OCTOBER TERM, 1991
Syllabus
CIPOLLONE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF
CIPOLLONE
v. LIGGETT GROUP, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 90-1038. Argued October 8, 1991-Reargued January 13,
1992Decided June 24, 1992
Section 4 of the Federal Cigarette Labeling and Advertising Act
(1965 Act) required a conspicuous label warning of smoking's health
hazards to be placed on every package of cigarettes sold in this
country, while § 5 of that Act, captioned "Preemption," provided:
"(a) No statement relating to smoking and health, other than the [§
4] statement ... , shall be required on any cigarette package," and
"(b) No [such] statement ... shall be required in the advertising
of any cigarettes the packages of which are labeled in conformity
with" § 4. Section 5(b) was amended by the Public Health Cigarette
Smoking Act of 1969 (1969 Act) to specify: "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 [lawfully] labeled."
Petitioner's complaint in his action for damages invoked the
District Court's diversity jurisdiction and alleged,
inter
alia, that respondent cigarette manufacturers were responsible
for the 1984 death of his mother, a smoker since 1942, because they
breached express warranties contained in their advertising, failed
to warn consumers about smoking's hazards, fraudulently
misrepresented those hazards to consumers, and conspired to deprive
the public of medical and scientific information about smoking, all
in derogation of duties created by New Jersey law. The District
Court ultimately ruled, among other things, that these claims were
preempted by the 1965 and 1969 Acts to the extent that the claims
relied on respondents' advertising, promotional, and public
relations activities after the effective date of the 1965 Act. The
Court of Appeals affirmed on this point.
Held: The judgment is reversed in part and affirmed in
part, and the case is remanded.
893 F.2d
541, reversed in part, affirmed in part, and remanded.
JUSTICE STEVENS delivered the opinion of the Court with respect
to Parts I, II, III, and IV, concluding that § 5 of the 1965 Act
did not pre-
505
empt state-law damages actions, but superseded only positive
enactments by state and federal rulemaking bodies mandating
particular warnings on cigarette labels or in cigarette
advertisements. This conclusion is required by the section's
precise and narrow prohibition of required cautionary
"statement[s]"; by the strong presumption against pre-emption of
state police power regulations; by the fact that the required § 4
warning does not by its own effect foreclose additional obligations
imposed under state law; by the fact that there is no general,
inherent conflict between federal pre-emption of state warning
requirements and the continued vitality of common-law damages
actions; and by the Act's stated purpose and regulatory context,
which establish that § 5 was passed to prevent a multiplicity of
pending and diverse "regulations," a word that most naturally
refers to positive enactments rather than common-law actions. Pp.
517-520.
JUSTICE STEVENS, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE O'CONNOR, concluded in Parts V and VI that § 5(b) of the
1969 Act pre-empts certain of petitioner's failure-to-warn and
fraudulent misrepresentation claims, but does not pre-empt other
such claims or the claims based on express warranty or conspiracy.
Pp. 520-530.
(a) The broad language of amended § 5(b) extends the section's
preemptive reach beyond positive enactments to include some
common-law damages actions. The statutory phrase "requirement or
prohibition" suggests no distinction between positive enactments
and common law, but, in fact, easily encompasses obligations that
take the form of common-law rules, while the phrase "imposed under
State law" clearly contemplates common law as well as statutes and
regulations. This does not mean, however, that § 5(b) pre-empts all
common-law claims, nor does the statute indicate that any familiar
subdivision of common law is or is not pre-empted. Instead, the
precise language of § 5(b) must be fairly but-in light of the
presumption against pre-emption-narrowly construed, and each of
petitioner's common-law claims must be examined to determine
whether it is in fact pre-empted. The central inquiry in each case
is straightforward: whether the legal duty that is the predicate of
the common-law damages action satisfies § 5(b)'s express terms,
giving those terms a fair but narrow reading. Each phrase within
the section limits the universe of common-law claims pre-empted by
the statute. Pp. 517-524.
(b) Insofar as claims under either of petitioner's
failure-to-warn theories-i.
e., that respondents were
negligent in the manner that they tested, researched, sold,
promoted, and advertised their cigarettes, and that they failed to
provide adequate warnings of smoking's consequences-require a
showing that respondents' post-1969 advertising or
506
Syllabus
promotions should have included additional, or more clearly
stated, warnings, those claims rely on a state-law "requirement or
prohibition ... with respect to ... advertising or promotion"
within § 5(b)'s meaning and are pre-empted. Pp. 524-525.
(c) To the extent that petitioner has a viable claim for breach
of express warranties, that claim is not pre-empted. While the
general duty not to breach such warranties arises under state law,
a manufacturer's liability for the breach derives from, and is
measured by, the terms of the warranty. A common-law remedy for a
contractual commitment voluntarily undertaken should not be
regarded as a "requirement ... imposed under State law" under §
5(b). Pp. 525-527.
(d) Because § 5(b) pre-empts "prohibition[s]" as well as
"requirement[s]," it supersedes petitioner's first
fraudulent-misrepresentation theory, which is predicated on a
state-law prohibition against advertising and promotional
statements tending to minimize smoking's health hazards, and which
alleges that respondents' advertising neutralized the effect of the
federally mandated warning labels. However, the claims based on
petitioner's second fraudulent-misrepresentation theorywhich
alleges intentional fraud both by false representation and
concealment of material facts-are not pre-empted. The concealment
allegations, insofar as they rely on a state-law duty to disclose
material facts through channels of communication other than
advertising and promotions, do not involve an obligation "with
respect to" those activities within § 5(b)'s meaning. Moreover,
those fraudulent-misrepresentation claims that do arise with
respect to advertising and promotions are not predicated on a duty
"based on smoking and health" but rather on a more general
obligation-the duty not to deceive. pp. 527-529.
(e) Petitioner's claim alleging a conspiracy among respondents
to misrepresent or conceal material facts concerning smoking's
health hazards is not pre-empted, since the predicate duty not to
conspire to commit fraud that underlies that claim is not a
prohibition "based on smoking and health" as that § 5(b) phrase is
properly construed. P. 530.
JUSTICE BLACKMUN, joined by JUSTICE KENNEDY and JUSTICE SOUTER,
concluded that the modified language of § 5(b) in the 1969 Act does
not clearly exhibit the necessary congressional intent to preempt
state common-law damages actions, and therefore concurred in the
judgment that certain of petitioner's failure-to-warn and
fraudulentmisrepresentation claims, as well as his express warranty
and conspiracy claims, are not pre-empted by that Act. Pp.
533-534.
JUSTICE SCALIA, joined by JUSTICE THOMAS, concluded that all of
petitioner's common-law claims are pre-empted by the 1969 Act under
ordinary principles of statutory construction, and therefore
concurred in the judgment that certain of his post-1969
failure-to-warn claims
507
and certain of his fraudulent-misrepresentation claims are
pre-empted. P.548.
STEVENS, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, III, and IV,
in which REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, KENNEDY,
and SOUTER, JJ., joined, and an opinion with respect to Parts V and
VI, in which REHNQUIST, C. J., and WHITE and O'CONNOR, JJ., joined.
BLACKMUN, J., filed an opinion concurring in part, concurring in
the judgment in part, and dissenting in part, in which KENNEDY and
SOUTER, JJ., joined,
post, p. 531. SCALIA, J., filed an
opinion concurring in the judgment in part and dissenting in part,
in which THOMAS, J., joined,
post, p. 544.
Laurence H. Tribe reargued the cause for petitioner.
Marc Z. Edell argued the cause for petitioner on the
original argument. With them on the briefs was
Alan M.
Darnell.
H. Bartow Farr III reargued the cause for
respondents.
With him on the briefs was
Richard G.
Taranto.
*
*Briefs of
amici curiae urging reversal were filed for
the State of Minnesota et al. by
Hubert H. Humphrey III,
Attorney General of Minnesota, and
Peter M. Ackerberg,
Special Assistant Attorney General, and by the Attorneys General
for their respective States as follows:
James H. Evans of
Alabama,
Grant Woods of Arizona,
Richard Blumenthal
of Connecticut,
Larry EchoHawk of Idaho,
Michael E.
Carpenter of Maine,
Frankie Sue Del Papa of Nevada,
Robert J. Del Tufo of New Jersey,
Tom
Udall of New Mexico,
Nicholas J. Spaeth of
North Dakota,
Lee Fisher of Ohio, and
Kenneth Q
Eikenberry of Washington; for the American Cancer Society et al. by
Alan B. Morrison, David C.
Vladeck, and
Cornish F.
Hitchcock; for the American College of
Chest Physicians by
Raymond D. Cotton and
Sherman S.
Poland; for the American Medical Association by
Kirk B.
Johnson; for the Association of Trial Lawyers of America by
Jeffrey Robert White and
Michael C.
Maher; for
the National League of Cities et al. by
Richard Ruda; for
Six Former Surgeons General of the United States et al. by S.
Stephen Rosenfeld and
Richard A. Daynard; and for
Trial Lawyers for Public Justice, P.
C., by
Charles
S.
Siegel and
Arthur Bryant.
Briefs of
amici curiae urging affirmance were filed for
the Association of National Advertisers, Inc., by
Burt
Neuborne and
Gilbert H. Weil; for the National
Association of Manufacturers by
Diane L. Zimmerman, Jan S.
Amundson, and
Quentin Riegel; and for the Product
Liability Advisory Council, Inc., by
Kenneth S.
Geller and
Mark I. Levy.
508
JUSTICE STEVENS delivered the opinion of the Court, except as to
Parts V and VI.
"WARNING: THE SURGEON GENERAL HAS DETERMINED THAT CIGARETTE
SMOKING Is DANGEROUS TO YOUR HEALTH." A federal statute enacted in
1969 requires that warning (or a variation thereof) to appear in a
conspicuous place on every package of cigarettes sold in the United
States.1 The questions presented to us by this case are whether
that statute, or its 1965 predecessor which required a less
alarming label, pre-empted petitioner's common-law claims against
respondent cigarette manufacturers.
Petitioner is the son of Rose Cipollone, who began smoking in
1942 and who died of lung cancer in 1984. He claims that
respondents are responsible for Rose Cipollone's death because they
breached express warranties contained in their advertising, because
they failed to warn consumers about the hazards of smoking, because
they fraudulently misrepresented those hazards to consumers, and
because they conspired to deprive the public of medical and
scientific information about smoking. The Court of Appeals held
that petitioner's state-law claims were pre-empted by federal
statutes,
893 F.2d
541 (CA3 1990), and other courts have agreed with that
analysis.2 The highest court of the State of New Jersey, however,
has held that the federal statutes
1 Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222,84
Stat. 87, as amended, 15 U. S. C. §§ 1331-1340. In 1984, Congress
amended the statute to require four more explicit warnings, used on
a rotating basis. See Comprehensive Smoking Education Act, Pub. L.
98-474, 98 Stat. 220l. Because petitioner's claims arose before
1984, neither party relies on this later Act.
2 The Court of Appeals' analysis was initially set forth in
Cipollone v.
Liggett Group, Inc.,
789 F.2d
181 (CA3 1986). Other federal courts have adopted a similar
analysis. See Pennington v. Vistron Corp.,
876
F.2d 414 (CA5 1989); Roysdon v. R. J. Reynolds Tobacco Co.,
849 F.2d
230 (CA6 1988); Stephen v. American Brands, Inc.,
825 F.2d
312 (CAll 1987); Palmer v. Liggett Group, Inc.,
825 F.2d
620 (CA1 1987).
509
did not pre-empt similar common-law claims.3 Because of the
manifest importance of the issue, we granted certiorari to resolve
the conflict, 499 U. S. 935 (1991). We now reverse in part and
affirm in part.
I
On August 1, 1983, Rose Cipollone and her husband filed a
complaint invoking the diversity jurisdiction of the Federal
District Court. Their complaint alleged that Rose Cipollone
developed lung cancer because she smoked cigarettes manufactured
and sold by the three respondents. After her death in 1984, her
husband filed an amended complaint. After trial, he also died;
their son, executor of both estates, now maintains this action.
