November 13, 2007
Preemption and tobacco
The United States Supreme Court will hear argument on 11/28/07 in Rowe v. N.H. Motor Transp. Ass'n, a case involving Maine's efforts to gain tax revenue that had been lost to unlicensed retailers and to limit sale of tobacco products to minors, pursuant to state legislation (codified at Me. Rev. Stat. Ann. tit. 22, §§ 1551, 1555-C, and 1555-D (2007)). The legislation directed licensed mail-order retailers to use only delivery services that would ensure that the parties to whom tobacco products are delivered are indeed the purchasers and are of an age to purchase tobacco products legally. Delivery services in Maine are also prohibited from knowingly delivering tobacco products from unlicensed retailers (where knowledge is imputed based on markings on packages or the inclusion of retailers on a list of unlicensed retailers maintained by the state).
The Transport Association and other associations of air and motor carriers challenged the legislation on grounds that it was preempted by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"). The FAAA prohibits states from enacting laws "related to a price, route, or
service" of a carrier. 49 U.S.C. §§ 14501(c) & 41713(b)(4)(A). The Maine Attorney General argued that Maine's effort to control access by minors to tobacco products was designed to address health and safety concerns, rather than to impose additional economic regulation, and should therefore not be seen as preempted.
The First Circuit concluded that the FAAAA applied, notwithstanding Maine's police power argument. The court also concluded that key aspects of the Maine legislation were "related to" carrier services and had a significant impact on those services. While Maine could punish knowing transportation of contraband tobacco or delivery of prohibited products to minors with actual knowledge, other features of the legislation was preempted. The First Circuit opinion is available at N.H. Motor Transp. Ass'n v. Rowe, 448 F.3d 66 (1st Cir. 2006).
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