Altria Group v. Good and Preemption

The U.S. Supreme Court heard oral arguments today in Altria Group v. Good, in which the petitioners Phillip Morris USA and its parent company Altria appealed a First Circuit ruling that federal law and practice did not preempt a state deceptive trade practices claim.

The plaintiffs, smokers of "light" cigarettes, brought their case against petitioners under Maine's Unfair Trade Practices Act, claiming that Phillip Morris had falsely represented some of its brands as "light."  The petitioners claimed that the Federal Cigarette Labeling and Advertising Act (FCLAA) expressly preempted plaintiffs' state law claim and that Federal Trade Commission (FTC) oversight and practice implicitly preempted the plaintiffs' claim.  (Petitioners all but gave up on their implicit preemption defense after the federal government intervened and argued that the FTC did not view the lawsuit as undermining its policies.)

The FCLAA preemption provision states 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." (Emphasis added.)  In the language of the First Circuit, the express preemption issue thus turned on whether plaintiffs "indeed alleged fraudulent misrepresentation claims" not "based on smoking and health" (which are therefore not preempted), or whether they "in reality alleged failure-to-warn or warning neutralization claims" (i.e., claims "based on smoking and health," which are therefore preempted).  The First Circuit ruled in favor of plaintiffs.

The case offers plenty of fodder for a class or exercises on federal preemption.  Start with a quick review of the facts:  Lyle Denniston previewed the case on the SCOTUS Blog here; Adam Liptak's story in the New York Times is here.  The oral argument covered mostly predictable ground; the Q&A with the plaintiff-respondents' (at pages 23 to 41) may be most useful to zero in on the issues around express preemption.  After reviewing this material, you might ask your students to draft a complaint on behalf of plaintiffs to avoid express preemption and to dodge some of the issues at oral argument.  (I haven't been able to track down the complaint.  I'll post it when I do.)  With the benefit of the argument transcript, can they do better than the attorneys in the case?  You might ask them then to switch sides and answer questions directed at the petitioners (at pages 3 to 23 of the transcript).  How do they match up against Theodore Olson's actual answers?

Finally, you may wish to assign the outstanding amicus brief filed on behalf of constitutional and administrative law scholars.  As you might expect, it provides an excellent forest (not trees) view of the case and an outstanding review of preemption principles.

SDS