Petitioner's third amended complaint alleges several different
bases of recovery, relying on theories of strict liability,
negligence, express warranty, and intentional tort. These claims,
all based on New Jersey law, divide into five categories. The
"design defect claims" allege that respondents' cigarettes were
defective because respondents failed to use a safer alternative
design for their products and because the social value of their
product was outweighed by the dangers it created (Count 2, App.
83-84). The "failure to warn claims" allege both that the product
was "defective as a result of [respondents'] failure to provide
adequate warnings of the health consequences of cigarette smoking"
(Count 3, App. 85) and that respondents "were negligent in the
manner [that] they tested, researched, sold, promoted and
advertised" their cigarettes (Count 4, App. 86). The "express
warranty claims" allege that respondents had "expressly
3 Dewey v.
R. J. Reynolds Tobacco
Co., 121 N. J. 69, 577 A. 2d 1239 (1990) (holding that the
Cigarette Act does not pre-empt plaintiff's failure-towarn and
misrepresentation claims); see also
Forster v.
R.
J. Reynolds Tobacco Co., 437 N. W. 2d 655 (Minn.
1989) (holding that plaintiffs' claim in strict liability for
unsafe design was not pre-empted; claims for misrepresentation and
breach of express warranty would also not be preempted).
510
warranted that smoking the cigarettes which they manufactured
and sold did not present any significant health consequences"
(Count 7, App. 88). The "fraudulent misrepresentation claims"
allege that respondents had willfully, "through their advertising,
attempted to neutralize the [federally mandated] warnin[g]" labels
(Count 6, App. 87-88), and that they had possessed, but had
"ignored and failed to act upon," medical and scientific data
indicating that "cigarettes were hazardous to the health of
consumers" (Count 8, App. 89). Finally, the "conspiracy to defraud
claims" allege that respondents conspired to deprive the public of
such medical and scientific data
(ibid.).
As one of their defenses, respondents contended that the Federal
Cigarette Labeling and Advertising Act, enacted in 1965, and its
successor, the Public Health Cigarette Smoking Act of 1969,
protected them from any liability based on their conduct after
1965. In a pretrial ruling, the District Court concluded that the
federal statutes were intended to establish a uniform warning that
would prevail throughout the country and that would protect
cigarette manufacturers from being "subjected to varying
requirements from state to state,"
Cipollone v.
Liggett
Group, Inc., 593 F. Supp. 1146, 1148 (NJ 1984), but that the
statutes did not pre-empt common-law actions.
Id., at
1153-1170.4 Accordingly, the court granted a motion to strike the
pre-emption defense entirely.
4 The court explained:
"However, the existence of the present federally mandated
warning does not prevent an individual from claiming that the risks
of smoking are greater than the warning indicates, and that
therefore such warning is inadequate. The court recognizes that it
will be extremely difficult for a plaintiff to prove that the
present warning is inadequate to inform of the dangers, whatever
they may be. However, the difficulty of proof cannot preclude the
opportunity to be heard, and affording that opportunity will not
undermine the purposes of the Act." 593 F. Supp., at 1148.
511
The Court of Appeals accepted an interlocutory appeal pursuant
to 28 U. s. C. § 1292(b), and reversed.
Cipollone v.
Liggett Group, Inc., 789 F.2d
181 (CA3 1986). The court rejected respondents' contention that
the federal Acts expressly pre-empted common-law actions, but
accepted their contention that such actions would conflict with
federal law. Relying on the statement of purpose in the statutes,5
the court concluded that Congress' "carefully drawn balance between
the purposes of warning the public of the hazards of cigarette
smoking and protecting the interests of national economy" would be
upset by state-law damages actions based on noncompliance with
"warning, advertisement, and promotion obligations other than those
prescribed in the [federal] Act."
Id., at 187. Accordingly,
the court held:
"[T]he Act preempts those state law damage[s] actions relating
to smoking and health that challenge either the adequacy of the
warning on cigarette packages or the propriety of a party's actions
with respect to the advertising and promotion of cigarettes.
[W]here the success of a state law damage[s] claim necessarily
depends on the assertion that a party bore the duty to provide a
warning to consumers in addition to the warning Congress has
required on cigarette packages, such claims are preempted as
conflicting with the Act." Ibid. (footnote omitted).
5 "It is the policy of the Congress, and the purpose of this
chapter, 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." 15 U. S. C. § 1331 (1982 ed.).
512
The court did not, however, identify the specific claims
asserted by petitioner that were pre-empted by the Act.
This Court denied a petition for certiorari,
479 U. S. 1043 (1987),
and the case returned to the District Court for trial. Complying
with the Court of Appeals' mandate, the District Court held that
the failure-to-warn, express-warranty,
fraudulent-misrepresentation, and conspiracy-to-defraud claims were
barred to the extent that they relied on respondents' advertising,
promotional, and public relations activities after January 1, 1966
(the effective date of the 1965 Act). 649 F. Supp. 664, 669,
673-675 (NJ 1986). The court also ruled that while the design
defect claims were not pre-empted by federal law, those claims were
barred on other grounds.6
Id., at 669-672. Following
extensive discovery and a 4-month trial, the jury answered a series
of special interrogatories and awarded $400,000 in damages to Rose
Cipollone's husband. In brief, it rejected all of the
fraudulent-misrepresentation and conspiracy claims, but found that
respondent Liggett had breached its duty to warn and its express
warranties before 1966. It found, however, that Rose Cipollone had"
'voluntarily and unreasonably encounter[ed] a known danger by
smoking cigarettes'" and that 80% of the responsibility for her
injuries was attributable to her. See 893 F. 2d, at 554
(summarizing jury findings). For that reason, no damages were
awarded to her estate. However, the jury awarded damages to
compensate her husband for losses caused by respondents' breach of
express warranty.
On cross-appeals from the final judgment, the Court of Appeals
affirmed the District Court's pre-emption rulings but remanded for
a new trial on several issues not relevant to our decision. We
granted the petition for certiorari to consider the pre-emptive
effect of the federal statutes.
6We are not presented with any question concerning these
claims.
513
II
Although physicians had suspected a link between smoking and
illness for centuries, the first medical studies of that connection
did not appear until the 1920's. See U. S. Dept. of Health and
Human Services, Report of the Surgeon General, Reducing the Health
Consequences of Smoking: 25 Years of Progress 5 (1989). The ensuing
decades saw a wide range of epidemiologic and laboratory studies on
the health hazards of smoking. Thus, by the time the Surgeon
General convened an advisory committee to examine the issue in
1962, there were more than 7,000 publications examining the
relationship between smoking and health.
Id., at 5-7.
In 1964, the advisory committee issued its report, which stated
as its central conclusion: "Cigarette smoking is a health hazard of
sufficient importance in the United States to warrant appropriate
remedial action." U. S. Dept. of Health, Education, and Welfare, U.
S. Surgeon General's Advisory Committee, Smoking and Health 33
(1964). Relying in part on that report, the Federal Trade
Commission (FTC), which had long regulated unfair and deceptive
advertising practices in the cigarette industry,7 promulgated a new
trade regulation rule. That rule, which was to take effect January
1, 1965, established that it would be a violation of the Federal
Trade Commission Act "to fail to disclose, clearly and prominently,
in all advertising and on every pack, box, carton, or container [of
cigarettes] that cigarette smoking is dangerous to health and may
cause death from cancer and other diseases." 29 Fed. Reg. 8325
(1964). Several States also moved to regulate the advertising and
labeling of cigarettes. See,
e. g., 1965 N. Y. Laws,
ch. 470; see also 111 Congo Rec. 13900-13902 (1965) (statement of
Sen. Moss). Upon a congressional request, the FTC postponed
enforcement of its
7See, e. g., Brown & Williamson Tobacco Corp., 56 F. T. C.
956 (1960); Liggett & Myers Tobacco Co., 55 F. T. C. 354
(1958); Philip Morris & Co., Ltd., 51 F. T. C. 857 (1955); R.
J. Reynolds Tobacco Co., 48 F. T. C. 682 (1952); London
Tobacco Co., 36 F. T. C. 282 (1943).
514
new regulation for six months. In July 1965, Congress enacted
the Federal Cigarette Labeling and Advertising Act (1965 Act or
Act).8 The 1965 Act effectively adopted half of the FTC's
regulation: the Act mandated warnings on cigarette packages (§
5(a)), but barred the requirement of such warnings in cigarette
advertising (§ 5(b)).9
Section 2 of the Act declares the statute's two purposes: (1)
adequately informing the public that cigarette smoking may be
hazardous to health, and (2) protecting the national economy from
the burden imposed by diverse, nonuniform, and confusing cigarette
labeling and advertising regulations.10 In furtherance of the first
purpose, § 4 of the Act made it unlawful to sell or distribute any
cigarettes in the United States unless the package bore a
conspicuous label stating: "CAUTION: CIGARETTE SMOKING MAY BE
HAZARDOUS TO YOUR HEALTH." In furtherance of the second purpose, §
5, captioned "Preemption," provided in part:
"(a) No statement relating to smoking and health, other than the
statement required by section 4 of this Act, shall be required on
any cigarette package.
"(b) No statement relating to smoking and health shall be
required in the advertising of any cigarettes the packages of which
are labeled in conformity with the provisions of this Act."
Although the Act took effect January 1, 1966, § 10 of the Act
provided that its provisions affecting the regulation of
advertising would terminate on July 1, 1969.
As that termination date approached, federal authorities
prepared to issue further regulations on cigarette advertising. The
FTC announced the reinstitution of its 1964 pro-
spub. L. 89-92, 79 Stat. 282, as amended, 15 U. S. C. §§
1331-1340. 9 However, § 5(c) of the Act expressly preserved "the
authority of the Federal Trade Commission with respect to unfair or
deceptive acts or practices in the advertising of cigarettes." 79
Stat. 283.
10 See n. 5,
supra.
515
ceedings concerning a warning requirement for cigarette
advertisements. 34 Fed. Reg. 7917 (1969). The Federal
Communications Commission (FCC) announced that it would consider "a
proposed rule which would ban the broadcast of cigarette
commercials by radio and television stations."
Id., at 1959.
State authorities also prepared to take actions regulating
cigarette advertisements.u
It was in this context that Congress enacted the Public Health
Cigarette Smoking Act of 1969 (1969 Act or Act), 12 which amended
the 1965 Act in several ways. First, the 1969 Act strengthened the
warning label, in part by requiring a statement that cigarette
smoking "is dangerous" rather than that it "may be hazardous."
Second, the 1969 Act banned cigarette advertising in "any medium of
electronic communication subject to [FCC] jurisdiction." Third, and
related, the 1969 Act modified the pre-emption provision by
replacing the original § 5(b) with a provision that reads:
"(b) 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 Act."
Although the Act also directed the FTC not to "take any action
before July 1, 1971, with respect to its pending trade regulation
rule proceeding relating to cigarette advertising," the narrowing
of the pre-emption provision to prohibit only restrictions "imposed
under State law" cleared the way for the FTC to extend the
warning-label requirement to print advertisements for cigarettes.
The FTC did so in 1972. See
In re Lorillard, 80 F. T. C. 455
(1972).
11 For example, the California State Senate passed a total ban
on both print and electronic cigarette advertisements. "California
Senate Votes Ban On Cigarette Advertising," Washington Post, June
26, 1969, p. A9. 12pub. L. 91-222, 84 Stat. 87, as amended, 15 U.
S. C. §§ 1331-1340.
516
III
Article VI 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." Art. VI, cl. 2. Thus, since our decision in
McCulloch v.
Maryland, 4 Wheat. 316, 427 (1819), it
has been settled that state law that conflicts with federal law is
"without effect."
Maryland v.
Louisiana, 451 U. S. 725, 746
(1981). Consideration of issues arising under the Supremacy Clause
"start[s] with the assumption that the historic police powers of
the States [are] not to be superseded by ... Federal Act unless
that [is] the clear and manifest purpose of Congress."
Rice
v.
