OPINION OF THE COURT
ALTRIA GROUP, INC. V. GOOD
555 U. S. ____ (2008)
SUPREME COURT OF THE UNITED STATES
NO. 07-562
ALTRIA GROUP, INC., et al., PETITIONERS
v. STEPHANIE GOOD et al.
on writ of certiorari to the united states court of
appeals for the first circuit
[December 15, 2008]
Justice Stevens delivered the
opinion of the Court.
Respondents, who have for over 15
years smoked “light” cigarettes manufactured by petitioners, Philip
Morris USA, Inc., and its parent company, Altria Group, Inc., claim
that petitioners violated the Maine Unfair Trade Practices Act
(MUTPA). Specifically, they allege that petitioners’ advertising
fraudulently conveyed the message that their “light” cigarettes
deliver less tar and nicotine to consumers than regular brands
despite petitioners’ knowledge that the message was untrue.
Petitioners deny the charge, asserting that their advertisements
were factually accurate. The merits of the dispute are not before
us because the District Court entered summary judgment in favor of
petitioners on the ground that respondents’ state-law claim is
pre-empted by the Federal Cigarette Labeling and Advertising Act,
as amended (Labeling Act). The Court of Appeals reversed that
judgment, and we granted certiorari to review its holding that the
Labeling Act neither expressly nor impliedly pre-empts respondents’
fraud claim. We affirm.
I
Respondents are Maine residents
and longtime smokers of Marlboro Lights and Cambridge Lights
cigarettes, which are manufactured by petitioners. Invoking the
diversity jurisdiction of the Federal District Court, respondents
filed a complaint alleging that petitioners deliberately deceived
them about the true and harmful nature of “light” cigarettes in
violation of the MUTPA, Me. Rev. Stat. Ann., Tit. 5, §207 (Supp.
2008).[
Footnote 1] Respondents
claim that petitioners fraudulently marketed their cigarettes as
being “light” and containing “ ‘[l]owered [t]ar and
[n]icotine’ ” to convey to consumers that they deliver less
tar and nicotine and are therefore less harmful than regular
cigarettes. App. 28a–29a.
Respondents acknowledge that
testing pursuant to the Cambridge Filter Method[
Footnote 2] indicates that tar and nicotine
yields of Marlboro Lights and Cambridge Lights are lower than those
of regular cigarettes.
Id., at 30a. Respondents allege,
however, that petitioners have known at all relevant times that
human smokers unconsciously engage in compensatory behaviors not
registered by Cambridge Filter Method testing that negate the
effect of the tar- and nicotine-reducing features of “light”
cigarettes.
Id., at 30a–31a. By covering filter
ventilation holes with their lips or fingers, taking larger or more
frequent puffs, and holding the smoke in their lungs for a longer
period of time, smokers of “light” cigarettes unknowingly inhale as
much tar and nicotine as do smokers of regular cigarettes.
Ibid. “Light” cigarettes are in fact more harmful because
the increased ventilation that results from their unique design
features produces smoke that is more mutagenic per milligram of tar
than the smoke of regular cigarettes.
Id., at 31a–32a.
Respondents claim that petitioners violated the MUTPA by
fraudulently concealing that information and by affirmatively
representing, through the use of “light” and “lowered tar and
nicotine” descriptors, that their cigarettes would pose fewer
health risks.
Id., at 32a, 33a.
Petitioners moved for summary judgment on the
ground that the Labeling Act, 15 U. S. C. §1334(b), expressly
pre-empts respondents’ state-law cause of action. Relying on our
decisions in
Cipollone v.
Liggett Group, Inc.,
505
U. S. 504 (1992), and
Lorillard Tobacco Co. v.
Reilly,
533 U. S. 525 (2001), the District
Court concluded that respondents’ MUTPA claim is pre-empted. The
court recast respondents’ claim as a failure-to-warn or warning
neutralization claim of the kind pre-empted in
Cipollone:
The claim charges petitioners with “produc[ing] a product it knew
contained hidden risks … not apparent or known to the consumer”—a
claim that “runs to what [petitioners] actually said about Lights
and what [respondents] claim they should have said.” 436
F. Supp. 2d 132, 151 (Me. 2006). And the difference between
what petitioners said and what respondents would have them say is
“ ‘intertwined with the concern about cigarette smoking and
health.’ ”
Id., at 153 (quoting
Reilly, 533
U. S., at 548). The District Court thus concluded that respondents’
claim rests on a state-law requirement based on smoking and health
of precisely the kind that §1334(b) pre-empts, and it granted
summary judgment for petitioners.
