Supreme Court Rules Cigarette Labeling Act Preempts Some State Tort Law Claims
- Cipollone v Liggett Group, Inc. 505 U.S. 504 (US 1992)
06/24/92 THOMAS CIPOLLONE v. LIGGETT GROUP
| ||SUPREME COURT OF THE UNITED STATES|
| ||No. 90-1038|
112 S. Ct. 2608, 120 L. Ed. 2d 407, 60 U.S.L.W. 4703
||decided: June 24, 1992.
||THOMAS CIPOLLONE, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF
ROSE D. CIPOLLONE, PETITIONER
LIGGETT GROUP, INC., ET AL.
||ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
||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. Scalia, J., filed an opinion concurring in
the judgment in part and dissenting in part, in which Thomas, J., joined.
||JUSTICE STEVENS delivered the opinion of the Court, except as to Parts V
||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.*fn1
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.*fn2
The highest courts of the states of Minnesota and New Jersey, however, have
held that the federal statutes did not pre-empt similar common law claims.*fn3
Because of the manifest importance of the issue, we granted certiorari to
resolve the conflict, 500 U.S. (1991). We now reverse in part and affirm in
||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 their 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, divided 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 exspess warranty claims" allege that respondents had
expressly 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 wilfully
through their advertising, attempted to neutralize the [federally mandated]
warning" 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 (count 8, App. 89).
||As one of their defenses, respondents contented 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.*fn4
Accordingly, the court granted a motion to strike the pre-emption defense
||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,*fn5
the court concluded that congress' carefully drawn balance between the purposes
of warning the public of the harards of cigarette smoking and protecting the
interests of the 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:
||The act pre-empts those state lawd damages 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. Where the success of a state law damages 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 pre-empted as conflicting with the act." IBID. (FOOTNOTE OMITTED).
||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). CIPOLLONE V. LIGGETT GROUP, INC., 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.*fn6 ID., AT 669-672.
Following extensive discovery and a four-month trial, the jury answered a
seried 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
encountered 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.
||Although physicians had suspected a link between smoking and illness for
centuries, the first medical studies of that connection did not appear until
the 1920S. See U.S. Dept. of Health and Human Services, report of the surgeon
general, reducing the health consequenses 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,*fn7
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 it 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
Cong. Rec. 13900-13902 (1965) (STATEMENT OF SEN. MOSS). Upon a congressional
request, The FTC postponed enforcement of its new regulation for six months.
In July 1965, Congress enacted the federal cigarette labeling and advertising
act.*fn8 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)).*fn9
||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, non-uniform
and confusing cigarette labeling and advertising regulations.*fn10
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 proceedings 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." 34 Fed. Reg. 1959 (1969). State
authorities also prepared to take actions regulating cigarette advertisements.*fn11
||It was in this context that Congress enacted the Public Health Cigarette
Smoking Act of 1969,*fn12 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
||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).
||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, the
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. 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 Federal Savings & 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 pre-emption provision in
the 1969 Act encompassed state common law claims.*fn13
789 F.2d, at 185-186. It was also 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.
||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 rule-making bodies from mandating particular
cautionary statements on cigarette labels (§ 5(a)) or in cigarette advertisements
||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, 131-132 (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,*fn14
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
superseded only positive enactments by legislatures or administrative agencies
that mandate particular warning labels.*fn15
||This reading comports with the 1965 Act's statement of purpose, which expressed
an intent to avoid diverse, non-uniform, and confusing 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. 89-449, 89th
Cong., 1st Sess., 4 (1965), and to pre-empt [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).*fn16
||For these reasons, we conclude that § 5 of the 1965 Act only pre-empted
state and federal rulemaking bodies from mandating particular cautionary statements
and did not pre-empt state law damages actions.*fn17
||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
statements" but rather requirement[s] or prohibitions . . . 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.*fn18
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,
inferences 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, we cannot accept the parties' claim that the 1969 Act did not alter
the reach of § 5(b).*fn19
||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 prohibitions" and that Congress intended
only to trump state statutes, injunctions, or executive pronouncements."*fn20
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 no "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. 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 pre-emptive 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. 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. , , 111 S. Ct. 1156, 113 L. Ed. 2d 95 (1991) (slip
op., at 11). 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 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,
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 pre-empts 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."*fn21
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) pre-empts 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.*fn22 The
central inquiry in each case is 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' testing or research practices or other actions unrelated to advertising
||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 1991), 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 pre-empted" 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
||A manufacturer's liability for breach of an express warranty derives from,
and is measured by, the terms of that warranty. Accordingly, the "requirements"
imposed by a express warranty claim are not imposed under State law," but
rather imposed by the warrantor.*fn23
If, for example, a 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).*fn24
||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 warranties made by respondents, that claim is not pre-empted by the
||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 state-law 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., at 8356.