Santa Fe Elevator Corp., 331 U. S. 218, 230
(1947). Accordingly," '[t]he purpose of Congress is the ultimate
touchstone'" of pre-emption analysis.
Malone v.
White
Motor Corp., 435
U. S. 497, 504 (1978) (quoting
Retail Clerks v.
Schermerhorn, 375 U. S. 96, 103
(1963)).
Congress' intent may be "explicitly stated in the statute's
language or implicitly contained in its structure and purpose."
Jones v.
Rath Packing Co., 430 U. S. 519, 525
(1977). In the absence of an express congressional command, state
law is pre-empted if that law actually conflicts with federal law,
see
Pacific Gas &
Elec. Co. v.
State Energy
Resources Conservation and Development Comm'n, 461 U. S. 190, 204
(1983), or if federal law so thoroughly occupies a legislative
field "'as to make reasonable the inference that Congress left no
room for the States to supplement it.'"
Fidelity Fed. Sav.
&
Loan Assn. v.
De la Cuesta, 458 U. S. 141, 153 (1982)
(quoting
Rice v.
Santa Fe Elevator Corp., 331 U. S.,
at 230).
The Court of Appeals was not persuaded that the preemption
provision in the 1969 Act encompassed state common-law claimsP 789
F. 2d, at 185-186. It was also
13 In its express pre-emption analysis, the court did not
distinguish between the pre-emption provisions of the 1965 and 1969
Acts; it relied solely on the latter, apparently believing that the
1969 provision was at least as
517
not persuaded that the labeling obligation imposed by both the
1965 and 1969 Acts revealed a congressional intent to exert
exclusive federal control over every aspect of the relationship
between cigarettes and health.
Id., at 186. Nevertheless,
reading the statute as a whole in the light of the statement of
purpose in § 2, and considering the potential regulatory effect of
state common-law actions on the federal interest in uniformity, the
Court of Appeals concluded that Congress had impliedly pre-empted
petitioner's claims challenging the adequacy of the warnings on
labels or in advertising or the propriety of respondents'
advertising and promotional activities.
Id., at 187.
In our opinion, the pre-emptive scope of the 1965 Act and the
1969 Act is governed entirely by the express language in § 5 of
each Act. When Congress has considered the issue of pre-emption and
has included in the enacted legislation a provision explicitly
addressing that issue, and when that provision provides a "reliable
indicium of congressional intent with respect to state authority,"
Malone v.
White Motor Corp., 435 U. S., at 505,
"there is no need to infer congressional intent to pre-empt state
laws from the substantive provisions" of the legislation.
California Federal Savings &
Loan Assn. v.
Guerra, 479 U.
S. 272, 282 (1987) (opinion of Marshall, J.). Such reasoning is
a variant of the familiar principle of
expressio unius est
exclusio alterius:
Congress' enactment of a provision defining the pre-emptive
reach of a statute implies that matters beyond that reach are not
pre-empted. In this case, the other provisions of the 1965 and 1969
Acts offer no cause to look beyond § 5 of each Act. Therefore, we
need only identify the domain expressly pre-empted by each of those
sections. As the 1965 and 1969 provisions differ substantially, we
consider each in turn.
broad as the 1965 provision. The court's ultimate ruling that
petitioner's claims were impliedly pre-empted effective January 1,
1966, reflects the fact that the 1969 Act did not alter the
statement of purpose in § 2, which was critical to the court's
implied pre-emption analysis.
518
IV
In the 1965 pre-emption provision regarding advertising (§
5(b)), Congress spoke precisely and narrowly: "No
statement
relating to smoking and health shall be required
in the
advertising of [properly labeled] cigarettes." Section 5(a)
used the same phrase ("No
statement relating to smoking and
health") with regard to cigarette labeling. As § 5(a) made clear,
that phrase referred to the sort of warning provided for in § 4,
which set forth verbatim the warning Congress determined to be
appropriate. Thus, on their face, these provisions merely
prohibited state and federal rulemaking bodies from mandating
particular cautionary statements on cigarette labels (§ 5(a)) or in
cigarette advertisements (§ 5(b)).
Beyond the precise words of these provisions, this reading is
appropriate for several reasons. First, as discussed above, we must
construe these provisions in light of the presumption against the
pre-emption of state police power regulations. This presumption
reinforces the appropriateness of a narrow reading of § 5. Second,
the warning required in § 4 does not by its own effect foreclose
additional obligations imposed under state law. That Congress
requires a particular warning label does not automatically pre-empt
a regulatory field. See
McDermott v.
Wisconsin,
228 U. S. 115,
131132 (1913). Third, there is no general, inherent conflict
between federal pre-emption of state warning requirements and the
continued vitality of state common-law damages actions. For
example, in the Comprehensive Smokeless Tobacco Health Education
Act of 1986,14 Congress expressly pre-empted state or local
imposition of a "statement relating to the use of smokeless tobacco
products and health" but, at the same time, preserved state-law
damages actions based on those products. See 15 U. S. C. § 4406.
All of these considerations indicate that § 5 is best read as
having super-
14pub. L. 99-252, 100 Stat. 30, as codified, 15 U. S. C.
§§4401-4408.
519
seded only positive enactments by legislatures or administrative
agencies that mandate particular warning labels.15
This reading comports with the 1965 Act's statement of purpose,
which expressed an intent to avoid "diverse, nonuniform, and
confusing cigarette labeling and advertising
regulations
with respect to any relationship between smoking and health." Read
against the backdrop of regulatory activity undertaken by state
legislatures and federal agencies in response to the Surgeon
General's report, the term "regulation" most naturally refers to
positive enactments by those bodies, not to common-law damages
actions.
The regulatory context of the 1965 Act also supports such a
reading. As noted above, a warning requirement promulgated by the
FTC and other requirements under consideration by the States were
the catalyst for passage of the 1965 Act. These regulatory actions
animated the passage of § 5, which reflected Congress' efforts to
prevent "a multiplicity of State and local regulations pertaining
to labeling of cigarette packages," H. R. Rep. No. 449, 89th Cong.,
1st Sess., 4 (1965), and to "preemp[t] all Federal, State, and
local authorities from requiring
any statement relating to
smoking and health in the advertising of cigarettes."
Id.,
at 5 (emphasis supplied).16
For these reasons, we conclude that § 5 of the 1965 Act only
pre-empted state and federal rulemaking bodies from
15 Cf.
Banzhaf v.
FCC, 132 U. S. App. D. C. 14,
405 F.2d
1082 (1968) (holding that 1965 Act did not pre-empt FCC's
fairness policy as applied to cigarette advertising), cert. denied,
396 U. S. 842 (1969).
16JU8TICE SCALIA takes issue with our narrow reading of the
phrase "No statement." His criticism, however, relies solely on an
interpretation of those two words, artificially severed from both
textual and legislative context. As demonstrated above, the phrase
"No statement" in § 5(b) refers to the similar phrase in § 5(a),
which refers in turn to § 4, which itself sets forth a
particular statement. This context, combined with the
regulatory setting in which Congress acted, establishes that a
narrow reading of the phrase "No statement" is appropriate.
520
Opinion of STEVENS, J.
mandating particular cautionary statements and did not pre-empt
state-law damages actions.17
v
Compared to its predecessor in the 1965 Act, the plain language
of the pre-emption provision in the 1969 Act is much broader.
First, the later Act bars not simply "statement[s]" but rather
"requirement[s] or prohibition[s] ... imposed under State law."
Second, the later Act reaches beyond statements "in the
advertising" to obligations "with respect to the advertising or
promotion" of cigarettes.
Notwithstanding these substantial differences in language, both
petitioner and respondents contend that the 1969 Act did not
materially alter the pre-emptive scope of federal law. 18 Their
primary support for this contention is a sentence in a Committee
Report which states that the 1969 amendment "clarified" the 1965
version of § 5(b). S. Rep. No. 91-566, p. 12 (1969). We reject the
parties' reading as incompatible with the language and origins of
the amendments. As we noted in another context, "[i]nferences from
legislative history cannot rest on so slender a reed. Moreover, the
views of a subsequent Congress form a hazardous basis for inferring
the intent of an earlier one."
United States v.
Price, 361 U.
S. 304, 313 (1960). The 1969 Act worked substantial changes in
the law: rewriting the label warning, banning broadcast
advertising, and allowing the FTC to regulate print advertising. In
the context of such revisions and in light of the substantial
changes in wording,
17This interpretation of the 1965 Act appears to be consistent
with respondents' contemporaneous understanding of the Act.
Although respondents have participated in a great deal of
litigation relating to cigarette use beginning in the 1950's, it
appears that this case is the first in which they have raised § 5
as a pre-emption defense.
18 See Brief for Petitioner 23-24; Brief for Respondents
21-23.
521
we cannot accept the parties' claim that the 1969 Act did not
alter the reach of § 5(b).19
Petitioner next contends that § 5(b), however broadened by the
1969 Act, does not pre-empt
common-law actions. He offers
two theories for limiting the reach of the amended § 5(b). First,
he argues that common-law damages actions do not impose
"requirement[s] or prohibition[s]" and that Congress intended only
to trump "state statute [s], injunction[s], or executive
pronouncement[s]." 20 We disagree; such an analysis is at odds both
with the plain words of the 1969 Act and with the general
understanding of common-law damages actions. The phrase "[n]o
requirement or prohibition" sweeps broadly and suggests no
distinction between positive enactments and common law; to the
contrary, those words easily encompass obligations that take the
form of common-law rules. As we noted in another context, "[state]
regulation can be as effectively exerted through an award of
damages as through some form of preventive relief. The obligation
to pay compensation can be, indeed is designed to be, a potent
method of governing conduct and controlling policy."
San Diego
Building Trades Council v.
Garmon, 359 U. S. 236, 247
(1959).
Although portions of the legislative history of the 1969 Act
suggest that Congress was primarily concerned with positive
enactments by States and localities, see S. Rep. No. 91-566, p. 12,
the language of the Act plainly reaches beyond such enactments. "We
must give effect to this plain language unless there is good reason
to believe Congress intended the language to have some more
restrictive meaning."
Shaw v.
19 As noted above, the 1965 Act's statement of purpose (§2)
suggested that Congress was concerned primarily with "regulations"
-positive enactments, rather than common-law damages actions.
Although the 1969 Act did not amend § 2, we are not persuaded that
the retention of that portion of the 1965 Act is a sufficient basis
for rejecting the plain meaning of the broad language that Congress
added to § 5(b).
20 Brief for Petitioner 20.
522
Opinion of STEVENS, J.
Delta Air Lines, Inc., 463 U. S. 85, 97 (1983).
In this case there is no "good reason to believe" that Congress
meant less than what it said; indeed, in light of the narrowness of
the 1965 Act, there is "good reason to believe" that Congress meant
precisely what it said in amending that Act.
Moreover, common-law damages actions of the sort raised by
petitioner are premised on the existence of a legal duty, and it is
difficult to say that such actions do not impose "requirements or
prohibitions." See W. Prosser, Law of Torts 4 (4th ed. 1971);
Black's Law Dictionary 1489 (6th ed. 1990) (defining "tort" as
"always [involving] a violation of some duty owing to plaintiff").
It is in this way that the 1969 version of § 5(b) differs from its
predecessor: Whereas the common law would not normally require a
vendor to use any specific
statement on its packages or in
its advertisements, it is the essence of the common law to enforce
duties that are either affirmative
requirements or negative
prohibitions. We therefore reject petitioner's argument that
the phrase "requirement or prohibition" limits the 1969 Act's
preemptive scope to positive enactments by legislatures and
agencies.
Petitioner's second argument for excluding common-law rules from
the reach of § 5(b) hinges on the phrase "imposed under State law."
This argument fails as well. At least since
Erie R. Co. v.
Tompkins, 304
U. S. 64 (1938), we have recognized the phrase "state law" to
include common law as well as statutes and regulations. Indeed just
last Term, the Court stated that the phrase" 'all other law,
including State and municipal law'" "does not admit of [a]
distinction ... between positive enactments and common-law rules of
liability."