Respondents appealed, and the Court of Appeals
reversed. The Court of Appeals first rejected the District Court’s
characterization of respondents’ claim as a warning neutralization
claim akin to the pre-empted claim in
Cipollone. 501
F. 3d 29, 37, 40 (CA1 2007). Instead, the court concluded that
respondents’ claim is in substance a fraud claim that alleges that
petitioners falsely represented their cigarettes as “light” or
having “lowered tar and nicotine” even though they deliver to
smokers the same quantities of those components as do regular
cigarettes.
Id., at 36. “The fact that these alleged
misrepresentations were unaccompanied by additional statements in
the nature of a warning does not transform the claimed fraud into
failure to warn” or warning neutralization.
Id., at 42–43.
Finding respondents’ claim indistinguishable from the
non-pre-empted fraud claim at issue in
Cipollone, the
Court of Appeals held that it is not expressly pre-empted. The
court also rejected petitioners’ argument that respondents’ claim
is impliedly pre-empted because their success on that claim would
stand as an obstacle to the purported policy of the FTC allowing
the use of descriptive terms that convey Cambridge Filter Method
test results. Accordingly, it reversed the judgment of the District
Court.
In concluding that respondents’ claim is not
expressly pre-empted, the Court of Appeals considered and rejected
the Fifth Circuit’s reasoning in a similar case. 501 F. 3d, at
45. Unlike the court below, the Fifth Circuit likened the
plaintiffs’ challenge to the use of “light” descriptors to
Cipollone’s warning neutralization claim and thus found it
expressly pre-empted.
Brown v.
Brown & Williamson
Tobacco Corp., 479 F. 3d 383, 392–393 (2007). We granted
the petition for certiorari to resolve this apparent conflict. 552
U. S. ___ (2008).
II
Article VI, cl. 2, of the
Constitution provides that the laws of the United States “shall be
the supreme Law of the Land; . . . any Thing in the Constitution or
Laws of any state to the Contrary notwithstanding.” Consistent with
that command, we have long recognized that state laws that conflict
with federal law are “without effect.”
Maryland v.
Louisiana, 451 U. S. 725, 746
(1981).
Our inquiry into the scope of a
statute’s pre-emptive effect is guided by the rule that
“ ‘[t]he purpose of Congress is the ultimate touchstone’ in
every pre-emption case.”
Medtronic, Inc. v.
Lohr,
518 U. S. 470,
485 (1996) (quoting
Retail Clerks v.
Schermerhorn, 375 U. S. 96, 103
(1963)). 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
(1977). If a federal law contains an express pre-emption clause, it
does not immediately end the inquiry because the question of the
substance and scope of Congress’ displacement of state law still
remains. Pre-emptive intent may also be inferred if the scope of
the statute indicates that Congress intended federal law to occupy
the legislative field, or if there is an actual conflict between
state and federal law.
Freightliner Corp. v.
Myrick,
514
U. S. 280, 287 (1995).
When addressing questions of
express or implied pre-emption, we begin our analysis “with the
assumption that the historic police powers of the States [are] not
to be superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.”
Rice v.
Santa Fe
Elevator Corp., 331 U. S. 218, 230
(1947). That assumption applies with particular force when Congress
has legislated in a field traditionally occupied by the States.
Lohr, 518 U. S., at 485; see also
Reilly, 533 U.
S., at 541–542 (“Because ‘federal law is said to bar state action
in [a] fiel[d] of traditional state regulation,’ namely,
advertising, we ‘wor[k] on the assumption that the historic police
powers of the States [a]re not to be superseded by the Federal Act
unless that [is] the clear and manifest purpose of Congress’ ”
(citation omitted)). Thus, when the text of a 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
(2005).
