Amicus Curiae Brief — Philip Morris USA Inc., Petitioner v. Armand Fontaine, Individually and as Personal Representative of the Estate of Barbara Ellen Fontaine

No. 26-235

IN THE

Supreme Court of the United States

___________

PHILIP MORRIS USA I NC.,

Petitioner,

v.

ARMAND FONTAINE, individually and as

personal representative of the

Estate of Barbara Ellen Fontaine,

Respondent.

___________

On Petition for Writ of Certiorari to the

Massachusetts Supreme Judicial Court

___________

BRIEF OF WASHINGTON LEGAL FOUNDATION

AS AMICUS CURIAE SUPPORTING PETITIONER

___________

September 4, 2026

CORY L. ANDREWS

Counsel of Record

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org

QUESTION PRESENTED

Whether Altria Group, Inc. v. Good, 555 U.S.

70 (2008), should be revisited and overruled.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ..................................... ii

TABLE OF AUTHORITIES .................................. iv

INTEREST OF AMICUS CURIAE ........................ 1

INTRODUCTION & SUMMARY

OF ARGUMENT .................................................. 2

ARGUMENT ........................................................... 5

I.

THE PRESUMPTION AGAINST PREEMPTION IS

NOT LAW ............................................................ 5

A. Both the Constitution and history refute

it .................................................................... 5

B. It is not even a presumption ........................ 7

C. Franklin should have settled the

question, but state courts have not

heeded it...................................................... 11

II. ALTRIA

SHOULD

FALL

WITH

THE

PRESUMPTION THAT BUILT IT .......................... 14

A. Altria was wrong then and is

indefensible now ......................................... 14

B. The decision below is the dead star’s

light still at work ........................................ 17

III. NATIONAL MARKETS CANNOT PRICE A

DOCTRINE THIS COURT HAS ABANDONED

BUT NOT OVERRULED ....................................... 20

CONCLUSION ...................................................... 23

iv

TABLE OF AUTHORITIES

Page(s)

CASES:

Air Evac EMS, Inc. v. Cheatham,

910 F.3d 751 (4th Cir. 2018) ............................... 11

Altria Group, Inc. v. Good,

555 U.S. 70 (2008) ............................4, 9–20, 22, 23

Atay v. Cnty. of Maui,

842 F.3d 688 (9th Cir. 2016) ............................... 11

Bates v. Dow Agrosciences LLC,

544 U.S. 431 (2005) ............................................. 15

Bendix Autolite Corp. v. Midwesco Enters., Inc.,

486 U.S. 888 (1988) ............................................... 9

Biden v. Nebraska,

600 U.S. 477 (2023) ................................................. 6

Bruesewitz v. Wyeth LLC,

562 U.S. 223 (2011) ......................................... 10, 20

Cal. Rest. Ass’n v. City of Berkeley,

89 F.4th 1094 (9th Cir. 2024) ............................... 11

Carson v. Monsanto Co.,

72 F.4th 1261 (11th Cir. 2023) ............................. 11

Chamber of Com. of the U.S. v. Whiting,

563 U.S. 582 (2011) ............................................. 2, 9

Cipollone v. Liggett Grp., Inc.,

505 U.S. 504 (1992) ................. 3, 6, 9, 12, 13, 15, 16

Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy

USA, Inc., 586 P.3d 161 (Colo. 2025), cert. granted

sub nom. Suncor Energy (U.S.A.) Inc. v. Cnty.

Comm’rs of Boulder Cnty., No. 25-170 (U.S. Feb.

23, 2026) ................................................................ 12

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Cole v. Pa. Dep’t of Envtl. Prot.,

329 A.3d 1228 (Pa. 2025) .......................... 12, 16, 21

Council for Responsible Nutrition v. James,

159 F.4th 155 (2d Cir. 2025) ................................. 11

Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013) ............................................... 10

Dialysis Newco, Inc. v. Cmty. Health Sys. Grp.

Health Plan, 938 F.3d 246 (5th Cir. 2019) ........... 11

EagleMed LLC v. Cox,

868 F.3d 893 (10th Cir. 2017) ............................... 11

Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.