Norfolk &
Western R. Co. v.
Train
Dispatchers, 499
U. S. 117, 128 (1991). Although the presumption against
pre-emption might give good reason to construe the phrase "state
law" in a pre-emption provision more narrowly than an identical
phrase in another context, in this case such a construction is not
appropriate. As explained above, the
523
1965 version of § 5 was precise and narrow on its face; the
obviously broader language of the 1969 version extended that
section's pre-emptive reach. Moreover, while the version of the
1969 Act passed by the Senate pre-empted "any State
statute or
regulation with respect to ... advertising or promotion," S.
Rep. No. 91-566, p. 16 (1969), the Conference Committee replaced
this language with "State
law with respect to advertising or
promotion." In such a situation, § 5(b)'s pre-emption of "state
law" cannot fairly be limited to positive enactments.
That the pre-emptive scope of § 5(b) cannot be limited to
positive enactments does not mean that that section preempts all
common-law claims. For example, as respondents concede, § 5(b) does
not generally pre-empt "state-law obligations to avoid marketing
cigarettes with manufacturing defects or to use a demonstrably
safer alternative design for cigarettes." 21 For purposes of §
5(b), the common law is not of a piece.
Nor does the statute indicate that any familiar subdivision of
common-law claims is or is not pre-empted. We therefore cannot
follow petitioner's passing suggestion that § 5(b) preempts
liability for omissions but not for acts, or that § 5(b) pre-empts
liability for unintentional torts but not for intentional torts.
Instead we must fairly but-in light of the strong presumption
against pre-emption-narrowly construe the precise language of §
5(b) and we must look to each of petitioner's common-law claims to
determine whether it is in fact pre-empted.22 The central inquiry
in each case is
21 Brief for Respondents 14.
22 Petitioner makes much of the fact that Congress did not
expressly include common law within § 5's pre-emptive reach, as it
has in other statutes. See,
e. g., 29 U. S. C. §
1144(c)(1); 12 U. S. C. § 1715z-17(d). Respondents make much of the
fact that Congress did not include a saving clause preserving
common-law claims, again, as it has in other statutes. See,
e. g., 17 U. S. C. § 301. Under our analysis of § 5,
these omissions make perfect sense: Congress was neither
pre-empting nor saving common law
524
Opinion of STEVENS, J.
straightforward: we ask whether the legal duty that is the
predicate of the common-law damages action constitutes a
"requirement or prohibition based on smoking and health ... imposed
under State law with respect to ... advertising or promotion,"
giving that clause a fair but narrow reading. As discussed below,
each phrase within that clause limits the universe of common-law
claims pre-empted by the statute.
We consider each category of damages actions in turn. In doing
so, we express no opinion on whether these actions are viable
claims as a matter of state law; we assume,
arguendo, that
they are.
Failure to Warn
To establish liability for a failure to warn, petitioner must
show that "a warning is necessary to make a product ... reasonably
safe, suitable and fit for its intended use," that respondents
failed to provide such a warning, and that that failure was a
proximate cause of petitioner's injury. Tr. 12738. In this case,
petitioner offered two closely related theories concerning the
failure to warn: first, that respondents "were negligent in the
manner [that] they tested, researched, sold, promoted, and
advertised" their cigarettes; and second, that respondents failed
to provide "adequate warnings of the health consequences of
cigarette smoking." App.85-86.
Petitioner's claims are pre-empted to the extent that they rely
on a state-law "requirement or prohibition ... with respect to ...
advertising or promotion." Thus, insofar as claims under either
failure-to-warn theory require a showing that respondents'
post-1969 advertising or promotions should have included
additional, or more clearly stated, warnings, those claims are
pre-empted. The Act does not, however, pre-empt petitioner's claims
that rely solely on respondents'
as a whole-it was simply pre-empting particular common-law
claims, while saving others.
525
testing or research practices or other actions unrelated to
advertising or promotion.
Breach of Express Warranty
Petitioner's claim for breach of an express warranty arises
under N. J. Stat. Ann. § 12A:2-313(1)(a) (West 1962), which
provides:
"Any affirmation of fact or promise made by the seller to the
buyer which relates to the goods and becomes part of the basis of
the bargain creates an express warranty that the goods shall
conform to the affirmation or promise."
Petitioner's evidence of an express warranty consists largely of
statements made in respondents' advertising. See 893 F. 2d, at
574,576; 683 F. Supp. 1487, 1497 (NJ 1988). Applying the Court of
Appeals' ruling that Congress pre-empted "damage[s] actions ...
that challenge ... the propriety of a party's actions with respect
to the advertising and promotion of cigarettes," 789 F. 2d, at 187,
the District Court ruled that this claim "inevitably brings into
question [respondents'] advertising and promotional activities, and
is therefore preempted" after 1965. 649 F. Supp., at 675. As
demonstrated above, however, the 1969 Act does not sweep so
broadly: The appropriate inquiry is not whether a claim challenges
the "propriety" of advertising and promotion, but whether the claim
would require the imposition under state law of a requirement or
prohibition based on smoking and health with respect to advertising
or promotion.
A manufacturer's liability for breach of an express warranty
derives from, and is measured by, the terms of that warranty.
Accordingly, the "requirement[s]" imposed by an express warranty
claim are not "imposed under State law," but rather imposed
by
the warrantor.23 If, for example, a
23 Thus it is that express warranty claims are said to sound in
contract rather than in tort. Compare Black's Law Dictionary 1489
(6th ed. 1990) (defining "tort": "There must always be a violation
of some duty ... and
526
Opinion of STEVENS, J.
manufacturer expressly promised to pay a smoker's medical bills
if she contracted emphysema, the duty to honor that promise could
not fairly be said to be "imposed under state law," but rather is
best understood as undertaken by the manufacturer itself. While the
general duty not to breach warranties arises under state law, the
particular "requirement ... based on smoking and health ... with
respect to the advertising or promotion [of] cigarettes" in an
express warranty claim arises from the manufacturer's statements in
its advertisements. In short, a common-law remedy for a contractual
commitment voluntarily undertaken should not be regarded as a
"requirement ...
imposed under State law" within the meaning
of § 5(b).24
That the terms of the warranty may have been set forth in
advertisements rather than in separate documents is irrelevant to
the pre-emption issue (though possibly not to the state-law issue
of whether the alleged warranty is valid and enforceable) because,
although the breach of warranty claim is made "with respect to ...
advertising," it does not rest on a duty imposed under state law.
Accordingly, to the extent that petitioner has a viable claim for
breach of express war-
generally such duty must arise by operation of law and not by
mere agreement of the parties") with
id., at 322 (defining
"contract"; "An agreement between two ... persons which creates an
obligation").
24JUSTICE SCALIA contends that because the general duty to honor
express warranties arises under state law, every express warranty
obligation is a "requirement ... imposed under State law," and
that, therefore, the Act pre-empts petitioner's express warranty
claim. JUSTICE SCALIA might be correct if the Act pre-empted
"liability" imposed under state law (as he suggests,
post, at 551); but instead the Act expressly pre-empts only
a
"requirement or prohibition" imposed under state law. That
a "contract has no legal force apart from the [state] law that
acknowledges its binding character,"
Norfolk &
Western R. Co. v.
Train Dispatchers, 499 U. S. 117, 130
(1991), does not mean that every contractual provision is "imposed
under State law." To the contrary, common understanding dictates
that a contractual requirement, although only enforceable under
state law, is not "imposed" by the State, but rather is "imposed"
by the contracting party upon itself.
527
ranties made by respondents, that claim is not pre-empted by the
1969 Act.
Fraudulent Misrepresentation
Petitioner alleges two theories of fraudulent misrepresentation.
First, petitioner alleges that respondents, through their
advertising, neutralized the effect of federally mandated warning
labels. Such a claim is predicated on a statelaw prohibition
against statements in advertising and promotional materials that
tend to minimize the health hazards associated with smoking. Such a
prohibition, however, is merely the converse of a state-law
requirement that warnings be included in advertising and
promotional materials. Section 5(b) of the 1969 Act pre-empts both
requirements and prohibitions; it therefore supersedes petitioner's
first fraudulent-misrepresentation theory.
Regulators have long recognized the relationship between
prohibitions on advertising that downplays the dangers of smoking
and requirements for warnings in advertisements. For example, the
FTC, in promulgating its initial trade regulation rule in 1964,
criticized advertising that "associated cigarette smoking with such
positive attributes as contentment, glamour, romance, youth,
happiness ... at the same time suggesting that smoking is an
activity at least consistent with physical health and well-being."
The Commission concluded:
"To avoid giving a false impression that smoking [is] innocuous,
the cigarette manufacturer who represents the alleged pleasures or
satisfactions of cigarette smoking in his advertising must also
disclose the serious risks to life that smoking involves." 29 Fed.
Reg. 8356 (1964).
Longstanding regulations of the Food and Drug Administration
express a similar understanding of the relationship between
required warnings and advertising that "negates or disclaims" those
warnings: "A hazardous substance shall not be deemed to have met
[federal labeling] requirements if
528
Opinion of STEVENS, J.
there appears in or on the label ... statements, designs, or
other graphic material that in any manner negates or disclaims [the
required warning]." 21 CFR § 191.102 (1965). In this light it seems
quite clear that petitioner's first theory of fraudulent
misrepresentation is inextricably related to petitioner's first
failure-to-warn theory, a theory that we have already concluded is
largely pre-empted by § 5(b).
Petitioner's second theory, as construed by the District Court,
alleges intentional fraud and misrepresentation both by "false
representation of a material fact [and by] conceal[ment of] a
material fact." Tr. 12727.25 The predicate of this claim is a
state-law duty not to make false statements of material fact or to
conceal such facts. Our pre-emption analysis requires us to
determine whether such a duty is the sort of requirement or
prohibition proscribed by § 5(b).
Section 5(b) pre-empts only the imposition of state-law
obligations "with respect to the advertising or promotion" of
cigarettes. Petitioner's claims that respondents concealed material
facts are therefore not pre-empted insofar as those claims rely on
a state-law duty to disclose such facts through channels of
communication other than advertising or promotion. Thus, for
example, if state law obliged respondents to disclose material
facts about smoking and health to an administrative agency, § 5(b)
would not pre-empt a state-law claim based on a failure to fulfill
that obligation.
Moreover, petitioner's fraudulent-misrepresentation claims that
do arise with respect to advertising and promotions (most notably
claims based on allegedly false statements of material fact made in
advertisements) are not pre-empted by § 5(b). Such claims are
predicated not on a duty "based on smoking and health" but rather
on a more general obliga-
25 The District Court stated that this claim "consists of the
followingelements: 1) a material misrepresentation of ... fact [by
false statement or concealment]; 2) knowledge of the falsity ... ;
3) intent that the misrepresentation be relied upon; 4) justifiable
reliance ... ; 5) resultant damage." 683 F. Supp. 1487, 1499 (NJ
1988).
529
tion-the duty not to deceive. This understanding of fraud by
intentional misstatement is appropriate for several reasons. First,
in the 1969 Act, Congress offered no sign that it wished to
insulate cigarette manufacturers from longstanding rules governing
fraud. To the contrary, both the 1965 and the 1969 Acts explicitly
reserved the FTC's authority to identify and punish deceptive
advertising practicesan authority that the FTC had long exercised
and continues to exercise. See § 5(c) of the 1965 Act; § 7(b) of
the 1969 Act; see also nn. 7, 9,
supra. This indicates that
Congress intended the phrase "relating to smoking and health"
(which was essentially unchanged by the 1969 Act) to be construed
narrowly, so as not to proscribe the regulation of deceptive
advertising.26
Moreover, this reading of "based on smoking and health" is
wholly consistent with the purposes of the 1969 Act. State-law
prohibitions on false statements of material fact do not create
"diverse, nonuniform, and confusing" standards. Unlike state-law
obligations concerning the warning necessary to render a product
"reasonably safe," state-law proscriptions on intentional fraud
rely only on a single, uniform standard: falsity. Thus, we conclude
that the phrase "based on smoking and health" fairly but narrowly
construed does not encompass the more general duty not to make
fraudulent statements. Accordingly, petitioner's claim based on
allegedly fraudulent statements made in respondents' advertisements
is not pre-empted by § 5(b) of the 1969 Act.27
26 The Senate Report emphasized that the "preemption of
regulation or prohibition with respect to cigarette advertising is
narrowly phrased to preempt only State action based on smoking
and health. It would in no way affect the power of any State
... with respect to the taxation or the sale of cigarettes to
minors, or the prohibition of smoking in public buildings, or
similar police regulations." S. Rep. No. 91-566, p. 12
(1969) (emphasis supplied).
