Tuesday, September 18, 2007
BNA Law Week reports that the 1st Circuit held that the Federal Cigarette Labeling and Advertising Act does not preempt smokers' state law claims under the Maine Unfair Trade Practices Act alleging unfair and deceptive practices by Philip Morris. See Good v. Altria Group Inc., No. 06-1965 (1st Cir. Aug. 31, 2007). The preemption clause at issue states that "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." 15 U.S.C. § 1334(b). The provisions referred to are the Surgeon General's Warning. The 1st Circuit distinguished between plaintiffs' various claims, holding that those claims based on a state law that are "broader in scope" are not preempted. Accordingly, the court struck down plaintiff's theory that defendant's advertising neutralized the Federal warning on preemption grounds, but upheld the misrepresentation and concealment claims. This represents a split with the 5th Circuit, which recently held that fraud claims based on advertising of "light" and "lower tar" cigarettes are preempted because they effectively operate as Federal warning neutralization claims. See Brown v. Broawn & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir. 2007). The opinion in Good v. Altria is available on the 1st Circuit website.
Because the 1st Circuit relied on a plurality opinion in the Supreme Court, Cipollone v. Liggett Group Inc., 505 U.S. 504 (1992), it seems likely that this case will be headed that way. The case raises an interesting theoretical issue about pragmatism in statutory interpretation (in addition to the federalism issues of course). Justice Stevens laid out the battle lines in a footnote:
Both Justice BLACKMUN and Justice SCALIA challenge the level of generality employed in our analysis. Justice BLACKMUN contends that, as a matter of consistency, we should construe failure-to-warn claims not as based on smoking and health, but rather as based on the broader duty “to inform consumers of known risks.” Post, at 2631. Justice SCALIA contends that, again as a matter of consistency, we should construe fraudulent-misrepresentation claims not as based on a general duty not to deceive but rather as “based on smoking and health.” Admittedly, each of these positions has some conceptual attraction. However, our ambition here is not theoretical elegance, but rather a fair understanding of congressional purpose. To analyze failure-to-warn claims at the highest level of generality (as Justice BLACKMUN would have us do) would render the 1969 amendments almost meaningless and would pay too little respect to Congress' substantial reworking of the Act. On the other hand, to analyze fraud claims at the lowest level of generality (as Justice SCALIA would have us do) would conflict both with the background presumption against pre-emption and with legislative history that plainly expresses an intent to preserve the “police regulations” of the States.
If this gets to the Supreme Court, I predict that Justice Scalia will have the opportunity to overrule Cipollone.