Congress enacted the Labeling Act
in 1965[
Footnote 3] in response
to the Surgeon General’s determination that cigarette smoking is
harmful to health. The Act required that every package of
cigarettes sold in the United States contain a conspicuous warning,
and it pre-empted state-law positive enactments that added to the
federally prescribed warning. 79 Stat. 283. Congress amended the
Labeling Act a few years later by enacting the Public Health
Cigarette Smoking Act of 1969.[
Footnote 4] The amendments strengthened the language of
the prescribed warning, 84 Stat. 88, and prohibited cigarette
advertising in “any medium of electronic communication subject to
[FCC] jurisdiction,”
id., at 89. They also broadened the
Labeling Act’s pre-emption provision. See
Cipollone, 505
U. S., at 520 (plurality opinion) (discussing the difference in
scope of the pre-emption clauses of the 1965 and 1969 Acts). The
Labeling Act has since been amended further to require cigarette
manufacturers to include four more explicit warnings in their
packaging and advertisements on a rotating basis.[
Footnote 5]
The stated purpose of the Labeling Act is
“to establish a comprehensive Federal program to
deal with cigarette labeling and advertising with respect to any
relationship between smoking and health, whereby—
“(1) the public may be adequately informed
that cigarette smoking may be hazardous to health by inclusion of a
warning to that effect on each package of cigarettes; and
“(2) commerce and the national economy may be
(A) protected to the maximum extent consistent with this declared
policy and (B) not impeded by diverse, nonuniform, and confusing
cigarette labeling and advertising regulations with respect to any
relationship between smoking and health.” 79 Stat. 282, 15 U.
S. C. §1331.
The requirement that cigarette manufacturers
include in their packaging and advertising the precise warnings
mandated by Congress furthers the Act’s first purpose. And the
Act’s pre-emption provisions promote its second purpose.
As amended, the Labeling Act contains two
express pre-emption provisions. Section 5(a) protects cigarette
manufacturers from inconsistent state labeling laws by prohibiting
the requirement of additional statements relating to smoking and
health on cigarette packages. 15 U. S. C. §1334(a). Section
5(b), which is at issue in this case, 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.” §1334(b).
Together, the labeling requirement and
pre-emption provisions express Congress’ determination that the
prescribed federal warnings are both necessary and sufficient to
achieve its purpose of informing the public of the health
consequences of smoking. Because Congress has decided that no
additional warning statement is needed to attain that goal, States
may not impede commerce in cigarettes by enforcing rules that are
based on an assumption that the federal warnings are inadequate.
Although both of the Act’s purposes are furthered by prohibiting
States from supplementing the federally prescribed warning, neither
would be served by limiting the States’ authority to prohibit
deceptive statements in cigarette advertising. Petitioners
acknowledge that “Congress had no intention of insulating tobacco
companies from liability for inaccurate statements about the
relationship between smoking and health.” Brief for Petitioners 28.
But they maintain that Congress could not have intended to permit
the enforcement of
state fraud rules because doing so
would defeat the Labeling Act’s purpose of preventing nonuniform
state warning requirements. 15 U. S. C. §1331.[
Footnote 6] As we observed in
Cipollone, however, fraud claims “rely only on a single,
uniform standard: falsity.” 505 U. S., at 529 (plurality
opinion).
Although it is clear that fidelity to the
Act’s purposes does not demand the pre-emption of state fraud
rules, the principal question that we must decide is whether the
text of §1334(b) nevertheless requires that result.
III
We have construed the operative
phrases of §1334(b) in two prior cases:
Cipollone,
505
U. S. 504, and
Reilly,
533 U. S. 525. On both occasions we
recognized that the phrase “based on smoking and health” modifies
the state-law rule at issue rather than a particular application of
that rule.
In
Cipollone, the plurality, which
consisted of Chief Justice Rehnquist and Justices White, O’Connor,
and Stevens, read the pre-emption provision in the 1969 amendments
to the Labeling Act to pre-empt common-law rules as well as
positive enactments. Unlike Justices Blackmun, Kennedy, and Souter,
the plurality concluded that the provision does not preclude all
common-law claims that have some relationship to smoking and
health. 505 U. S., at 521–523. To determine whether a particular
common-law claim is pre-empted, the plurality inquired “whether the
legal duty that is the predicate of the common-law damages action
constitutes a ‘requirement or prohibition based on smoking and
health … with respect to … advertising or promotion,’ giving that
clause a fair but narrow reading.”
Id., at 524.
Applying this standard, the plurality held
that the plaintiff’s claim that cigarette manufacturers had
fraudulently misrepresented and concealed a material fact was not
pre-empted. That claim alleged a violation of the manufacturers’
duty not to deceive—a duty that is not “based on” smoking and
health.