27Both 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
530
Opinion of STEVENS, J.
Conspiracy to Misrepresent or Conceal Material Facts
Petitioner's final claim alleges a conspiracy among respondents
to misrepresent or conceal material facts concerning the health
hazards of smoking.28 The predicate duty underlying this claim is a
duty not to conspire to commit fraud. For the reasons stated in our
analysis of petitioner's intentional fraud claim, this duty is not
pre-empted by § 5(b) for it is not a prohibition "based on smoking
and health" as that phrase is properly construed. Accordingly, we
conclude that the 1969 Act does not pre-empt petitioner's
conspiracy claim.
VI
To summarize our holding: The 1965 Act did not pre-empt
state-law damages actions; the 1969 Act pre-empts petitioner's
claims based on a failure to warn and the neutralization
as based on smoking and health, but rather as based on the
broader duty "to inform consumers of known risks."
Post, at
543. JUSTICE SCALIA contends that, again as a matter of
consistency, we should construe fraudulentmisrepresentation 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 preemption and with legislative
history that plainly expresses an intent to preserve the "police
regulations" of the States. See n. 25,
supra.
28 The District Court described the evidence of conspiracy as
follows:
"Evidence presented by [petitioner], particularly that contained
in the documents of [respondents] themselves, indicates ... that
the industry of which these [respondents] were and are a part
entered into a sophisticated conspiracy. The conspiracy was
organized to refute, undermine, and neutralize information coming
from the scientific and medical community .... " 683 F. Supp., at
1490.
531
of federally mandated warnings to the extent that those claims
rely on omissions or inclusions in respondents' advertising or
promotions; the 1969 Act does not pre-empt petitioner's claims
based on express warranty, intentional fraud and misrepresentation,
or conspiracy.
The judgment of the Court of Appeals is accordingly reversed in
part and affirmed in part, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE BLACKMUN, with whom JUSTICE KENNEDY and JUSTICE SOUTER
join, concurring in part, concurring in the judgment in part, and
dissenting in part.
I
The Court today would craft a compromise position concerning the
extent to which federal law pre-empts persons injured by cigarette
manufacturers' unlawful conduct from bringing state common-law
damages claims against those manufacturers. I, however, find the
Court's divided holding with respect to the original and amended
versions of the federal statute entirely unsatisfactory. Our
precedents do not allow us to infer a scope of pre-emption beyond
that which clearly is mandated by Congress' language. In my view,
neither version of the federal legislation at issue here
provides the kind of unambiguous evidence of congressional intent
necessary to displace state common-law damages claims. I therefore
join Parts I, II, III, and IV of the Court's opinion, but dissent
from Parts V and VI.
A
I agree with the Court's exposition, in Part III of its opinion,
of the underlying principles of pre-emption law, and in particular
with its recognition that the pre-emptive scope of the Federal
Cigarette Labeling and Advertising Act (1965 Act or Act) and the
Public Health Cigarette Smoking Act of
532
1969 (1969 Act) is "governed entirely by the express language"
of the statutes' pre-emption provisions.
Ante, at 517.
Where, as here, Congress has included in legislation a specific
provision addressing-and indeed, entitled-preemption, the Court's
task is one of statutory interpretationonly to "identify the domain
expressly pre-empted" by the provision.
Ibid. An
interpreting court must "'begin with the language employed by
Congress and the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose.'"
FMC
Corp. v.
Holliday, 498 U. S. 52, 57 (1990)
(quoting
Park 'N
Fly, Inc. v.
Dollar Park
& Fly, Inc., 469 U. S. 189, 194
(1985)). See
California Coastal Comm'n v.
Granite Rock
Co., 480 U. S.
572, 591-593 (1987);
California Federal Savings &
Loan Assn. v.
Guerra, 479 U. S. 272, 282 (1987)
(opinion of Marshall, J.). We resort to principles of implied
pre-emption-that is, inquiring whether Congress has occupied a
particular field with the intent to supplant state law or whether
state law actually conflicts with federal law, see
English
v.
General Electric Co., 496 U. S. 72, 79 (1990)-only when
Congress has been silent with respect to pre-emption.
I further agree with the Court that we cannot find the state
common-law damages claims at issue in this case preempted by
federal law in the absence of clear and unambiguous evidence that
Congress intended that result. See
ante, at 516. The Court
describes this reluctance to infer preemption in ambiguous cases as
a "presumption against the pre-emption of state police power
regulations."
Ante, at 518. Although many of the cases in
which the Court has invoked such a presumption against displacement
of state law have involved implied pre-emption, see,
e. g.,
Florida Lime &
Avocado Growers, Inc. v.
Paul,
373 U. S. 132,
146152 (1963);
Rice v.
Santa Fe Elevator Corp.,
331 U. S. 218,
236-237 (1947), this Court often speaks in general terms without
reference to the nature of the pre-emption at issue in the given
statutory scheme. See,
e. g., Maryland v.
Loui-
533
siana, 451
U. S. 725, 746 (1981) ("Consideration under the Supremacy
Clause starts with the basic assumption that Congress did not
intend to displace state law");
Avocado Growers, 373 U. S.,
at 146-147 ("[WJe are not to conclude that Congress legislated the
ouster of this [state] statute ... in the absence of an unambiguous
congressional mandate to that effect");
Bethlehem Steel Co.
v.
New York State Labor Relations Bd., 330 U. S. 767, 780 (1947)
("Any indulgence in construction should be in favor of the States,
because Congress can speak with drastic clarity whenever it chooses
to assure full federal authority, completely displacing the
States") (opinion of Frankfurter, J.).
The principles of federalism and respect for state sovereignty
that underlie the Court's reluctance to find preemption where
Congress has not spoken directly to the issue apply with equal
force where Congress has spoken, though ambiguously. In such cases,
the question is not
whether Congress intended to pre-empt
state regulation, but to what
extent. We do not, absent
unambiguous evidence, infer a scope of pre-emption beyond that
which clearly is mandated by Congress' language.1 I therefore agree
with the Court's unwillingness to conclude that the state
common-law damages claims at issue in this case are pre-empted
unless such result is "'the clear and manifest purpose of
Congress.'''
Ante, at 516 (quoting
Rice v.
Santa
Fe Elevator Corp., 331 U. S., at 230).
B
I also agree with the Court's application of the foregoing
principles in Part IV of its opinion, where it concludes that
1 The Court construes congressional inroads on state power
narrowly in other contexts, as well. For example, the Court
repeatedly has held that, in order to waive a State's sovereign
immunity from suit in federal court, Congress must make its
intention "unmistakably clear in the language of the statute."
Atascadero State Hospital v.
Scanlon, 473 U. S. 234, 242
(1985); Dellmuth v.
Muth, 491 U. S. 223, 228
(1989).
534
Opinion of BLACKMUN, J.
none of petitioner's common-law damages claims are preempted by
the 1965 Act. In my view, the words of § 5(b) of that Act ("No
statement relating to smoking and health shall be required in the
advertising of any cigarettes the packages of which are labeled in
conformity with the provisions of this Act") can bear only one
meaning: that States are prohibited merely from "mandating
particular cautionary statements ... in cigarette advertisements."
Ante, at 518. As the Court recognizes, this interpretation
comports with Congress' stated purpose of avoiding" 'diverse,
nonuniform, and confusing cigarette labeling and advertising
regulations'" relating to smoking and health.
Ante,
at 519 (quoting 15 U. S. C. § 1331(2)). The narrow scope of federal
pre-emption is thus apparent from the statutory text, and it is
correspondingly impossible to divine any "clear and manifest
purpose" on the part of Congress to pre-empt common-law damages
actions.
II
My agreement with the Court ceases at this point. Given the
Court's proper analytical focus on the scope of the express
pre-emption provisions at issue here and its acknowledgment that
the 1965 Act does not pre-empt state commonlaw damages claims, I
find the plurality's conclusion that the 1969 Act pre-empts at
least some common-law damages claims little short of baffling. In
my view, the modified language of § 5(b), 15 U. S. C. § 1334(b)
("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 Act"), no more "clearly" or
"manifestly" exhibits an intent to pre-empt state commonlaw damages
actions than did the language of its predecessor in the 1965 Act.
Nonetheless, the plurality reaches a different conclusion, and its
reasoning warrants scrutiny.
535
A
The plurality premises its pre-emption ruling on what it terms
the "substantial changes" wrought by Congress in § 5(b),
ante, at 520, notably, the rewording of the provision to
pre-empt any "requirement or prohibition" (as opposed merely to any
"statement") "imposed under State law." As an initial matter, I do
not disagree with the plurality that the phrase "State law," in an
appropriate case, can encompass the common law as well as positive
enactments such as statutes and regulations. See
ante, at
522-523. I do disagree, however, with the plurality's conclusion
that "State law" as used in § 5(b) represents such an all-inclusive
reference. Congress' intention in selecting that phrase cannot be
understood without considering the narrow range of actions-any
"requirement or prohibition"-that Congress specifically described
in § 5(b) as "imposed under" state law. See
United States v.
Morton, 467 U.
S. 822, 828 (1984) ("We do not ... construe statutory phrases
in isolation; we read statutes as a whole. Thus, the words [in
question] must be read in light of the immediately following
phrase" (footnote omitted));
Jarecki v. G.
D. Searle
&
Co., 367
U. S. 303, 307 (1961) ("The maxim
noscitur a sociis,
that a word is known by the company it keeps, while not an
inescapable rule, is often wisely applied where a word is capable
of many meanings in order to avoid the giving of unintended breadth
to the Acts of Congress"); see also
Norfolk &
Western
R. Co. v.
Train Dispatchers, 499 U. S. 117, 138-139
(1991) (STEVENS, J., dissenting) (declining to read the phrase "all
other law, including State and municipal law," broadly).
Although the plurality flatly states that the phrase "no
requirement or prohibition" "sweeps broadly" and "easily
encompass[es] obligations that take the form of common-law rules,"
ante, at 521, those words are in reality far from
unambiguous and cannot be said clearly to evidence a congressional
mandate to pre-empt state common-law damages actions. The
dictionary definitions of these terms suggest, if
536
Opinion of BLACKMUN, J.
anything, specific actions mandated or disallowed by a formal
governing authority. See,
e. g., Webster's Third New
International Dictionary 1929 (1981) (defining "require" as "to ask
for authoritatively or imperatively: claim by right and authority"
and "to demand as necessary or essential (as on general principles
or in order to comply with or satisfy some regulation)"); Black's
Law Dictionary 1212 (6th ed. 1990) (defining "prohibition" as an
"[a]ct or law prohibiting something"; an "interdiction").
More important, the question whether common-law damages actions
exert a regulatory effect on manufacturers analogous to that of
positive enactments-an assumption crucial to the plurality's
conclusion that the phrase "requirement or prohibition" encompasses
common-law actions-is significantly more complicated than the
plurality's brief quotation from
San Diego Building Trades
Council v.
Garmon, 359 U. S. 236, 247 (1959), see
ante, at 521, would suggest.
The effect of tort law on a manufacturer's behavior is
necessarily indirect. Although an award of damages by its very
nature attaches additional consequences to the manufacturer's
continued unlawful conduct, no particular course of action
(e. g., the adoption of a new warning label) is required. A
manufacturer found liable on, for example, a failure-towarn claim
may respond in a number of ways. It may decide to accept damages
awards as a cost of doing business and not alter its behavior in
any way. See
Goodyear Atomic Corp. v.