||Long-standing 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 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.*fn25
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 not predicated on a duty based on smoking and health"
but rather on a more general obligation -- 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 practices -- an 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.*fn26
||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, non-uniform, 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
are not pre-empted by § 5(b) of the 1969 Act.*fn27
||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.*fn28
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.
||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 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.
||893 F.2d 541, reversed in part, affirmed in part, and remanded.
||JUSTICE BLACKMUN, with whom JUSTICE KENNEDY and JUSTICE SOUTER join, concurring
in part, concurring in the judgment in part, and dissenting in part.
||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.
||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 (the 1965 Act) and the Public Health Cigarette Smoking Act of 1969 (the
1969 Act) is "governed entirely by the express language" of the statutes'
pre-emption provisions. Ante, at 10. Where, as here, Congress has included
in legislation a specific provision addressing -- and indeed, entitled --
pre-emption, the Court's task is one of statutory interpretation -- only to
"identify the domain expressly pre-empted" by the provision. Ante, at 11.
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. , (1990) (slip
op. 4), quoting Park 'N Fly, Inc. v. Dollar Park and 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 pre-empted by federal law in the absence
of clear and unambiguous evidence that Congress intended that result. See
ante, at 9. The Court describes this reluctance to infer pre-emption in ambiguous
cases as a "presumption against the pre-emption of state police power regulations."
Ante, at 11-12. 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, 146-152 (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. Louisiana, 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 ("We 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,
||The principles of federalism and respect for state sovereignty that underlie
the Court's reluctance to find pre-emption 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.*fn1 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 9 (quoting Rice v. Santa Fe Elevator
Corp., 331 U.S., at 230).
||I also agree with the Court's application of the foregoing principles in
part IV of its opinion, where it concludes that none of petitioner's common-law
damages claims are pre-empted 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 11. As the Court recognizes,
this interpretation comports with Congress' stated purpose of avoiding " diverse,
non-uniform, and confusing labeling and advertising regulations '" relating
to smoking and health. Ante, at 12 (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.
||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 acknowledgement that the 1965 Act does not pre-empt state common-law
damages claims, I find the Court'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 common-law damages actions
than did the language of its predecessor in the 1965 Act. Nonetheless, the
Court reaches a different conclusion, and its reasoning warrants scrutiny.
||The Court premises its pre-emption ruling on what it terms the "substantial
changes" wrought by Congress in § 5(b), ante, at 14, 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 Court 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 16. I do disagree, however, with the
Court'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"); 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.
, , 111 S. Ct. 1156, 113 L. Ed. 2d 95 (1991) (slip op. 5-6) (STEVENS, J.,
dissenting) (declining to read the phrase "all other law, including State
and municipal law" broadly).
||Although the Court flatly states that the phrase "no requirement or prohibition"
"sweeps broadly" and "easily encompasses obligations that take the form of
common law rules," ante, at 15, 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 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 "act
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 Court's conclusion that the phrase "requirement
or prohibition" encompasses common-law actions -- is significantly more complicated
than the Court's brief quotation from San Diego Building Trades Council v.
Garmon, 359 U.S. 236, 247 (1959), see ante, at 15, 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-to-warn 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 enactments 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 acknowledgement, 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 12,*fn2
the Court 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
common-law actions at issue in this case. See ante, at 14-15. I am not persuaded.
Not only has the Court previously distinguished Garmon,*fn3
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, "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),*fn4
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. The plain language
of the 1969 Act's modified pre-emption provision simply cannot bear the broad
interpretation the Court would impart to it.
||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
Court acknowledges the evidence that Congress itself perceived the changes
in § 5(b) to be a mere "clarification" of the existing narrow pre-emption
provision, ante, at 14 (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.'" Id., at 14, quoting United States v. Price,
