) Congress amended that the the statements ter —for the “subsequent,” to enactment contemporaneous, not legal matter, as provision aas pre-emption revised —but amending weight” “great to an accords This Court well. underlying See, statute. interpretation of Congress’ the Broadcasting FCC, U. S. Co. v. e.g., Lion Red and n. 380-381, §5(b) generally nonsubstantive as

Viewing revisions By replacing “statement” the word makes sense. in nature adding “requirement,” and slightly term, broader with the not do could “prohibition” that a State to ensure the word (e. g., banning adver- negative all through mandate through already to do tising) forbidden it was that which cautionary mandating particular {e.g., positive mandate existing “clarif[y]” pre- statements), Congress sought laws and confusing against and nonuniform cautions Rep., regulations. at 12.5 S. Congress’ acknowledges evidence

Just nonsubstantive, provision pre-emption were changes history legislative “portions of the plurality admits that primarily Congress con- suggest was Act by localities.” positive States enactments cerned explains Report Senate the relevant Indeed, at 621. Ante, provision to in- “intended pre-emption revised that the by all other admin- but State statute action clude not any regulations or ordinances local actions or istrative any remarkable a list State,” political subdivisions damages actions. to common-law reference absence (c)(1) 1144(a) §§ e.g., 29 U.S.C. Rep., Cf., 12. S. (ERISA as used in “any laws” all State defines statute decisions, rules, laws, provision “all pre-emption to mean law”) having effect of regulations, action State other added). plurality this statement dismisses (emphasis The language of “the simple observation Ante, [positive] beyond enactments.” plainly such reaches (“re- §5(b) words above, the Yet, as at 521. discussed “plainly” extend prohibition”) so quirement do plac- plurality errs in damages and the actions, fragile hook. weight textual ing much on this so time acknowledges at the same that, plurality further 6(b), provision amended purpose contained of alter statement no effort to it made Although §2 n. 19. Ante, 521, at of the 1965 Act. in under scope pre-emption construing reported In case the one aware, see Congress was which v. FCC —a case Act, the 1965 Banzhaf Circuit of Columbia the District Appeals for Court of Rep., S. at 7—the 5(b)'s § on “state ban requirements” to describe term “affirmative used the (1968), cert. 14, 22, 2d 405 F. App. 132 U. S. D. C. ment[s].” FCC, It is Institute, 396 U. S. 842 nom. Tobacco Inc. denied sub converse, “negative to the step requirement” but a from “affirmative small single explanatory there, and, to the from ("prohibition”), requirement” prohibition.” phrase, “requirement or relegates

plurality to a vital- footnote, this fact the continued §2 ity significant, particularly light in the Court’s purpose reliance on the same statement of for its earlier con- pre-empt does clusion that the 1965 Act state common- damages (concluding ante, law actions. at 519 that See Con- gress’ expressed intent to avoid diverse, nonuniform, and naturally confusing regulations positive “most refers to en- legislatures agencies], [state actments and federal not to actions”). damages absolutely Finally, suggestion legislative there is no history Congress plaintiffs intended to leave who were injured aas result manufacturers’ unlawful con- yet regret- without alternative remedies; duct is the ruling today many table effect state common-law damages pre-empted. past Court in the has provides law hesitated to find where federal no remedy. comparable Sociolegal History A Rabin, See (1992)(not- Litigation, 44 853,869 Tobacco Tort Stan. L. Rev. ing strong the “rather tradition of federal to com- deference victims”). peting compensating injury state interests In- “Congress’ deed, Silkwood, the Court took note of failure provide any remedy” injured persons, federal Congress stated that it was to believe “difficult would, judicial comment, without remove all means of recourse for injured by illegal those at S., conduct.” U. 251. See (“[I]t dissenting) id., also at 263 (Blackmun, J., is inconceiv- Congress remedy able that intended to leave victims with no all”). Unlike other federal statutes where has eased pre-emption by establishing “comprehensive” the bite of civil Ingersoll-Rand e.g., schemes, see, enforcement v. Mc Co. (1990) 502(a) § (discussing Clendon, 498 U. 144-145 S. ERISA), Cigarette Labeling Advertising is bar merely empowers ren of alternative remedies. The Act regulate deceptive Federal Trade Commission to unfair (15 advertising practices 1336), S. C. U. establishes minimal 642 exceed to (misdemeanor fine penalties criminal (§ 1338), and provisions Act’s violations