Id., at 528–529. Respondents in this case also
allege a violation of the duty not to deceive as that duty is
codified in the MUTPA. The duty codified in that state statute,
like the duty imposed by the state common-law rule at issue in
Cipollone, has nothing to do with smoking and
health.[
Footnote 7]
Petitioners endeavor to distance
themselves from that holding by arguing that respondents’ claim is
more analogous to the “warning neutralization” claim found to be
pre-empted in
Cipollone. Although the plurality understood
the plaintiff to have presented that claim as a “theory of
fraudulent misrepresentation,”
id., at 528, the gravamen
of the claim was the defendants’ failure to warn, as it was
“predicated on a state-law prohibition against statements in
advertising and promotional materials that tend to minimize the
health hazards associated with smoking,”
id., at 527. Thus
understood, the
Cipollone plurality’s analysis of the
warning neutralization claim has no application in this
case.[
Footnote 8]
Petitioners nonetheless contend that
respondents’ claim is like the pre-empted warning neutralization
claim because it is based on statements that “might create a false
impression” rather than statements that are “inherently false.”
Brief for Petitioners 39. But the extent of the falsehood alleged
does not alter the nature of the claim. Nothing in the Labeling
Act’s text or purpose or in the plurality opinion in
Cipollone suggests that whether a claim is pre-empted
turns in any way on the distinction between misleading and
inherently false statements. Petitioners’ misunderstanding is the
same one that led the Court of Appeals for the Fifth Circuit, when
confronted with a “light” descriptors claim, to reach a result at
odds with the Court of Appeals’ decision in this case. See
Brown, 479 F. 3d, at 391–393. Certainly, the extent
of the falsehood alleged may bear on whether a plaintiff can prove
her fraud claim, but the merits of respondents’ claim are not
before us.
Once that erroneous distinction is set aside,
it is clear that our holding in
Cipollone that the
common-law fraud claim was not pre-empted is directly applicable to
the statutory claim at issue in this case. As was true of the claim
in
Cipollone, respondents’ claim that the deceptive
statements “light” and “lowered tar and nicotine” induced them to
purchase petitioners’ product alleges a breach of the duty not to
deceive.[
Footnote 9] To be
sure, the presence of the federally mandated warnings may bear on
the materiality of petitioners’ allegedly fraudulent statements,
“but that possibility does not change [respondents’] case from one
about the statements into one about the warnings.” 501 F. 3d,
at 44.[
Footnote 10]
Our decision in
Reilly is consistent
with
Cipollone’s analysis.
Reilly involved
regulations promulgated by the Massachusetts attorney general
“ ‘in order to address the incidence of cigarette smoking and
smokeless tobacco use by children under legal age … [and] in order
to prevent access to such products by underage customers.’ ”
533 U. S., at 533 (quoting 940 Code Mass. Regs. §21.01 (2000)). The
regulations did not pertain to the content of any advertising;
rather, they placed a variety of restrictions on certain cigarette
sales and the location of outdoor and point-of-sale cigarette
advertising. The attorney general promulgated those restrictions
pursuant to his statutory authority to prevent unfair or deceptive
trade practices. Mass. Gen. Laws, ch. 93A, §2 (West 1996). But
although the attorney general’s authority derived from a general
deceptive practices statute like the one at issue in this case, the
challenged regulations targeted advertising that tended to promote
tobacco use by children instead of prohibiting false or misleading
statements. Thus, whereas the “prohibition” in
Cipollone
was the common-law fraud rule, the “prohibitions” in
Reilly were the targeted regulations. Accordingly, our
holding in
Reilly that the regulations were pre-empted
provides no support for an argument that a general prohibition of
deceptive practices is “based on” the harm caused by the specific
kind of deception to which the prohibition is applied in a given
case.
It is true, as petitioners argue, that the
appeal of their advertising is based on the relationship between
smoking and health. And although respondents have expressly
repudiated any claim for damages for personal injuries, see App.
26a, their actual injuries likely encompass harms to health as well
as the monetary injuries they allege. These arguments are
unavailing, however, because the text of §1334(b) does not refer to
harms related to smoking and health. Rather, it pre-empts
only
requirements and prohibitions—
i.e.,
rules—that are based on smoking and health. The MUTPA says nothing
about either “smoking” or “health.” It is a general rule that
creates a duty not to deceive and is therefore unlike the
regulations at issue in
Reilly.[
Footnote 11]
Petitioners argue in the alternative that we
should reject the express pre-emption framework established by the
Cipollone plurality and relied on by the Court in
Reilly. In so doing, they invoke the reasons set forth in
the separate opinions of Justice Blackmun (who especially
criticized the plurality’s holding that the failure-to-warn claim
was pre-empted) and Justice Scalia (who argued that the fraud claim
also should be pre-empted). While we again acknowledge that our
analysis of these claims may lack “theoretical elegance,” we remain
persuaded that it represents “a fair understanding of congressional
purpose.”