361 U.S. 304, 313 (1960). The Court 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 & n. 8 (1969).
||Viewing the revisions to § 5(b) as generally non-substantive 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 "clarify" the existing precautions against
confusing and non-uniform state laws and regulations. S. Rep., p. 12.*fn5
||Just as it acknowledges the evidence that Congress' changes in the pre-emption
provision were non-substantive, the Court 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 15. 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., p. 12. Compare, e.g., 29 U.S.C. §§ 1144(a) and (c)(1)
(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 Court dismisses this statement with
the simple observation that "the language of the Act plainly reaches beyond
such [positive] enactments." Ante, at 15. Yet, as discussed above, the words
of § 5(b) ("requirement or prohibition") do not so "plainly" extend to common-law
damages actions, and the Court errs in placing so much weight on this fragile
||The Court 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 14, n. 19. Although
the Court 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 common-law damages actions. See ante, at 12 (concluding that
Congress' expressed intent to avoid diverse, non-uniform, 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 Court's 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)
("it is inconceivable that Congress intended to leave victims with no remedy
||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. , , 111 S. Ct. 478, 112 L. Ed. 2d 474 (1990)
(slip op. 9-10) (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 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 Court, 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 common-law 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 Court
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.*fn6
||Stepping back from the specifics of the Court's pre-emption analysis to
view the result the Court ultimately reaches, I am further disturbed. Notwithstanding
the Court's ready acknowledgement that " the purpose of Congress is the ultimate
touchstone' of pre-emption analysis," ante, at 9 (quoting Malone v. White
Motor Corp., 435 U.S. 497, 504 (1978)), the Court proceeds to create a crazy
quilt 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 Court's analysis is its frequent shift
in the level of generality at which it examines the individual claims. For
example, the Court states that fraudulent misrepresentation claims (at least
those involving false statements of material fact in advertisements) are "not
predicated 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 22. Yet failure to warn claims -- which could
just as easily be described as based on a "more general obligation" to inform
consumers of known risks -- implicitly are found to be "based on smoking and
health" and are declared pre-empted. See ante, at 18. The Court goes on to
hold that express warranty claims are not pre-empted because the duty at issue
is undertaken by the manufacturer and is not "imposed under State law." Ante,
at 19. Yet, as the Court 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 Court's asserted
distinctions among the common-law claims, and I cannot believe that Congress
intended to create such a hodge-podge of allowed and disallowed claims when
it amended the pre-emption provision in 1970. Although the Court acknowledges
that § 5(b) fails to "indicate that any familiar subdivision of common law
claims is or is not pre-empted," ante, at 17, 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 Court does today. I can only speculate as to the difficulty
lower courts will encounter in attempting to implement the Court's decision.
||By finding federal pre-emption of certain state common-law damages claims,
the Court 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 the Court's
||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 12. 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, pre-emption of the petitioner's failure-to-warn claims;
and under the 1969 Act, we would find pre-emption of the petitioner's claims
||The Court's threshold description of the law of pre-emption 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 9 (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. 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 Elec. Co., 496 U.S. 72,
78-79 (1990); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983).
||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 11-12. 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.
||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. , 112 S. Ct.
2031, 119 L. Ed. 2d 157 (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 (slip op., at 6) (quoting FMC Corp. v. Holliday, 498 U.S. , , 111 S. Ct.
403, 112 L. Ed. 2d 356 (1990) (slip op., at 4)) (emphasis added). And last
Term, in Norfolk & Western R. Co. v. American Train Dispatchers Ass'n, 499
U.S. , 111 S. Ct. 1156, 113 L. Ed. 2d 95 (1991), we interpreted an express
preemption provision broadly despite the fact that a well-respected canon
of statutory construction supported a narrower reading. See id., at (slip
op., at 11); id., at (slip op., at 3-4) (STEVENS, J., dissenting). We said
not a word about a "presumption against . . . preemption," ante, at 11, 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 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 11. 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 pre-emption 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 federal law -- 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 inconsistent 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 (slip op., at 4); 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., Inc. v. Coyne, 482 U.S. 1, 7-8 (1987). Applying
its niggardly rule of construction, the Court finds (not surprisingly) that
none of petitioner's claims -- common-law 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-to-warn claims are pre-empted by the 1965 Act, and all
his common-law claims by the 1969 Act.
||With much of what the plurality says in Part V of its opinion I agree --
that "the language of the  Act plainly reaches beyond [positive] enactments,"
ante, at 15; that the general tort-law duties petitioner invokes against the
cigarette companies can, as a general matter, impose "requirements or prohibitions"
within the meaning of § 5(b) of the 1969 Act, ibid. ; and that the phrase
"State law" as used in that provision embraces state common law, ante, at
16. 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.
||Pre-1969 Failure-to-Warn Claims
||According to the Court,*fn1
§ 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 12 (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 12,
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 justified by the Act's statement of purposes, which,
as the Court notes, expresses concern with "diverse, non-uniform, 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.*fn2
||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 infra, Part III, 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 "statements"
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-of-express-warranty
and intentional fraud and misrepresentation claims, I concur in the Court's
judgment in this respect.
||Post-1969 Breach-of-Express-Warranty Claims
||In the context of this case, petitioner's breach-of-express-warranty 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. "Rather," it says, the duty "is best understood as undertaken by the
manufacturer itself." Ante, at 19. 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 R. v. American Train Dispatchers Assn., 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 (slip op., at 12). Compare id., at (slip
op., at 5-6) (STEVENS, J., dissenting). I would find petitioner's claim for
breach of express warranty pre-empted by § 5(b) of the 1969 Act.