$10,000) for applica- upon Government’s the courts, federal authorizes plu- 1339). (§ the Unlike of Act the enjoin violations tion, Congress, without that unwilling believe rality, I am inten- itsof damages actions common-law of state mention pre-emption, scope of federal expand dramatically the tion judicial recourse only means the eliminated have would conduct. unlawful manufacturers’ injured those fail 1969 language the plain the does Thus, not common- state petitioner’s pre-emption require clearly to legisla- suggestion in is no there damages claims, but law scope of expand the Congress intended history that tive plu- manner provision the drastic pre-emption the rality pre-emption infer obligation to Our it. attributes mandates manifest is clear Congress’ intent only where damages actions state common-law conclusion Act.6 1969 pre-empted H*i HH pre plurality^ specifics of the Stepping from back ultimately plurality result analysis to view emption Notwithstanding disturbed. further amI reaches, “ ‘ purpose of Con “[t]he acknowledgment ready Court’s ’ analysis,” touchstone” ultimate gress is the Corp., S.U. 435 Motor v. (quoting White Malone 516 ante, at crazy quilt proceeds to create (1978)), plurality 497, 504 6 Third including the question, to consider Appeals Every Court concluded similarly has case, in this opinion an earlier Circuit the 1969 under pre-empted expressly are not damages claims 181, 185-186 Inc., F. 2d Group, Liggett Cipollone v. g., e. See, Act. Vistron (1987); Pennington v. U. S. 1043 denied, 479 1986), (CA3 cert. Tobacco Reynolds J. v. R. 1989); Roysdon (CA5 F. 2d Corp., Inc., 2dF. Group, Liggett Palmer (CA61988); v. 230, 234 Co., 2dF. Co., 121 Reynolds Tobacco Dewey v. R. J. 1987). (CA1 See also 620, 625 Tobacco Reynolds R. J. (1990); Forster 1239, 1247 85, 677 A. 2d N. J. 1989). (Minn. 655, 668 Co., 437 N. W. 2d impli- among claims common-law the pre-emption from doing that Con- a result reaches in so case, in this cated surely have intended. not gress could analysis plurality’s is problem the obvious most generality it exam- at which frequent the level of shift its plurality example, states the For claims. the individual ines (at in- those fraudulent-misrepresentation least claims that volving advertisements) fact of material statements false smoking duty and health’ on ‘based on a “predicated not are duty obligation not to general on a more rather but —-the 5(b) §by pre-empted are not therefore deceive,” and claims— Yet failure-to-warn 528-529. Ante, at 1969 Act. easily a “more as based on just be described as could which risks— obligation” of known consumers to inform general health” on “based implicitly to be are found plurality ante, at 524. The pre-empted. See declared are pre- warranty express goes to hold by manu- duty empted at issue undertaken because Ante, at “imposed State law.” 525. under and is not facturer general acknowledge, “the plurality itself must as the Yet, ibid. law,” under state duty arises warranties not to breach penalize added); decision (emphasis the State’s absent through dam- of a common-law the creation behavior such warranty exist. would ages claim no action, many principled perceive for basis no short, I can In among the common-law plurality’s distinctions asserted Congress to create intended believe that and I cannot claims, it hodgepodge when disallowed claims of allowed and a such Although provision pre-emption in 1970. amended 5(b) acknowledges fails “indicate plurality pre- claims is common-law subdivision familiar simplest ignores and most obvi- empted,” 523, ante, statutory silence: that explanation ous damages displace state intended never through manner the them in the cull much claims,, less difficulty speculate today. can plurality I does implement attempting to encounter will courts lower today’s decision.

