Supreme Court Decides Tobacco Preemption Case

Plaintiffs in "light" cigarette litigation got an early Christmas present yesterday. In a 5-4 decision, the Supreme Court decided in Altria Group, Inc. v. Good that the Federal Cigarette Labeling and Advertising Act does not expressly or impliedly preempt state law claims (in this case, a claim under the Maine Unfair Trade Practices Act).

In Good, the plaintiffs were long-time smokers of “light” cigarettes manufactured by Philip Morris, which is a subsidiary of Altria Group, Inc. They brought claims under the MUTPA, alleging that the defendants used fraudulent advertising that conveyed the message that “light” cigarettes have less tar and nicotine. The district court granted summary judgment in favor of the defendants on the grounds that the plaintiffs’ claims were preempted by the FCLAA.

The majority opinion, written by Justice Stevens, held as follows:

We conclude, as we did in Cipollone, that the Labeling Act does not pre-empt
state-law claims like respondents’ that are predicated on the duty not to
deceive. We also hold that the FTC’s various decisions with respect to
statements of tar and nicotine content do not impliedly pre-empt respondents’
claim. Respondents still must prove that petitioners’ use of “light” and
“lowered tar” descriptors in fact violated the state deceptive practices
statute, but neither the Labeling Act’s pre-emption provision nor the FTC’s
actions in this field prevent a jury from considering that claim. . . .

Justice Thomas, joined by Chief Justice Roberts, Justice Scalia, and Justice Alito, dissented, concluding:

The Court today elects to convert the Cipollone plurality opinion
into binding law, notwithstanding its weakened doctrinal foundation, its
atextual construction of the statute, and the lower courts’ inability to apply
its methodology. The resulting confusion about the nature of a claim’s
“predicate duty” and inevitable disagreement in the lower courts as to what type
of representations are “material” and “misleading” will have the perverse effect
of increasing the nonuniformity of state regulation of cigarette advertising,
the exact problem that Congress intended § 5(b) to remedy. It may even force us
to yet again revisit the Court’s interpretation of the Labeling Act.
Because I believe that respondents’ claims are preempted under § 5(b) of
the Labeling Act, I respectfully dissent.

See here and here for more analysis of the Court's opinion.