The Supreme Court is scheduled to hear its first case of the new term on Monday, October 6. The first case of the day will be Altria Group and Phillip Morris v. Good, a case that centers around whether a suit filed by the state of Maine against Phillip Morris and others for deceptive advertising by using ‘light’ and ‘lowered tar and nicotine’ cigarette labels. You can find the petitioner’s brief here, respondent’s brief here, and the reply brief here.
Federal Cigarette Labeling and Advertising Act of 1965 requires cigarette companies to report their cigarettes nicotine and tar contents based on procedures now known as the ‘FTC Test.’ Cigarette makers are then allowed to advertise their cigarettes with descriptors like ‘light,’ ‘low tar,’ and ‘reduced tar and nicotine’ based on the results of these tests. The Labeling Act also expressly denied the states the power impose additional restrictions upon cigarette companies based on health risks based on the idea that any additional regulations could seriously impead the flow of interstate commerce and the national economy.
(a) Additional statements
No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.
(b) State regulations
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 chapter.
A suit was filed in the state of Maine alleging that the use of these descriptors violates state deceptive advertising law based on the fact that descriptors be misleading not because the cigarettes may in fact have lowered contents of tar and nicotine, but because smokers are more likely to smoke more of these cigarettes or take deeper breaths, ultimately intaking the same amount of tar and nicotine that they would recieve from normal cigarettes.
The district court sided with PMUSA and offered summary judgement based on the idea that arguments proposed by the respondent were necessarily intertwined with the debate over the health of cigarettes and were therefore preempted by the Labeling Act.
The First Circuit reversed and held that the state’s suit was not preempted by the Labeling Act despite the fact that they acknowledged that the argument was centered around the relationship between ‘smoking and health.’ The court of appeals reasoned that the Labeling Act’s protection against state action on things related to ‘smoking and health’ did not preempt a broader state-law duty.
According to many Court-watchers, the Court is likely to clarify its preemption jurisdiction in a way that furthers the Riegel v. Medtronic(2008) line of precedent in which general state-law obligations to be preempted by more specific federal preemption clauses. A similar case was decided in the Fifth Circuit with a different outcome and the Court will not be asked to clarify the real meaning of the Labeling Act’s preemption protection. One of the biggest questions during oral arguments will be the question of how this case is any different from Riegel, decided less than a year ago. The answer, it seems, is not very much.