IV common- certain finding federal By critical today eliminates the decision damages claims, law protect ability to traditional component States’ re- radical such Yet citizens. safety their health this under is warranted relations adjustment of federal-state Con- that evidence is clear if there precedents Court’s neither that I believe Because that result. gress intended Advertising Labeling and Cigarette the Federal version pre-empt congressional intent a clear such evidences respectfully dissent damages I actions, common-law state opinion. ofVI Stevens’ V and Justice Parts from con- joins, Thomas whom Justice Scalia, with Justice dissenting part. in part the judgment curring extra- an face, is its what, on Today’s announces decision statutory of federal principle unprecedented ordinary and be provisions must pre-emption express Construction: against the presumption light narrowly, of the “in construed Ante, at regulations.” power police state pre-emption of blessedly may have been span rule this new life The 518. I in Part gives birth opinion that as the inasmuch brief, some by adjudging at least V, ignore it in Part proceeds In pre-empted. here at issue tort claims of the newly doctrine crafted to this merit my is there no view, S. Supremacy Clause, U. Under the construction. of narrow Congress’s interpret job is to 2, our cl. VI, Const., Art. broadly, narrowly but nor neither pre-emption decrees job meaning. we did apparent If their accordance pre- Act, 1965 under find, would present case, we in the under claims; and petitioner’s failure-to-warn emption of petitioner’s claims find we Act, would complete.

I pre description of the law of threshold The Court’s “‘assum[e] enough: Though generally emption we accurate powers [are] police not to States the historic [is] superseded the clear and Federal Aet unless ... ” Congress/ (quoting purpose at ante, Rice v. manifest (1947)), Corp., we have 218, 230 331 U. S. Fe Elevator Santa statutory thought express traditionally require that to law, law in actual conflict with federal text. Where Energy g., Co. State Resources Gas & Elec. see, e. Pacific Development Comm’n, 461 S. U. Conservation accomplish (1983), as an obstacle or where it “stands objectives purposes of the full and execution ment (1941), Congress,” Davidowitz, 312 U. S. Hines v. Congress’s regulation, scope, nature of its even where “Congress left no room the States us that convinces difficulty supra, supplement have no Rice, 230, we had it,” yield. question declaring law must ultimate that state inquiry, have framed the is one of Con case, in each as we purposes, gress’s structure, intent, text, as revealed g., Eng subject See, the statutes involved. e. matter of (1990); Co., 72, 496 78-79 Shaw lish v. General Electric U. S. Inc., 85, 95 Lines, Delta Air 463 U. S. v. goes beyond principles, Court these traditional how- says express it First, two new

ever, to announce ones. that provisions given possible pre-emption must the narrowest consequence This is in its view the of our construction. assumption oft-repeated convincing that, absent evidence of “ statutory pre-empt, police powers ‘the of intent historic superseded,’” [are] ante, not to be see States at 516. assumption But seems me dissolves once there is pre-empt .express of conclusive evidence intent in the question remaining itself, words the statute of and the scope pre-emption is what the of is meant to There- be. upon, responsibility apply think, our is to I to the text ordi- nary principles statutory of construction.