Miller,
486 U. S. 174,
185-186 (1988) (corporation "may choose to disregard [state] safety
regulations and simply pay an additional" damages award if an
employee is injured as a result of a safety violation). Or, by
contrast, it may choose to avoid future awards by dispensing
warnings through a variety of alternative mechanisms, such as
package inserts, public service advertisements, or general
educational programs. The level of choice that a defendant retains
in shaping its own behavior distinguishes the indirect regulatory
effect of the common law from positive enact-
537
ments such as statutes and administrative regulations. See
Dewey v.
R. J. Reynolds Tobacco Co.,
121 N. J. 69, 90, 577 A. 2d 1239, 1249 (1990); Garner, Cigarette
Dependency and Civil Liability: A Modest Proposal, 53 S. Cal. L.
Rev. 1423, 1454 (1980). Moreover, tort law has an entirely separate
function-compensating victims-that sets it apart from direct forms
of regulation. See
Ferebee v.
Chevron Chemical
Co., 237 U. S. App. D. C. 164, 175,
736
F.2d 1529, 1540, cert. denied,
469 U. S. 1062
(1984).
Despite its earlier acknowledgment, consistent with the
foregoing conception of damages actions, that "there is no general,
inherent conflict between federal pre-emption of state warning
requirements and the continued vitality of state common-law damages
actions,"
ante, at 518,2 the plurality apparently finds
Garmon's statement that "regulation can be as effectively
exerted through an award of damages as through some form of
preventive relief," 359 U. S., at 247, sufficient authority to
warrant extinguishing the commonlaw actions at issue in this case.
See
ante, at 521. I am not persuaded. Not only has the Court
previously distinguished
Garmon,3 but it has declined on
several recent occasions to find the regulatory effects of state
tort law direct or substantial enough to warrant pre-emption.
In
Goodyear Atomic Corp. v.
Miller, for example,
the Court distinguished, for purposes of pre-emption analysis,
2 Congress, in fact, has expressly allowed common-law damages
actions to survive while pre-empting other, more direct forms of
state regulation. See,
e. g., Comprehensive Smokeless
Tobacco Health Education Act of 1986, §7, 100 Stat. 34,15 U. S. C.
§4406; Occupational Safety and Health Act of 1970, 84 Stat. 1590,
29 U. S. C. § 651
et seq., as construed in
Gade v.
National Solid Wastes Management Assn., ante, p. 88.
3 The Court has explained that
Garmon, in which a state
common-law damages award was found to be pre-empted by the National
Labor Relations Act, involved a special "presumption of federal
pre-emption" relating to the primary jurisdiction of the National
Labor Relations Board. See
Brown v.
Hotel Employees,
468 U. S. 491,
502 (1984);
English v.
General Electric Co., 496 U. S. 72, 86-87, n. 8
(1990).
538
Opinion of BLACKMUN, J.
"direct state regulation" of safety matters from "the incidental
regulatory effects" of damages awarded pursuant to a state workers'
compensation law. 486 U. S., at 185. Relying in part on its earlier
decision in
Silkwood v.
Kerr-McGee Corp., 464 U. S. 238, 256
(1984),4 the Court stated that "Congress may reasonably determine
that incidental regulatory pressure is acceptable, whereas direct
regulatory authority is not." 486 U. S., at 186. Even more
recently, the Court declined in
English v.
General
Electric Co., 496 U. S., at 86, to find state common-law
damages claims for emotional distress pre-empted by federal nuclear
energy law. The Court concluded that, although awards to former
employees for emotional distress would attach "additional
consequences" to retaliatory employer conduct and could lead
employers to alter the underlying conditions about which employees
were complaining,
ibid., such an effect would be "neither
direct nor substantial enough" to warrant pre-emption.
Id.,
at 85.
In light of the recognized distinction in this Court's
jurisprudence between direct state regulation and the indirect
regulatory effects of common-law damages actions, it cannot be said
that damages claims are clearly or unambiguously "requirements" or
"prohibitions" imposed under state law.
4 The Court in
Silkwood declined to find state punitive
damages awards pre-empted by federal nuclear safety laws,
explaining: "It may be that the award of damages based on the state
law of negligence or strict liability is regulatory in the sense
that a nuclear plant will be threatened with damages liability if
it does not conform to state standards, but that regulatory
consequence was something that Congress was quite willing to
accept." 464 U. S., at 256. Although the Court has noted that the
decision in
Silkwood was based in "substantial part" on
affirmative evidence in the legislative history suggesting that
Congress did not intend to include common-law damages remedies
within the pre-empted field, see
English v.
General
Electric Co., 496
U. S. 72, 86 (1990),
Silkwood's discussion of the
regulatory effects of the common law is instructive and has been
relied on in subsequent cases. See,
e. g., Goodyear, 486 U.
S., at 186.
539
The plain language of the 1969 Act's modified pre-emption
provision simply cannot bear the broad interpretation the plurality
would impart to it.
B
Not only does the text of the revised § 5(b) fail clearly or
manifestly to require pre-emption of state common-law damages
actions, but there is no suggestion in the legislative history that
Congress intended to expand the scope of the pre-emption provision
when it amended the statute in 1969. The plurality acknowledges the
evidence that Congress itself perceived the changes in § 5(b) to be
a mere" 'clarifi[cation]''' of the existing narrow pre-emption
provision,
ante, at 520 (quoting S. Rep. No. 91-566, p. 12
(1969) (hereinafter S. Rep.)), but it dismisses these statements of
legislative intent as the" 'views of a subsequent Congress.'"
Ante, at 520 (quoting
United States v.
Price,
361 U. S. 304,
313 (1960)). The plurality is wrong not only as a factual
matter-for the statements of the Congress that amended § 5(b) are
contemporaneous, not "subsequent," to enactment of the revised
pre-emption provision-but as a legal matter, as well. This Court
accords "great weight" to an amending Congress' interpretation of
the underlying statute. See,
e. g., Red Lion Broadcasting
Co. v.
FCC, 395 U. S. 367, 380-381,
and n. 8 (1969).
Viewing the revisions to § 5(b) as generally nonsubstantive in
nature makes sense. By replacing the word "statement" with the
slightly broader term, "requirement," and adding the word
"prohibition" to ensure that a State could not do through negative
mandate
(e. g., banning all cigarette advertising) that
which it already was forbidden to do through positive mandate
(e. g., mandating particular cautionary statements),
Congress sought to "clarif[y]" the existing pre-
540
Opinion of BLACKMUN, J.
cautions against confusing and nonuniform state laws and
regulations. S. Rep., at 12.5
Just as it acknowledges the evidence that Congress' changes in
the pre-emption provision were nonsubstantive, the plurality admits
that "portions of the legislative history of the 1969 Act suggest
that Congress was primarily concerned with positive enactments by
States and localities."
Ante, at 521. Indeed, the relevant
Senate Report explains that the revised pre-emption provision is
"intended to include not only action by State statute but by all
other administrative actions or local ordinances or regulations by
any political subdivisions of any State," a list remarkable for the
absence of any reference to common-law damages actions. S. Rep., at
12. Cf.,
e. g., 29 U. S. C. §§ 1144(a) and (c)(l)
(ERISA statute defines "any and all State laws" as used in
pre-emption provision to mean "all laws,
decisions, rules,
regulations, or
other State action having the effect of
law") (emphasis added). The plurality dismisses this statement with
the simple observation that "the language of the Act plainly
reaches beyond such [positive] enactments."
Ante, at 521.
Yet, as discussed above, the words of § 5(b) ("requirement or
prohibition") do not so "plainly" extend to common-law damages
actions, and the plurality errs in placing so much weight on this
fragile textual hook.
The plurality further acknowledges that, at the same time that
Congress amended the pre-emption provision of § 5(b), it made no
effort to alter the statement of purpose contained in § 2 of the
1965 Act.
Ante, at 521, n. 19. Although the
5 In the one reported case construing the scope of pre-emption
under the 1965 Act,
Banzhaf v. FCC--a case of which Congress
was aware, see S. Rep., at 7--the Court of Appeals for the District
of Columbia Circuit used the term "affirmative requirements" to
describe § 5(b)'s ban on "statement[s]." 132 U. S. App. D. C. 14,
22,
405 F.2d
1082, 1090 (1968), cert. denied
sub nom. Tobacco Institute,
Inc. v.
FCC, 396 U. S. 842 (1969). It is but a small
step from "affirmative requirement" to the converse, "negative
requirement" ("prohibition"), and, from there, to the single
explanatory phrase, "requirement or prohibition."
541
plurality relegates this fact to a footnote, the continued
vitality of § 2 is significant, particularly in light of the
Court's reliance on the same statement of purpose for its earlier
conclusion that the 1965 Act does
not pre-empt state
commonlaw damages actions. See
ante, at 519 (concluding that
Congress' expressed intent to avoid diverse, nonuniform, and
confusing regulations "most naturally refers to positive enactments
by [state legislatures and federal agencies], not to common-law
damages actions").
Finally, there is absolutely no suggestion in the legislative
history that Congress intended to leave plaintiffs who were injured
as a result of cigarette manufacturers' unlawful conduct without
any alternative remedies; yet that is the regrettable effect of the
ruling today that many state common-law damages claims are
pre-empted. The Court in the past has hesitated to find pre-emption
where federal law provides no comparable remedy. See Rabin, A
Sociolegal History of the Tobacco Tort Litigation, 44 Stan. L. Rev.
853, 869 (1992) (noting the "rather strong tradition of federal
deference to competing state interests in compensating injury
victims"). Indeed, in
Silkwood, the Court took note of
"Congress' failure to provide any federal remedy" for injured
persons, and stated that it was "difficult to believe that Congress
would, without comment, remove all means of judicial recourse for
those injured by illegal conduct." 464 U. S., at 251. See also
id., at 263 (BLACKMUN, J., dissenting) ("[I]t is
inconceivable that Congress intended to leave victims with no
remedy at all").
Unlike other federal statutes where Congress has eased the bite
of pre-emption by establishing "comprehensive" civil enforcement
schemes, see,
e. g., Ingersoll-Rand Co. v.
McClendon,
498 U. S. 133,
144-145 (1990) (discussing § 502(a) of ERISA), the Cigarette
Labeling and Advertising Act is barren of alternative remedies. The
Act merely empowers the Federal Trade Commission to regulate unfair
or deceptive advertising practices (15 U. S. C. § 1336),
establishes minimal
542
Opinion of BLACKMUN, J.
criminal penalties (misdemeanor and fine not to exceed $10,000)
for violations of the Act's provisions (§ 1338), and authorizes
federal courts, upon the Government's application, to enjoin
violations of the Act (§ 1339). Unlike the plurality, I am
unwilling to believe that Congress, without any mention of state
common-law damages actions or of its intention dramatically to
expand the scope of federal pre-emption, would have eliminated the
only means of judicial recourse for those injured by cigarette
manufacturers' unlawful conduct.
Thus, not only does the plain language of the 1969 Act fail
clearly to require pre-emption of petitioner's state commonlaw
damages claims, but there is no suggestion in the legislative
history that Congress intended to expand the scope of the
pre-emption provision in the drastic manner that the plurality
attributes to it. Our obligation to infer pre-emption only where
Congress' intent is clear and manifest mandates the conclusion that
state common-law damages actions are not pre-empted by the 1969
Act.6
III
Stepping back from the specifics of the plurality's preemption
analysis to view the result the plurality ultimately reaches, I am
further disturbed. Notwithstanding the Court's ready acknowledgment
that'" "[t]he purpose of Congress is the ultimate touchstone'" of
pre-emption analysis,"
ante, at 516 (quoting
Malone
v.
White Motor Corp., 435 U. S. 497, 504
(1978)), the plurality proceeds to create a crazy quilt
6 Every Court of Appeals to consider the question, including the
Third Circuit in an earlier opinion in this case, similarly has
concluded that state common-law damages claims are
not
expressly pre-empted under the 1969 Act. See,
e. g.,
Cipollone v.