Cipollone, 505 U. S., at 529–530, n. 27
(plurality opinion).
Petitioners also contend that the plurality
opinion is inconsistent with our decisions in
American
Airlines, Inc. v.
Wolens,
513 U. S. 219 (1995),
and
Riegel v.
Medtronic, Inc., 552 U. S. ___
(2008). Both cases, however, are inapposite—the first because it
involved a pre-emption provision much broader than the Labeling
Act’s, and the second because it involved precisely the type of
state rule that Congress had intended to pre-empt.
At issue in
Wolens was the
pre-emptive effect of the Airline Deregulation Act of 1978 (ADA),
49 U. S. C. App. §1305(a)(1) (1988 ed.), which
prohibits States from enacting or enforcing any law “relating to
rates, routes, or services of any air carrier.” The plaintiffs in
that case sought to bring a claim under the Illinois Consumer Fraud
and Deceptive Business Practices Act, Ill. Comp. Stat., ch. 815,
§505 (West 1992). Our conclusion that the state-law claim was
pre-empted turned on the unusual breadth of the ADA’s pre-emption
provision. We had previously held that the meaning of the key
phrase in the ADA’s pre-emption provision, “ ‘
relating
to rates, routes, or services,’ ” is a broad one.
Morales v.
Trans World Airlines, Inc.,
504 U. S. 374, 383–384
(1992) (emphasis added). Relying on precedents construing the
pre-emptive effect of the same phrase in the Employee Retirement
Income Security Act of 1974, 29 U. S. C. §1144(a), we
concluded that the phrase “relating to” indicates Congress’ intent
to pre-empt a large area of state law to further its purpose of
deregulating the airline industry. 504 U. S., at 383–384.[
Footnote 12] Unquestionably, the
phrase “relating to” has a broader scope than the Labeling Act’s
reference to rules “based on” smoking and health; whereas “relating
to” is synonymous with “having a connection with,”
id., at
384, “based on” describes a more direct relationship, see
Safeco Ins. Co. of America v.
Burr, 551 U. S.
___, ___ (2007) (slip op., at 13) (“In common talk, the phrase
‘based on’ indicates a but-for causal relationship and thus a
necessary logical condition”).
Petitioners’ reliance on
Riegel is
similarly misplaced. The plaintiffs in
Riegel sought to
bring common-law design, manufacturing, and labeling defect claims
against the manufacturer of a faulty catheter. The case presented
the question whether those claims were expressly pre-empted by the
Medical Device Amendments of 1976 (MDA), 21 U. S. C. §360c
et seq. The MDA’s pre-emption clause provides that no
State “ ‘may establish or continue in effect with respect to a
device … any requirement’ relating to safety or effectiveness that
is different from, or in addition to, federal requirements.”
Riegel, 552 U. S., at ___ (slip op., at 14) (quoting 21 U.
S. C. §360k(a); emphasis deleted).
The catheter at issue in
Riegel had
received premarket approval from the Food and Drug Administration
(FDA). We concluded that premarket approval imposes “requirement[s]
relating to safety [and] effectiveness” because the FDA requires a
device that has received premarket approval to be made with almost
no design, manufacturing, or labeling deviations from the
specifications in its approved application. The plaintiffs’
products liability claims fell within the core of the MDA’s
pre-emption provision because they sought to impose different
requirements on precisely those aspects of the device that the FDA
had approved. Unlike the
Cipollone plaintiff’s fraud
claim, which fell outside of the Labeling Act’s pre-emptive reach
because it did not seek to impose a prohibition “based on smoking
and health,” the
Riegel plaintiffs’ common-law products
liability claims unquestionably sought to enforce “requirement[s]
relating to safety or effectiveness” under the MDA. That the
“relating to” language of the MDA’s pre-emption provision is, like
the ADA’s, much broader than the operative language of the Labeling
Act provides an additional basis for distinguishing
Riegel. Thus, contrary to petitioners’ suggestion,
Riegel is entirely consistent with our holding in
Cipollone.
In sum, we conclude now, as the plurality did
in
Cipollone, that “the phrase ‘based on smoking and
health’ fairly but narrowly construed does not encompass the more
general duty not to make fraudulent statements.” 505 U. S., at
529.
IV
As an alternative to their
express pre-emption argument, petitioners contend that respondents’
claim is impliedly pre-empted because, if allowed to proceed, it
would present an obstacle to a longstanding policy of the FTC.