546

'I have pre-emption cases express precisely our what That Trans World ago, v. in Morales a month than Less done. (1992), Airline that the held we 374 Inc., 504 U. S. Airlines, “relat laws pre-empting state provision Deregulation Act’s App. C.S. 49 U. services,” or routes, ing [airline] rates, fare enough 1305(a)(1), to reach broad was limiting plausible con availability of despite regulations “plain-statement” of no mention made We structions. applied the usual but construction, of narrow or rule rule, “ ‘ meaning [the statu ordinary “assumption of pur legislative accurately expresses the language tory] Corp. (quoting FMC supra, Morales, at pose. added). (1990)) (emphasis And Holliday, U. S. Dispatchers, v. Train R. Co. & Western Term, in last Norfolk express (1991), interpreted an we S.U. well-respected broadly despite a fact that provision read supported a narrower statutory construction canon dissenting). at 136 ing. 129; id., id., at See. J., (Stevens, pre against. . . “presumption word about said not We applied to construction to be that was emption,” ante, the text. pre-emption in the ab willingness to find light our In intent, the pre-emptive any explicit statement sence they exist, are explicit statements, where such notion somewhat “plain-statement” than subject rule more to a with rules jurisprudence abounds our sure, To be odd. construc “narrow statement,” “clear “plain statement,” unambiguous variously absent designed that, to ensure tion” extraordinary Congress’s constitutional intent, evidence protec important constitutional powers invoked, applied. seemingly inequitable doctrines eliminated, tions (1980) 535, Mitchell, U. S. g., States See, e. United “unequivo immunity (waivers sovereign must be federal Michigan Dept. Police, State expressed”); cally v.Will (clear compel (1989) required to statement 58, 65 U. S. against themselves state damages suits to entertain States 473 U. S. Scanlon, Hospital v. courts); State Atascadero immunity sovereign must be (1985) (abrogation of state of those language”)- But none “in unmistakable expressed so whereby result the same alongside a doctrine exists rules provision explicit protected careless from prophylactically express state- implication, with no by sheer achieved can be regime the Court the novel is That at all. of intent ment today. constructs account takes into one when still seem odder results Con- “When announces: Court that the rule new second in- pre-emption has the issue

gress has considered explicitly provision legislation ad- a enacted in the cluded dressing only identify domain need issue, ... we provision].” Ante, at 517. by [that pre-empted expressly provision, in other pre-emption express an there Once eliminated. pre-emption are implied all doctrines words, implied “field” may insofar correct proposition This pre- express of an The existence pre-emption concerned: inference provision contradict emption tends stat- than the occupy a field broader Congress intended regard to However, language with express defines. ute’s regulation e., where state implied “conflict” —i. regulation or where state actually law, federal conflicts with accomplishment execution” to as an obstacle “stands sec- supra, at 67-—the Court’s purposes, Hines, Congress’s seriously, it would If taken mischief. rule works ond new protection law example, if a federal consumer for mean, jurisdic- agency shall assert or court provided state that no safety any workplace issue law over tion under a state effect, then is in standard respect a federal to which subject dealing other agency operating under a law (e. protection) g., could im- safety consumer workplace than contrary entirely law—-forbid- to federal requirements pose safety equipment that certain ding, example, the use of knowledge, my ex- never we have requires. To law federal are inconsist- prior cases our pressed before, such rule Packing U. Co.,430 S. g., v. Rath e. Jones See, it. ent with novelty is combined second this When 519, 540-543 extraordinary: that statute The result first, the the everything; say pre-emption must anything says about ambiguity con as great exactitude, sodo with must it preserving of in favor scope read cerning bewill its sporting surely most law, be is to power. If this pre-emption. anything about say Congresses will dare of pre-emption express for of construction proper rule customary for that is the one me, seems provisions is, it language should general: Their statutory provisions in supra, Holliday, Corp. meaning. v. ordinary FMC given its this at 97. When S., Lines, 463 U. Delta Air 57; Shaw at intended provision was suggests broadly sweep as well. must broadly, sweep construction our narrow bespeaks a when e.g., at 96-97. And id., See, g., Fort judgment. See, e. our pre-emption, must scope so of (1987). Apply Coyne, 1, 7-8 482 U. S. Packing v.Co. Halifax (not finds construction, Court niggardly ing rule of its petitioner’s claims—common-law surprisingly) none warranty, intentional express warn, breach failure to §5(b) of pre-empted under misrepresentation fraud —is claims, the failure-to-warn And Act. save the 1965 5(b) § Aet. under the same result reaches Court ordinary principles Applying error. that is most of think I petitioner’s failure-to- statutory construction, I believe all his Aet, and the 1965 pre-empted claims are warn 1969Act. HH h-4 opin- its plurality says Part V of what the much With plainly [1969] Aet language agree “the I ion —that that the ante, 521; enactments,” beyond [positive] reaches ciga- against the petitioner invokes general duties tort-law “require- impose general matter, companies can, as rette 5(b) meaning prohibition^]’’ ment[s] within used in phrase “State law” ibid.; and Act, I ante, at 528. law, state common provision embraces application plurality, on its however, issue with take finding present Its principles case. general to the these of petitioner’s pre-emption only partial of they produce misperceptions I upon three rests claims common-law indicating headings the errone- under turn, in discuss shall they apply. to which ously permitted A Claims Failure-to-Warn Pre-1969 5(b) § best read Act “is According of the 1965 Court,1 to the by legisla- only positive enactments having superseded as particular agencies that mandate administrative tures added). (emphasis In warning Ante, at 518-519 labels.” 5(b)’s language § state- critical “No reads essence, the Court required” smoking . . shall relating and . health to ment smoking relating and to particular statement mean “No because required.” Court reasons The shall be health eigarette require manufacturers do not duties advertising, but any particular their statement include warning duties risks, those of health only some statement element basis for this I Act. see no the 1965 survive warning cigarette health require about To “particularity.” smoking relating require a “statement is to risks pre-emption,” against “presumption . . . If health.” limiting language import requires into the tous ante, require import why us to I see does do not Act, language “re- similarly 1969Act—so that a limiting into the respect smoking and health... on quirement based ... requirement, specific and not advertising” means imposed noncigarette-specific tort just general, duties jus- the 1965Act cannot be divergent treatment of law. Blackmun, Kennedy, Sou- joined by Justices plurality is 1The Act. analysis TER in its as Court which, purposes, by the Act’s statement