||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 22. 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," ibid., 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 13 (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 companies
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 22-23, 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, ante, at 23. 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 21 (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, non-uniform, 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 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.
||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
"requirements or prohibitions . . . 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 22 (emphasis added); see ante, at 18. 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 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-you-wish" 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 14 (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, 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 law-books for years to come. A disposition that raises more
questions than it answers does not serve the country well.
||*fn1 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. 2201. Because petitioner's claims arose before 1984,
neither party relies on this later Act.
||*fn2 The Court of Appeals'
analysis was initially set forth in Cipollone v. Liggett Group,
Inc., 789 F.2d 181 (CA3 1986). Other Federal Courts havd 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 (CA11 1987); Palmer v. Liggett Group, I n c., 825
F.2 d 620 (CA1 1987).
||*fn3 Forster v. R. J. Reynolds
Tobacco Co., 437 N. W. 2d 655 (MINN. 1989); Dewey v. R. J. Reynolds Tobacco
Co., 121 N.J. 69, 577 A. 2d 1239 (1990).
||*fn4 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.
||*fn5 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, non-uniform, and confusing cigarette labeling and advertising
regulations with respect to any relationship between smoking and health."
15 U.S.C. § 1331 (1982 ED.).
||*fn6 We are not presented with
any question concerning these claims.
||*fn7 SEE, 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).
||*fn8 PUB. L. 89-92, 79 STAT.
282, AS AMENDED, 15 U.S.C. §§ 1331-1340.
||*fn9 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.
||*fn10 SEE N. 5, SUPRA.
||*fn11 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.
||*fn12 Pub. L. 91-222, 84
Stat. 87, as amended, 15 U.S.C. §§ 1331-1340.
||*fn13 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 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.
||*fn14 Pub. L. 99-252, 100
Stat. 30, as codified, 15 U.S.C. §§ 4401-4408.
||*fn15 Cf. Banzhaf v. FCC,
132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. denied, 396 U.S. 842 (1969)
(holding that 1965 Act did not pre-empt FCC's fairness policy as applied to
||*fn16 JUSTICE 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.
||*fn17 This 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
||*fn18 See Brief for Petitioner
23-24; Brief for Respondents 21-23.
||*fn19 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 §
||*fn20 Brief for Petitioner
||*fn21 Brief for Respondents
||*fn22 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 savings 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 as a whole -- it was simply pre-empting particular common law claims,
while saving others.
||*fn23 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 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").
||*fn24 JUSTICE 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 8); 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 Railway Co. v. American Train Dispatchers
Assn., U.S. , (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.
||*fn25 The District Court
stated that this claim consists of the following elements: 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).
||*fn26 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 (emphasis supplied).
||*fn27 Both JUSTICE BLACKMUN
and JUSTICE SCALIA challenge the level of generality employed in our analysis.
JUSTICE BLACKMUN contends that, as a matter of consistency, we should construe
failure-to-warn claims not as based on smoking and health, but rather as based
on the broader duty "to inform consumers of known risks." Post, at 13. JUSTICE
SCALIA contends that, again as a matter of consistency, we should construe
fraudulent misrepresentation claims not as based on a general duty not to
deceive but rather as "based on smoking and health." Admittedly, each of these
positions has some conceptual attraction. However, our ambition here is not
theoretical elegance, but rather a fair understanding of congressional purpose.
To analyze failure to warn claims at the highest level of generality (as
JUSTICE BLACKMUN would have us do) would render the 1969 amendments almost
meaningless and would pay too little respect to Congress' substantial reworking
of the Act. On the other hand, to analyze fraud claims at the lowest level
of generality (as JUSTICE SCALIA would have us do) would conflict both with
the background presumption against preemption and with legislative history
that plainly expresses an intent to preserve the "police regulations" of
the States. See supra, n.25.
||*fn28 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.,
||*fn1 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
||*fn2 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. § 4401
et seq. ; Occupational Safety and Health Act of 1970, 84 Stat. 1500, 29 U.S.C.
§ 651 et seq., as construed in Gade v. National Solid Wastes Mgmt. Assn.,
U.S. , 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992).
||*fn3 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).
||*fn4 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,
496 U.S., at 86, 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.
||*fn5 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., p. 7--the Court of Appeals
for the District of Columbia Circuit used the term "affirmative requirements"
to describe § 5(b)'s ban on "statements." 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."
||*fn6 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).
||*fn1 The plurality is joined
by JUSTICES BLACKMUN, KENNEDY, AND SOUTER in its analysis of the 1965 Act.
||*fn2 The Court apparently
thinks that because § 4 of the Act, imposing the federal package-labeling
requirement, "itself sets forth a particular statement," ante, at 13, 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 "requirements or prohibitions" (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.
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