According to petitioners, the FTC has for decades promoted the
development and consumption of low tar cigarettes and has
encouraged consumers to rely on representations of tar and nicotine
content based on Cambridge Filter Method testing in choosing among
cigarette brands. Even if such a regulatory policy could provide a
basis for obstacle pre-emption, petitioners’ description of the
FTC’s actions in this regard are inaccurate. The Government itself
disavows any policy authorizing the use of “light” and “low tar”
descriptors. Brief for United States as
Amicus Curiae
16–33.
In 1966, following the
publication of the Surgeon General’s report on smoking and health,
the FTC issued an industry guidance stating its view that “a
factual statement of the tar and nicotine content (expressed in
milligrams) of the mainstream smoke from a cigarette,” as measured
by Cambridge Filter Method testing, would not violate the FTC Act.
App. 478a. The Commission made clear, however, that the guidance
applied only to factual assertions of tar and nicotine yields and
did not invite “collateral representations … made, expressly or by
implication, as to reduction or elimination of health hazards.”
Id., at 479a. A year later, the FTC reiterated its
position in a letter to the National Association of Broadcasters.
The letter explained that, as a “general rule,” the Commission
would not challenge statements of tar and nicotine content when
“they are shown to be accurate and fully substantiated by tests
conducted in accordance with the [Cambridge Filter Method].”
Id., at 368a. In 1970, the FTC considered providing
further guidance, proposing a rule that would have required
manufacturers to disclose tar and nicotine yields as measured by
Cambridge Filter Method testing. 35 Fed. Reg. 12671. The leading
cigarette manufacturers responded by submitting a voluntary
agreement under which they would disclose tar and nicotine content
in their advertising, App. 899a–900a, and the FTC suspended its
rulemaking, 36 Fed. Reg. 784 (1971).
Based on these events, petitioners assert that
“the FTC has
required tobacco companies to disclose tar
and nicotine yields in cigarette advertising using a
government-mandated testing methodology and has
authorized
them to use descriptors as shorthand references to those numerical
test results.” Brief for Petitioners 2 (emphasis in original). As
the foregoing history shows, however, the FTC has in fact never
required that cigarette manufacturers disclose tar and nicotine
yields, nor has it condoned representations of those yields through
the use of “light” or “low tar” descriptors.
Subsequent Commission actions further
undermine petitioners’ claim. After the tobacco companies agreed to
report tar and nicotine yields as measured by the Cambridge Filter
Method, the FTC continued to police cigarette companies’ misleading
use of test results. In 1983, the FTC responded to findings that
tar and nicotine yields for Barclay cigarettes obtained through
Cambridge Filter Method testing were deceptive because the
cigarettes in fact delivered disproportionately more tar to smokers
than other cigarettes with similar Cambridge Filter Method ratings.
48 Fed. Reg. 15954. And in 1995, the FTC found that a
manufacturer’s representation “that consumers will get less tar by
smoking ten packs of Carlton brand cigarettes than by smoking a
single pack of the other brands” was deceptive even though it was
based on the results of Cambridge Filter Method testing.
In re American Tobacco Co., 119 F. T. C. 3, 4.
The FTC’s conclusion was based on its recognition that, “[i]n truth
and in fact, consumers will not necessarily get less tar” due to
“such behavior as compensatory smoking.”
Ibid.[Footnote 13]
This history shows that, contrary to
petitioners’ suggestion, the FTC has no longstanding policy
authorizing collateral representations based on Cambridge Filter
Method test results. Rather, the FTC has endeavored to inform
consumers of the comparative tar and nicotine content of different
cigarette brands and has in some instances prevented misleading
representations of Cambridge Filter Method test results. The FTC’s
failure to require petitioners to correct their allegedly
misleading use of “light” descriptors is not evidence to the
contrary; agency nonenforcement of a federal statute is not the
same as a policy of approval. Cf.
Sprietsma v.
Mercury
Marine,
537 U.
S. 51 (2002) (holding that the Coast Guard’s decision not to
regulate propeller guards did not impliedly pre-empt petitioner’s
tort claims).[
Footnote
14]
More telling are the FTC’s recent statements
regarding the use of “light” and “low tar” descriptors. In 1997,
the Commission observed that “[t]here are no official definitions
for” the terms “light” and “low tar,” and it sought comments on
whether “there [is] a need for official guidance with respect to
the terms” and whether “the descriptors convey implied health
claims.” 62 Fed. Reg. 48163. In November 2008, following public
notice and comment, the Commission rescinded its 1966 guidance
concerning the Cambridge Filter Method. 73 Fed. Reg. 74500. The
rescission is a response to “a consensus among the public health
and scientific communities that the Cambridge Filter method is
sufficiently flawed that statements of tar and nicotine yields as
measured by that method are not likely to help consumers make
informed decisions.”