tified nonuniform, “diverse, expresses concern notes, regulations.” advertising labeling and confusing added). 1331(2) statement That (emphasis §C.S. 15 U. thus 1969, and untouched purposes was left 5(b) scope later restrictive be as should earlier scope of the one.2 it is of believes Court specifically premised petitioner’s claims extent To period in which (during the respondents’ failure state- force) their to include inwas Aet find those I would health, relating ment pre-empted. claims, post-1969 similar than the no less claims, explain, III, see Part later I shall for reasons addition, In based those claims even find I would infra, to statements health-related respondents’ to make failure on 5(b) § advertising. However, since their outside consumers require “state- only that enjoins those laws of the petitioner’s claims advertising, cigarette those ment[s]” in voluntarily penalize accepted, statements would if that, survive. deemed companies'must be cigarette by the made breach-of- petitioner’s inelude appear to these would As misrepresenta- fraud intentional express-warranty and respect. judgment this in the Court’s I concur claims, tion Act, imposing §4 because thinks that apparently Court 2The state forth a particular “itself sets requirement, package-labeling federal provision advertising pre-emption §5(b), ante, n. ment,” at compel use state laws those proscribe be read must se- non being complete Besides advertising. particular statements par of a prescription The similar too much: reasoning proves quitur, this to confine require us likewise Act would warning in the 1969 ticular “require specific, prescriptive statute scope later of that pre-emptive tort-law not include (which, presume, I would prohibition[s]” ment[s] under both And dangers). product about to warn consumers obligations package-labeling Act, versions the 1966 provision advertising pre-emption 5(a), § than no less provision of particular language, prescription of 5(b), to the to be limited would have requirements. health-labeling impose general free to leaving the States purposes. stated contrary to the Act’s obviously results are These B Claims Breach-of-Express-Warranty Post-1969 breach-of-express- case, petitioner’s of this context In the re- an assertion embodies necessarily claim warranty made materials and promotional advertising spondents’ un- is not smoking effect to the statements cer- actionable civilly statements such Making healthy. or prohibition “requirement an constitutes tainly appears "The plurality health.” based . . . of express for breach liability finds this, but accept the mean- within law” State under “imposed is not warranty “is the duty “[R]ather,” says, Act. 5(b) of the 1969 §of ing itself.” the manufacturer undertaken understood best Ante, agree. cannot I 526. or repre promise a particular attaches liability