Liggett Group, Inc., 789
F.2d 181, 185-186
(CA3 1986), cert. denied,
479 U. S. 1043 (1987);
Pennington v.
Vistron Corp., 876
F.2d 414, 418
(CA5 1989);
Roysdon v.
R.
J. Reynolds Tobacco Co., 849 F.2d
230, 234
(CA6 1988);
Palmer v.
Liggett Group,
Inc., 825 F.2d
620, 625
(CA1 1987). See also
Dewey v.
R.
J. Reynolds Tobacco Co., 121 N. J. 69, 85, 577 A. 2d
1239, 1247 (1990);
Forster v.
R. J.
Reynolds Tobacco Co., 437 N. W. 2d 655, 658 (Minn.
1989).
543
of pre-emption from among the common-law claims implicated in
this case, and in so doing reaches a result that Congress surely
could not have intended.
The most obvious problem with the plurality's analysis is its
frequent shift in the level of generality at which it examines the
individual claims. For example, the plurality states that
fraudulent-misrepresentation claims (at least those involving false
statements of material fact in advertisements) are "predicated not
on a duty 'based on smoking and health' but rather on a more
general obligation-the duty not to deceive," and therefore are not
pre-empted by § 5(b) of the 1969 Act.
Ante, at 528-529. Yet
failure-to-warn claimswhich could just as easily be described as
based on a "more general obligation" to inform consumers of known
risksimplicitly are found to be "based on smoking and health" and
are declared pre-empted. See
ante, at 524. The plurality
goes on to hold that express warranty claims are not preempted
because the duty at issue is undertaken by the manufacturer and is
not "imposed under State law."
Ante, at 525. Yet, as the
plurality itself must acknowledge, "the
general duty not to
breach warranties arises under state law,"
ibid. (emphasis
added); absent the State's decision to penalize such behavior
through the creation of a common-law damages action, no warranty
claim would exist.
In short, I can perceive no principled basis for many of the
plurality's asserted distinctions among the common-law claims, and
I cannot believe that Congress intended to create such a hodgepodge
of allowed and disallowed claims when it amended the pre-emption
provision in 1970. Although the plurality acknowledges that § 5(b)
fails to "indicate that any familiar subdivision of common-law
claims is or is not preempted,"
ante, at 523, it ignores the
simplest and most obvious explanation for the statutory silence:
that Congress never intended to displace state common-law damages
claims, much less to cull through them in the manner the plurality
does today. I can only speculate as to the difficulty
544
Opinion of SCALIA, J.
lower courts will encounter in attempting to implement today's
decision.
IV
By finding federal pre-emption of certain state commonlaw
damages claims, the decision today eliminates a critical component
of the States' traditional ability to protect the health and safety
of their citizens. Yet such a radical readjustment of federal-state
relations is warranted under this Court's precedents only if there
is clear evidence that Congress intended that result. Because I
believe that neither version of the Federal Cigarette Labeling and
Advertising Act evidences such a clear congressional intent to
pre-empt state common-law damages actions, I respectfully dissent
from Parts V and VI of JUSTICE STEVENS' opinion.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment in part and dissenting in part.
Today's decision announces what, on its face, is an
extraordinary and unprecedented principle of federal statutory
construction: that express pre-emption provisions must be construed
narrowly, "in light of the presumption against the pre-emption of
state police power regulations."
Ante, at 518. The life span
of this new rule may have been blessedly brief, inasmuch as the
opinion that gives it birth in Part I proceeds to ignore it in Part
V, by adjudging at least some of the common-law tort claims at
issue here pre-empted. In my view, there is no merit to this newly
crafted doctrine of narrow construction. Under the Supremacy
Clause, U. S. Const., Art. VI, cl. 2, our job is to interpret
Congress's decrees of pre-emption neither narrowly nor broadly, but
in accordance with their apparent meaning. If we did that job in
the present case, we would find, under the 1965 Act, preemption of
petitioner's failure-to-warn claims; and under the 1969 Act, we
would find pre-emption of petitioner's claims complete.
545
I
The Court's threshold description of the law of preemption is
accurate enough: Though we generally" 'assum[e] that the historic
police powers of the States [are] not to be superseded by ...
Federal Act unless that [is] the clear and manifest purpose of
Congress,'"
ante, at 516 (quoting
Rice v.
Santa Fe
Elevator Corp., 331 U. S. 218, 230
(1947)), we have traditionally not thought that to require express
statutory text. Where state law is in actual conflict with federal
law, see,
e. g., Pacific Gas &
Elec. Co. v.
State Energy Resources Conservation and Development Comm'n,
461 U. S. 190,
204 (1983), or where it "stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress,"
Hines v.
Davidowitz, 312 U. S. 52, 67 (1941),
or even where the nature of Congress's regulation, or its scope,
convinces us that "Congress left no room for the States to
supplement it,"
Rice, supra, at 230, we have had no
difficulty declaring that state law must yield. The ultimate
question in each case, as we have framed the inquiry, is one of
Congress's intent, as revealed by the text, structure, purposes,
and subject matter of the statutes involved. See,
e. g.,
English v.
General Electric Co., 496 U. S. 72, 78-79
(1990);
Shaw
The Court goes beyond these traditional principles, however, to
announce two new ones. First, it says that express pre-emption
provisions must be given the narrowest possible construction. This
is in its view the consequence of our oft-repeated assumption that,
absent convincing evidence of statutory intent to pre-empt, "'the
historic police powers of the States [are] not to be superseded,'"
see
ante, at 516. But it seems to me that assumption
dissolves once there is conclusive evidence of intent to pre-empt
in the express words of the statute itself, and the only remaining
question is what the
scope of that pre-emption is meant to
be. Thereupon, I think, our responsibility is to apply to the text
ordinary principles of statutory construction.
546
Opinion of SCALIA, J.
That is precisely what our express pre-emption cases have done.
Less than a month ago, in
Morales v.
Trans World
Airlines, Inc., 504 U. S. 374 (1992), we
held that the Airline Deregulation Act's provision pre-empting
state laws "relating to [airline] rates, routes, or services," 49
U. S. C. App. § 1305(a)(1), was broad enough to reach state fare
advertising regulations despite the availability of plausible
limiting constructions. We made no mention of any "plain-statement"
rule, or rule of narrow construction, but applied the usual
"
'''assumption that the ordinary meaning of [the statutory] language
accurately expresses the legislative purpose.'"'' Morales,
supra, at 383 (quoting
FMC Corp. v.
Holliday,
498 U. S. 52, 57
(1990)) (emphasis added). And last Term, in
Norfolk &
Western R. Co. v.
Train Dispatchers, 499 U. S. 117 (1991), we
interpreted an express pre-emption provision broadly despite the
fact that a well-respected canon of statutory construction
supported a narrower reading. See
id., at 129;
id.,
at 136 (STEVENS, J., dissenting). We said not a word about a
"presumption against ... preemption,"
ante, at 518, that was
to be applied to construction of the text.
In light of our willingness to find pre-emption in the absence
of
any explicit statement of pre-emptive intent, the notion
that such explicit statements, where they exist, are subject to a
"plain-statement" rule is more than somewhat odd. To be sure, our
jurisprudence abounds with rules of "plain statement," "clear
statement," and "narrow construction" designed variously to ensure
that, absent unambiguous evidence of Congress's intent,
extraordinary constitutional powers are not invoked, or important
constitutional protections eliminated, or seemingly inequitable
doctrines applied. See,
e. g., United States v.
Mitchell, 445
U. S. 535, 538 (1980) (waivers of federal sovereign immunity
must be "unequivocally expressed");
Will v.
Michigan
Dept. of State Police, 491 U. S. 58, 65 (1989)
(clear statement required to compel States to entertain damages
suits against themselves in state
547
courts);
Atascadero State Hospital v.
Scanlon,
473 U. S. 234,
243 (1985) (abrogation of state sovereign immunity must be
expressed "in unmistakable language"). But
none of those
rules exists alongside a doctrine whereby the same result so
prophylactically protected from careless explicit provision can be
achieved
by sheer implication, with no express statement of
intent at all. That is the novel regime the Court constructs
today.
The results seem odder still when one takes into account the
second new rule that the Court announces: "When Congress has
considered the issue of pre-emption and has included in the enacted
legislation a provision explicitly addressing that issue, ... we
need only identify the domain expressly pre-empted by [that
provision]."
Ante, at 517. Once there is an express
pre-emption provision, in other words, all doctrines of implied
pre-emption are eliminated. This proposition may be correct insofar
as implied "field" pre-emption is concerned: The existence of an
express preemption provision tends to contradict any inference that
Congress intended to occupy a field broader than the statute's
express language defines. However, with regard to implied
"conflict" pre-emption-i.
e., where state regulation
actually conflicts with federal law, or where state regulation
"stands as an obstacle to the accomplishment and execution" of
Congress's purposes,
Hines, supra, at 67-the Court's second
new rule works mischief. If taken seriously, it would mean, for
example, that if a federal consumer protection law provided that no
state agency or court shall assert jurisdiction under state law
over any workplace safety issue with respect to which a federal
standard is in effect, then a state agency operating under a law
dealing with a subject other than workplace safety
(e. g.,
consumer protection) could impose requirements entirely contrary to
federallaw-forbidding, for example, the use of certain safety
equipment that federal law requires. To my knowledge, we have never
expressed such a rule before, and our prior cases are
inconsist-
548
ent with it. See,
e. g., Jones v.
Rath Packing
Co., 430 U. S.
519, 540-543 (1977). When this second novelty is combined with
the first, the result is extraordinary: The statute that says
anything about pre-emption must say
everything; and
it must do so with great exactitude, as any ambiguity concerning
its scope will be read in favor of preserving state power. If this
is to be the law, surely only the most sporting of Congresses will
dare to say anything about pre-emption.
The proper rule of construction for express pre-emption
provisions is, it seems to me, the one that is customary for
statutory provisions in general: Their language should be given its
ordinary meaning.
FMC Corp. v.
Holliday, supra, at
57;
Shaw v.
Delta Air Lines, 463 U. S., at 97. When
this suggests that the pre-emption provision was intended to sweep
broadly, our construction must sweep broadly as well. See,
e. g., id., at 96-97. And when it bespeaks a narrow
scope of pre-emption, so must our judgment. See,
e. g., Fort
Halifax Packing Co. v.
Coyne, 482 U. S.l, 7-8 (1987).
Applying its niggardly rule of construction, the Court finds (not
surprisingly) that none of petitioner's claims-common-Iaw failure
to warn, breach of express warranty, and intentional fraud and
misrepresentation-is pre-empted under § 5(b) of the 1965 Act. And
save for the failure-to-warn claims, the Court reaches the same
result under § 5(b) of the 1969 Act. I think most of that is error.
Applying ordinary principles of statutory construction, I believe
petitioner's failure-towarn claims are pre-empted by the 1965 Act,
and all his common-law claims by the 1969 Act.
II
With much of what the plurality says in Part V of its opinion I
agree-that "the language of the [1969] Act plainly reaches beyond
[positive] enactments,"
ante, at 521; that the general
tort-law duties petitioner invokes against the cigarette companies
can, as a general matter, impose "requirementes] or prohibition[s]"
within the meaning of § 5(b) of the
549
1969 Act,
ibid.; and that the phrase "State law" as used
in that provision embraces state common law,
ante, at 523. I
take issue with the plurality, however, on its application of these
general principles to the present case. Its finding that they
produce only partial pre-emption of petitioner's common-law claims
rests upon three misperceptions that I shall discuss in turn, under
headings indicating the erroneously permitted claims to which they
apply.
A
Pre-1969 Failure-to- Warn Claims
According to the Court,l § 5(b) of the 1965 Act "is best read as
having superseded only positive enactments by legislatures or
administrative agencies that mandate
particular warning
labels."