Id., at 74503. The Commission’s
notice of its proposal to rescind the guidance also reiterated the
original limits of that guidance, noting that it “only addresse[d]
simple factual statements of tar and nicotine yields. It d[id] not
apply to other conduct or express or implied representations, even
if they concern[ed] tar and nicotine yields.”
Id., at
40351.
In short, neither the handful of industry
guidances and consent orders on which petitioners rely nor the
FTC’s inaction with regard to “light” descriptors even arguably
justifies the pre-emption of state deceptive practices rules like
the MUTPA.
V
We conclude, as we did in
Cipollone, that the Labeling Act does not pre-empt
state-law claims like respondents’ that are predicated on the duty
not to deceive. We also hold that the FTC’s various decisions with
respect to statements of tar and nicotine content do not impliedly
pre-empt respondents’ claim. Respondents still must prove that
petitioners’ use of “light” and “lowered tar” descriptors in fact
violated the state deceptive practices statute, but neither the
Labeling Act’s pre-emption provision nor the FTC’s actions in this
field prevent a jury from considering that claim. Accordingly, the
judgment of the Court of Appeals is affirmed, and the case is
remanded for further proceedings consistent with this opinion.
It is so ordered.
Footnote 1
The MUTPA provides, as relevant, that
“[u]nfair methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce are declared
unlawful.” §207. In construing that section, courts are to “be
guided by the interpretations given by the Federal Trade Commission
and the Federal Courts to Section 45(a)(1) of the Federal Trade
Commission Act (15 United States Code 45(a)(1)), as from time to
time amended.” §207(1).
Footnote 2
The Cambridge Filter Method weighs and
measures the tar and nicotine collected by a smoking machine that
takes 35 milliliter puffs of two seconds’ duration every 60 seconds
until the cigarette is smoked to a specified butt length. App.
294a, 668a. As discussed below, the Federal Trade Commission (FTC
or Commission) signaled in 1966 that the Cambridge Filter Method
was an acceptable means of measuring the tar and nicotine content
of cigarettes, but it never required manufacturers to publish test
results in their advertisements.
Footnote 3
79 Stat. 282.
Footnote 4
Pub. L. 91–222, 84 Stat. 87. Though actually
enacted in 1970, Congress directed that it be cited as a “1969
Act.”
Footnote 5
Comprehensive Smoking Education Act, Pub. L.
98–474, §4(a), 98 Stat. 2201, 15 U. S. C. §1333(a).
Footnote 6
Petitioners also urge us to find support for
their claim that Congress gave the FTC exclusive authority to
police deceptive health-related claims in cigarette advertising in
what they refer to as the Labeling Act’s “saving clause.” The
clause provides that, apart from the warning requirement, nothing
in the Act “shall be construed to limit, restrict, expand, or
otherwise affect the authority of the Federal Trade Commission with
respect to unfair or deceptive acts or practices in the advertising
of cigarettes.” §1336. A plurality of this Court has previously
read this clause to “indicat[e] that Congress intended the phrase
‘relating to smoking and health’ … to be construed narrowly, so as
not to proscribe the regulation of deceptive advertising.”
Cipollone v.
Liggett Group, Inc.,
505
U. S. 504, 528–529 (1992). Nothing in the clause suggests that
Congress meant to proscribe the States’ historic regulation of
deceptive advertising practices. The FTC has long depended on
cooperative state regulation to achieve its mission because,
although one of the smallest administrative agencies, it is charged
with policing an enormous amount of activity. See 1 S. Kanwit,
Federal Trade Commission §§1:1, 1:2 (2004 ed. and Supp. 2008).
Moreover, when the Labeling Act was amended in 1969 it was not even
clear that the FTC possessed rulemaking authority, see 84 Stat. 89,
making it highly unlikely that Congress would have intended to
assign exclusively to the FTC the substantial task of overseeing
deceptive practices in cigarette advertisements.