When voluntary of a making law. For the it attaches sentation, the commission than for less no representation, promise which law against it is the background tort, an intentional the ele supplies itself, that the act occurs, and the act Building Assn. Loan& Home See obligation. of legal ment Ann. J. Stat. (1934); N. Blaisdell, 398, 429 U. S. 1962) (West (pro and 12A:2-715 12A:2-714, 12A:2-313(1), §§ warranties). course, Of of express enforcement viding conse attaches legal warranty express law of Jersey’s New conduct voluntary manufacturer’s cigarette to the quences I sense, suppose, narrow that and in warranty, the making the by to be “undertaken can said obligation warranty said that also be it could logic on that But manufacturer.” is under of cigarettes the dangers about to warn duty to sell choose they when manufacturers voluntarily taken im duty legal that generally, or, more Jersey; in New law. one is imposed behavior volitional on posed view, which its curious authority no cites The plurality re-we however, addition, In it. to doubt enough is reason & Western last Term very argument this Norfolk jected a federal Dispatchers, we where construed Train R. Co. law,” other all laws and from exemption the antitrust “from contract exemption from 11341(a), § an to include S. C. U. flatly passage inconsistent ain obligations. observed, We “[a] no today, has analysis contract that plurality’s binding acknowledges its that apart the law legal force from (Stevens, J., id., at at Cf. S., 130. 499 U. character.” dissenting). for breach petitioner’s claim find I would 5(b) §by 1969Act. pre-empted of the warranty express C Misrepresentation Claims and Fraud Post-1969 petitioner’s in- plurality, least one According at to the 5(b) § misrepresentation survives and fraud tentional underlying duty common-law because 1969 Act of the health” within and on “based is not claim that If I understand meaning, ante, at 528-529. See the Act. implicit proceeds reasoning, from the plurality’s it deriving are from laws assumption duties “smoking health,” or that to and specifically directed ciga- relationship between uniquely to address crafted 5(b) § putative fall within victims, companies their rette Jersey’s tort-law that New Given as amended. Act, applica- general one, “duty ante, 529, is deceive,” not. it commerce, all kinds actors all ble to commercial 5(b) pre-empt assumption does not from this follows duty. claims based breaches of plural- begin suspect, analysis with, because This consistently. apply unwilling As Justice ity Black- concurring (opinion cogently explains, ante, at see MUN Jersey’s part), dissenting common-law part if New applied fact—as duty of material statements false avoid companies’ “based on smok- eigarette behavior —is to the Jersey’s ing of New same be said must health,” dangers. product’s duty Each warn about relationship duty com- between transcends the specifically duty was neither smokers; cigarette and panies “smoking None health.” and eye toward an crafted support its distinc- to plurality advanees arguments the specifi- Congress persuasive. That is two between tion the Federal Acts, and the 1965 cally both preserved, in advertising deceptive police authority to Commission’s Trade 7(b) § Act; 5(c) of the § Act; the 1965 practices, see compa- Congress intended suggest that does at ante, 5(b). § least in at fact, In authority to survive state rable as well as (which federal generally excluded the 1965 §5(b) suggested was exemption regulation), state misrepre- governing and fraud laws enough reach broad governing laws States’ true that is not And it sentation. advertising impose identical misrepresentation fraud warning “concerning the laws their legal standards, whereas quite 'reasonably safe’” product a necessary render featuring glam- a an ad question whether ibid. diverse, “misrepre- teeth is pearly-white youthful smoker orous, differently certainly answered be almost would sentative” (discussing ini- FTC’s ante, to State. See State from rules). advertising cigarette tial methodology for a consistent select is forced one Once smoking legal duty on “based given evaluating whether methodology must obvious it becomes health,” (e. duty g., com- ultimate source upon focus application. Use law) proximate upon its but mon (i. duty legal “based is not approach e., a source” “ultimate it derives which the law from smoking unless and health” health) gut stat- would is directed confusing nonuniform, very “diverse, inviting ute, sought regulations” . . . 1331(2). simply problem not And the 15 U. S. C. avoid. imposed Requirements could law: the common operating they long as were agencies well, so executive supervision authorizing their general statute under practices.” New advertising” “unfair trade “commercial already Jersey many on have such statutes States and other (West 1989); § g., seq. et Stat. Ann. 56:8-1 the books. E. N. J. (McKinney §349 Supp. seq. 1988and et Bus. Law N. Y. Gen. (1987 § seq. 1992); and et Bus. Com. Code Ann. 17.01 Texas 1992). & Supp. apply petitioner’s claims what I have called