Ante, at 518-519 (emphasis added). In essence, the
Court reads § 5(b)'s critical language "No
statement
relating to smoking and health ... shall be required" to mean "No
particular statement relating to smoking and health shall be
required." The Court reasons that because common-law duties do not
require cigarette manufacturers to include any
particular
statement in their advertising, but only
some statement
warning of health risks, those duties survive the 1965 Act. I see
no basis for this element of "particularity." To require a warning
about cigarette health risks is to require a "statement relating to
smoking and health." If the "presumption against ... pre-emption,"
ante, at 518, requires us to import limiting language into
the 1965 Act, I do not see why it does not require us to import
similarly limiting language into the 1969 Act-so that a
"requirement ... based on smoking and health ... with respect to
advertising" means only a
specific requirement, and not just
general, noncigarette-specific duties imposed by tort law. The
divergent treatment of the 1965 Act cannot be jus-
1 The plurality is joined by JUSTICES BLACKMUN, KENNEDY, and
SouTER in its analysis of the 1965 Act.
550
Opinion of SCALIA, J.
tified by the Act's statement of purposes, which, as the Court
notes, expresses concern with "diverse, nonuniform, and confusing
cigarette labeling and advertising
regulations." 15 U. s. C.
§ 1331(2) (emphasis added). That statement of purposes was left
untouched by Congress in 1969, and thus should be as restrictive of
the scope of the later § 5(b) as the Court believes it is of the
scope of the earlier one.2
To the extent petitioner's claims are premised specifically on
respondents' failure (during the period in which the 1965 Act was
in force) to include in their
advertising any statement
relating to smoking and health, I would find those claims, no less
than the similar post-1969 claims, pre-empted. In addition, for
reasons I shall later explain, see Part III,
infra, I would
find pre-emption even of those claims based on respondents' failure
to make health-related statements to consumers
outside their
advertising. However, since § 5(b) of the 1965 Act enjoins only
those laws that
require "statement[s]" in cigarette
advertising, those of petitioner's claims that, if accepted, would
penalize statements
voluntarily made by the cigarette
companies must be deemed to survive. As these would appear to
include petitioner's breach-ofexpress-warranty and intentional
fraud and misrepresentation claims, I concur in the Court's
judgment in this respect.
2 The Court apparently thinks that because § 4 of the Act,
imposing the federal package-labeling requirement, "itself sets
forth a
particular statement,"
ante, at 519, n. 16, §
5(b), the advertising pre-emption provision must be read to
proscribe only those state laws that compel the use of
particular statements in advertising. Besides being a
complete
non sequitur, this reasoning proves too much: The
similar prescription of a
particular warning in the 1969 Act
would likewise require us to confine the pre-emptive scope of that
later statute to specific, prescriptive "requirementEs] or
prohibition[s]" (which, I presume, would not include tort-law
obligations to warn consumers about product dangers). And under
both the 1965 and 1969 versions of the Act, the package-labeling
pre-emption provision of § 5(
a), no less than the
advertising pre-emption provision of §
5(b), would have to
be limited to the prescription of
particular language,
leaving the States free to impose general health-labeling
requirements. These results are obviously contrary to the Act's
stated purposes.
551
B
Post-1969 Breach-of-Express-Warranty Claims
In the context of this case, petitioner's
breach-of-expresswarranty claim necessarily embodies an assertion
that respondents' advertising and promotional materials made
statements to the effect that cigarette smoking is not unhealthy.
Making such statements civilly actionable certainly constitutes an
advertising "requirement or prohibition ... based on smoking and
health." The plurality appears to accept this, but finds that
liability for breach of express warranty is not "imposed under
State law" within the meaning of § 5(b) of the 1969 Act.
"[RJather," it says, the duty "is best understood as undertaken by
the manufacturer itself."
Ante, at 526. I cannot agree.
When liability attaches to a particular promise or
representation, it attaches
by law. For the making of a
voluntary promise or representation, no less than for the
commission of an intentional tort, it is the background law against
which the act occurs, and not the act itself, that supplies the
element of legal obligation. See
Home Building &
Loan
Assn. v.
Blaisdell, 290 U. S. 398, 429
(1934); N. J. Stat. Ann. §§ 12A:2-313(1), 12A:2-714, and 12A:2-715
(West 1962) (providing for enforcement of express warranties). Of
course, New Jersey's law of express warranty attaches legal
consequences to the cigarette manufacturer's voluntary conduct in
making the warranty, and in that narrow sense, I suppose, the
warranty obligation can be said to be "undertaken by the
manufacturer." But on that logic it could also be said that the
duty to warn about the dangers of cigarettes is undertaken
voluntarily by manufacturers when they choose to sell in New
Jersey; or, more generally, that
any legal duty imposed on
volitional behavior is not one imposed by law.
The plurality cites no authority for its curious view, which is
reason enough to doubt it. In addition, however, we rejected this
very argument last Term in
Norfolk &
Western
552
R. CO. v.
Train Dispatchers, where we construed a
federal exemption "from the antitrust laws and from all other law,"
49 U. S. C. § 11341(a), to include an exemption from contract
obligations. We observed, in a passage flatly inconsistent with the
plurality's analysis today, that "[a] contract has no legal force
apart from the law that acknowledges its binding character."
499 U. S., at 130. Cf.
id., at 139 (STEVENS, J.,
dissenting). I would find petitioner's claim for breach of express
warranty pre-empted by § 5(b) of the 1969 Act.
C
Post-1969 Fraud and Misrepresentation Claims
According to the plurality, at least one of petitioner's
intentional fraud and misrepresentation claims survives § 5(b) of
the 1969 Act because the common-law duty underlying that claim is
not "based on smoking and health" within the meaning of the Act.
See
ante, at 528-529. If I understand the plurality's
reasoning, it proceeds from the implicit assumption that only
duties deriving from laws that are specifically directed to
"smoking and health," or that are uniquely crafted to address the
relationship between cigarette companies and their putative
victims, fall within § 5(b) of the Act, as amended. Given that New
Jersey's tort-law "duty not to deceive,"
ante, at 529, is a
general one, applicable to all commercial actors and all kinds of
commerce, it follows from this assumption that § 5(b) does not
pre-empt claims based on breaches of that duty.
This analysis is suspect, to begin with, because the plurality
is unwilling to apply it consistently. As JUSTICE BLACKMUN cogently
explains, see
ante, at 543 (opinion concurring in part and
dissenting in part), if New Jersey's common-law duty to avoid false
statements of material fact-as applied to the cigarette companies'
behavior-is not "based on smoking and health," the same must be
said of New Jersey's common-law duty to warn about a product's
dangers.
Each duty transcends the relationship between the
cigarette com-
553
panies and cigarette smokers;
neither duty was
specifically crafted with an eye toward "smoking and health." None
of the arguments the plurality advances to support its distinction
between the two is persuasive. That Congress specifically
preserved, in both the 1965 and 1969 Acts, the Federal Trade
Commission's authority to police deceptive advertising practices,
see § 5(c) of the 1965 Act; § 7(b) of the 1969 Act;
ante, at
529, does not suggest that Congress intended comparable state
authority to survive § 5(b). In fact, at least in the 1965 Act
(which generally excluded federal as well as state regulation), the
exemption suggested that § 5(b) was broad enough to reach laws
governing fraud and misrepresentation. And it is not true that the
States' laws governing fraud and misrepresentation in advertising
impose identical legal standards, whereas their laws "concerning
the warning necessary to render a product 'reasonably safe'" are
quite diverse,
ibid. The question whether an ad featuring a
glamorous, youthful smoker with pearly-white teeth is
"misrepresentative" would almost certainly be answered differently
from State to State. See
ante, at 527 (discussing FTC's
initial cigarette advertising rules).
Once one is forced to select a
consistent methodology for
evaluating whether a given legal duty is "based on smoking and
health," it becomes obvious that the methodology must focus not
upon the ultimate source of the duty
(e. g., the common law)
but upon its proximate application. Use of the "ultimate source"
approach (i.
e., a legal duty is not "based on smoking and
health" unless the law from which it derives is directed only to
smoking and health) would gut the statute, inviting the very
"diverse, nonuniform, and confusing cigarette ... advertising
regulations" Congress sought to avoid. 15 U. S. C. § 1331(2). And
the problem is not simply the common law: Requirements could be
imposed by state executive agencies as well, so long as they were
operating under a
general statute authorizing their
supervision of "commercial advertising" or "unfair trade
practices." New
554
Opinion of SCALIA, J.
Jersey and many other States have such statutes already on the
books.
E. g., N. J. Stat. Ann. §56:8-1
et seq. (West
1989); N. Y. Gen. Bus. Law § 349
et seq. (McKinney 1988 and
Supp. 1992); Texas Bus. & Com. Code Ann. § 17.01
et seq.
(1987 and Supp. 1992).
I would apply to all petitioner's claims what I have called a
"proximate application" methodology for determining whether they
invoke duties "based on smoking and health"I would ask, that is,
whether, whatever the source of the duty, it imposes an obligation
in this case because of the effect of smoking upon health. On that
basis, I would find petitioner's failure-to-warn and
misrepresentation claims both pre-empted.
III
Finally, there is an additional flaw in the plurality's opinion,
a systemic one that infects even its otherwise correct disposition
of petitioner's post-1969 failure-to-warn claims. The opinion
states that, since § 5(b) proscribes only "requirementes] or
prohibition[s] ...
'with respect to ... advertising or
promotion,'" state-law claims premised on the failure to warn
consumers "through channels of communication other than advertising
or promotion" are not covered.
Ante, at 528 (emphasis
added); see
ante, at 524. This preserves not only the
(somewhat fanciful) claims based on duties having no relation to
the advertising and promotion (one could imagine a law requiring
manufacturers to disclose the health hazards of their products to a
state public-health agency), but also claims based on duties that
can be complied with by taking action
either within the
advertising and promotional realm
or elsewhere. Thus, if-as
appears to be the case in New Jersey-a State's common law requires
manufacturers to advise consumers of their products' dangers, but
the law is indifferent as to
how that requirement is met (i.
e., through "advertising or promotion" or otherwise), the
plurality would apparently be unprepared to find pre-emption as
long
555
as the jury were instructed not to zero in on deficiencies in
the manufacturers' advertising or promotion.
I think that is inconsistent with the law of pre-emption.
Advertising and promotion are the normal means by which a
manufacturer communicates required product warnings to prospective
customers, and by far the most economical means. It is implausible
that Congress meant to save cigarette companies from being
compelled to convey such data to consumers through that means, only
to allow them to be compelled to do so through means more onerous
still. As a practical matter, such a
"tell-the-consumers-any-way-youwish" law compels manufacturers to
relinquish the advertising and promotion immunity accorded them by
the Act. The test for pre-emption in this setting should be one of
practical compulsion, i.
e., whether the law practically
compels the manufacturers to engage in behavior that Congress has
barred the States from prescribing directly. Cf.,
e.
g., Ray v.
Atlantic Richfield Co., 435 U. S. 151, 173, n. 25
(1978). Though the hypothetical law requiring disclosure to a state
regulatory agency would seem to survive this test, I would have no
difficulty finding that test met with respect to state laws that
require the cigarette companies to meet general standards of "fair
warning" regarding smoking and health.
***
Like JUSTICE BLACKMUN, "I can only speculate as to the
difficulty lower courts will encounter in attempting to implement
[today's] decision."
Ante, at 543-544 (opinion concurring in
part and dissenting in part). Must express pre-emption provisions
really be given their narrowest reasonable construction (as the
Court says in Part III), or need they not (as the plurality does in
Part V)? Are courts to ignore all doctrines of implied pre-emption
whenever the statute at issue contains an express pre-emption
provision, as the Court says today, or are they to continue to
apply them, as we have in the past? For pre-emption purposes,
556
Opinion of SCALIA, J.
does "state law" include legal duties imposed on voluntary acts
(as we held last Term in
Norfolk &
Western R.
Co.), or does it not (as the plurality says today)? These and
other questions raised by today's decision will fill the lawbooks
for years to come. A disposition that raises more questions than it
answers does not serve the country well.
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