Altria--Summary of Decision

The Supreme Court held (5-4; Opinion by Stevens; dissent by "The Predictable Four") that consumers in Maine are not precluded from bringing a challenge to the federal cigarette labeling law under the Maine consumer protection act. Thus, the federal law doesn't "pre-empt" the application of the Maine law. The case didn't reach the merits of the claim, however (that there was actual fraud involved in the cigarette labeling); it simply declared that the suit against the tobacco companies for deceptive advertisting could go forward under the Maine deceptive practices act. The remainder of this essay will excerpt the syllabus of the decision.

First, Justice Stevens took up the issue of how Congress can indicate its pre-emptive intent in passing a statute:

"Congress may indicate pre-emptive intent through a statute's express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 51 L.Ed.2d 604. When the text of an express pre-emption clause is susceptible of more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687. The Labeling Act's stated purposes are to inform the public of the health risks of smoking while protecting commerce and the economy from the ill effects of nonuniform requirements to the extent consistent with the first goal. Although fidelity to these purposes does not demand the pre-emption of state fraud rules, the principal question here is whether that result is nevertheless required by 15 U.S.C. § 1334(b), which provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.”

Thus, if you have read the previous paragraph closely, you see that the primary remaining question is whether the Maine law imposes a "requirement or prohibition based on smoking or health." Here is how the Court argued:

"Respondents' claim is not expressly pre-empted by § 1334(b). As determined in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407, and Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532, the phrase “based on smoking and health” modifies the state-law rule at issue rather than a particular application of that rule. The Cipollone plurality concluded that “the phrase ‘based on smoking and health’ fairly but narrowly construed” did not pre-empt the Cipollone plaintiff's common-law claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact, because the claim alleged a violation of a duty not to deceive-a duty that is not “based on” smoking and health. 505 U.S., at 528-529, 112 S.Ct. 2608. Respondents here also allege a violation of the duty not to deceive as codified in the MUTPA, which, like the common-law duty in Cipollone, has nothing to do with smoking and health. Respondents' claim is not analogous to the “warning neutralization” claim found to be pre-empted in Cipollone. Reilly is consistent with Cipollone's analysis. This Court disagrees with petitioners' alternative argument that the express pre-emption framework of Cipollone and Reilly should be rejected. American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715, and Riegel v. Medtronic, Inc., 552 U.S. ----, 128 S.Ct. 999, 169 L.Ed.2d 892, are distinguished."

Thus, the majority saw this as a pretty straightforward application of a pre-emption framework laid out in its earlier cases. In contrast, the dissenters claimed that the majority has misread the law.

"Respondents' lawsuit under the Maine Unfair Trade Practices Act (MUTPA), Me.Rev.Stat. Ann., Tit. 5, § 207 (Supp.2008), is expressly pre-empted under § 5(b) of the Labeling Act. The civil action is premised on the allegation that the cigarette manufacturers misled respondents into believing that smoking light cigarettes would be healthier for them than smoking regular cigarettes. A judgment in respondents' favor will thus result in a “requirement” that petitioners represent the effects of smoking on health in a particular way in their advertising and promotion of light cigarettes. Because liability in this case is thereby premised on the effect of smoking on health, I would hold that respondents' state-law claims are expressly pre-empted by § 5(b) of the Labeling Act."

So, the first decision of the 2008-2009 term is a 5-4 one. I wonder if that presages continuing major splits at the Court..

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