I would to all determining methodology “proximate application” they “based on and health”— whether invoke duties the source of the ask, is, whether, I would whatever duty, imposes obligation in because of the an this ease smoking upon basis, I would find effect of health. On that petitioner’s misrepresentation failure-to-warn pre-empted. both

Ill opin- Finally, plurality’s there is an additional flaw in-the systemic its correct ion, a one infects even otherwise disposition petitioner’s post-1969 failure-to-warn claims. 5(b) only “require- opinion proscribes states since that, prohibition^]... respect advertising ment[s] ... or ‘with ” promotion,’ premised the failure or state-law claims on “through other warn channels communication consumers advertising promotion” Ante, than or are not covered. added); preserves (emphasis ante, see at 524. This (somewhat fanciful) having claims based on duties (one imag- advertising promotion no relation to the could requiring ine a law manufacturers to disclose the health haz- agency), products public-health but ards of their ato complied also claims based duties that can be taking promotional action either within the appears realm or elsewhere. if—as be case Thus, Jersey requires New common law manufacturers State’s —a products’ dangers, to advise consumers of their but law (i. through requirement e., is indifferent as to how that is met otherwise), “advertising promotion” plurality apparently long unprepared would to find deficiencies in on zero jury instructed were as the promotion. advertising or manufacturers’ pre-emption. law inconsistent think I by which means normal are the promotion Advertising and warnings to product required communicates a manufacturer economical the most far customers, prospective ciga- save Congress meant implausible isIt means. convey data such compelled to being companies from rette to be only them to allow means, through that consumers to still. As onerous through more means so do compelled to “tell-the-eonsumers-any-way-you- matter, such practical relinquish advertis- to compels manufacturers law wish” Act. immunity them accorded promotion ing and practical setting one of be should this in pre-emption test compels the practically law e., whether compulsion, i. Congress has engage behavior in to manufacturers Ray g., directly. e.Cf., prescribing from the States barred 25n. S.U. Co., 435 v. Atlantic Richfield a state to requiring disclosure hypothetical law Though the test, I would this to survive agency seem would regulatory respect to met finding test difficulty no have general companies meet require the laws health. regarding warning” of “fair standards ^{[*] [*] [*]} speculate as “I can Like Justice Blackmun, attempting encounter will difficulty courts lower (opinion 543-544 Ante, [today’s] decision.” implement express part). Must dissenting part concurring in rea- narrowest really given their provisions pre-emption III), need (as says in Part the Court construction sonable V)? courts Are (as Part plurality does they pre-emption whenever implied ignore all doctrines provision, pre-emption express an contains issue statute at apply they today, to continue says or are Court purposes, past? For in the have as we them, voluntary- legal imposed duties law” include does “state Co.), (as & R. we held last Term in Western acts Norfolk (as says today)? and other plurality These does it not by today’s fill the lawbooks for questions will raised decision questions disposition years more A that raises to come. country well. does not serve the than answers

Case Details

Case Name: Cipollone v. Liggett Group, Inc.

Court Name: Supreme Court of the United States

Date Published: Jun 24, 1992

Citation: 505 U.S. 504

Docket Number: 90-1038

Court Abbreviation: SCOTUS