Footnote 7
In his dissent, Justice Thomas criticizes our
reliance on the plurality opinion in
Cipollone,
post, at 6–8, 14–19, 22, and advocates adopting the
analysis set forth by Justice Scalia in his opinion concurring in
the judgment in part and dissenting in part in that case,
post, at 3–6, 19–21. But Justice Scalia’s approach was
rejected by seven Members of the Court, and in the almost 17 years
since
Cipollone was decided Congress has done nothing to
indicate its approval of that approach. Moreover, Justice Thomas
fails to explain why Congress would have intended the result that
Justice Scalia’s approach would produce—namely, permitting
cigarette manufacturers to engage in fraudulent advertising. As a
majority of the Court concluded in
Cipollone, nothing in
the Labeling Act’s language or purpose supports that result.
Footnote 8
The
Cipollone plurality further
stated that the warning neutralization claim was “merely the
converse of a state-law
requirement that warnings be
included in advertising and promotional materials,” 505 U. S., at
527, evincing the plurality’s recognition that warning
neutralization and failure-to-warn claims are two sides of the same
coin. Justice Thomas’ criticism of the plurality’s treatment of the
failure-to-warn claim,
post, at 16, is beside the point,
as no such claim is at issue in this litigation.
Footnote 9
As the Court of Appeals observed,
respondents’ allegations regarding petitioners’ use of the
statements “light” and “lowered tar and nicotine” could also
support a warning neutralization claim. But respondents did not
bring such a claim, and the fact that they could have does not, as
petitioners suggest, elevate form over substance. There is nothing
new in the recognition that the same conduct might violate multiple
proscriptions.
Footnote 10
Justice Thomas contends that respondents’
fraud claim must be pre-empted because “[a] judgment in [their]
favor will … 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.”
Post, at
3. He further asserts that “respondents seek to
require
the cigarette manufacturers to provide additional warnings about
compensatory behavior, or to
prohibit them from selling
these products with the ‘light’ or ‘low-tar’ descriptors.”
Post, at 20. But this mischaracterizes the relief
respondents seek. If respondents prevail at trial, petitioners will
be prohibited from selling as “light” or “low tar” only those
cigarettes that are not actually light and do not actually deliver
less tar and nicotine. Barring intervening federal regulation,
petitioners would remain free to make nonfraudulent use of the
“light” and “low-tar” descriptors.
Footnote 11
In implementing the MUTPA, neither the state
legislature nor the state attorney general has enacted a set of
special rules or guidelines targeted at cigarette advertising. As
we noted in
Cipollone, it was the threatened enactment of
new state warning requirements rather than the enforcement of
pre-existing general prohibitions against deceptive practices that
prompted congressional action in 1969. 505 U. S., at 515, and
n. 11.
Footnote 12
Petitioners also point to
Morales as
evidence that our decision in
Cipollone was wrong. But
Morales predated
Cipollone, and it is in any
event even more easily distinguishable from this case than
American Airlines, Inc. v.
Wolens, 513 U. S.219
(1995). At issue in
Morales were guidelines regarding the
form and substance of airline fare advertising implemented by the
National Association of Attorneys General to give content to state
deceptive practices rules. 504 U. S., at 379. Like the regulations
at issue in
Reilly, the guidelines were industry-specific
directives that targeted the subject matter made off-limits by the
ADA’s express pre-emption provisions. See also
Rowe v.
New Hampshire Motor Transp. Assn., 552 U. S. ___ (2008)
(holding that targeted ground carrier regulations were pre-empted
by a statute modeled on the ADA).
Footnote 13
In a different action, the FTC charged a
cigarette manufacturer with violating the FTC Act by misleadingly
advertising certain brands as “low in tar” even though they had a
higher-than-average tar rating. See
In re American Brands,
Inc., 79 F. T. C. 255 (1971). The Commission and the
manufacturer entered a consent order that prevented the
manufacturer from making any such representations unless they were
accompanied by a clear and conspicuous disclosure of the
cigarettes’ tar and nicotine content as measured by the Cambridge
Filter Method.
Id., at 258. Petitioners offer this consent
order as evidence that the FTC authorized the use of “light” and
“low tar” descriptors as long as they accurately describe Cambridge
Filter Method test results. As the Government observes, however,
the decree only enjoined conduct. Brief for United States as
Amicus Curiae 26. And a consent order is in any event only
binding on the parties to the agreement. For all of these reasons,
the consent order does not support the conclusion that respondents’
claim is impliedly pre-empted.
Footnote 14
It seems particularly inappropriate to read a
policy of authorization into the FTC’s inaction when that inaction
is in part the result of petitioners’ failure to disclose study
results showing that Cambridge Filter Method test results do not
reflect the amount of tar and nicotine that consumers of “light”
cigarettes actually inhale. See
id., at 8–11.
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