Dist., 541 U.S. 246 (2004) ..................................... 19

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985) ................................................. 8

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ..................................... 7

Girouard v. United States,

328 U.S. 61 (1946) ................................................. 17

Happel v. Guilford Cnty. Bd. of Educ.,

913 S.E.2d 174 (N.C. 2025) ................................... 12

Kaipust v. Echo Glob. Logistics, Inc.,

271 N.E.3d 1066 (Ill. App. Ct. 2025) .................... 13

Kansas v. Garcia,

589 U.S. 191 (2020) ................................................. 6

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ........................................... 9, 13

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001) ............................................... 19

Medicaid & Medicare Advantage Prods. Ass’n of

P.R., Inc. v. Emanuelli Hernández, 58 F.4th 5

(1st Cir. 2023) ........................................................ 11

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ..................................... 9, 10, 13

Merck Sharp & Dohme Corp. v. Albrecht,

587 U.S. 299 (2019) ................................................. 1

Mockowik v. Kan. City, St. Joseph & Council Bluffs

R.R., 94 S.W. 256 (Mo. 1906) .............................. 2, 8

Monsanto Co. v. Durnell,

146 S. Ct. 2001 (2026) ..................................... 20, 21

Mut. Pharm. Co. v. Bartlett,

570 U.S. 472 (2013) ............................................... 10

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) ................................... 10, 19, 20

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) ............................................. 5, 6

Puerto Rico v. Franklin Cal. Tax-Free Tr.,

579 U.S. 115 (2016) ............... 2–5, 11, 12, 14–16, 20

R.J. Reynolds Tobacco Co. v. City of Edina,

60 F.4th 1170 (8th Cir. 2023) ............................... 11

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947) ....................................... 7, 8, 15

Riegel v. Medtronic, Inc.,

552 U.S. 312 (2008) ......................................... 10, 20

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Rowe v. N.H. Motor Transp. Ass’n,

552 U.S. 364 (2008) ......................................... 10, 20

Seven Cnty. Infrastructure Coal. v. Eagle Cnty.,

605 U.S. 168 (2025) ............................................... 20

Shuker v. Smith & Nephew, PLC,

885 F.3d 760 (3d Cir. 2018) .................................. 11

Swift & Co. v. Wickham,

382 U.S. 111 (1965) ............................................... 17

Town of Delafield v. Cent. Transp. Kriewaldt,

944 N.W.2d 819 (Wis. 2020) ........................... 12, 16

Viking River Cruises, Inc. v. Moriana,

596 U.S. 639 (2022) ................................................. 1

Watson v. Air Methods Corp.,

870 F.3d 812 (8th Cir. 2017) (en banc) ................. 11

CONSTITUTIONAL PROVISIONS:

U.S. Const. art. VI, cl. 2 ....................................... 5, 13

STATUTES:

7 U.S.C. § 136v(b)..................................................... 20

15 U.S.C. § 1331(2)(B) ........................................ 17, 20

15 U.S.C. § 1333 ....................................................... 17

15 U.S.C. § 1334 ......................................................... 3

15 U.S.C. § 1334(b)......................... 3, 4, 14, 15, 17, 18

21 U.S.C. § 360k(a) .................................................. 20

21 U.S.C. § 387 et seq. .............................................. 22

21 U.S.C. § 678 ......................................................... 20

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

28 U.S.C. § 1257(a)................................................... 14

42 U.S.C. § 300aa-22(b)(1) ....................................... 20

49 U.S.C. § 14501(c)(1) ............................................. 20

OTHER SOURCES:

Barrett, Amy Coney, Substantive Canons and

Faithful Agency, 90 B.U. L. Rev. 109 (2010) ...... 6, 7

Brief of Washington Legal Foundation as Amicus

Curiae Supporting Petitioners, Altria Grp., Inc.

v. Good, 555 U.S. 70 (2008) (No. 07-562) (Apr. 7,

2008) ...................................................................... 16

Davis, Mary J., Unmasking the Presumption in

Favor of Preemption, 53 S.C. L. Rev. 967 (2002)..10

Dinh, Viet D., Reassessing the Law of Preemption,

88 Geo. L.J. 2085 (2000) ......................................... 7

Fisk, Otis H., Presumptions, 11 Cornell L.Q. 20

(1925) ....................................................................... 8

Gardbaum, Stephen, New Deal Constitutionalism

and the Unshackling of the States, 64 U. Chi.

L. Rev. 483 (1997) ................................................... 7

Hills, Roderick M., Jr., Against Preemption: How

Federalism Can Improve the National Legislative

Process, 82 N.Y.U. L. Rev. 1 (2007) ........................ 9

Morgan, Edmund M., Some Observations Concerning

Presumptions, 44 Harv. L. Rev. 906 (1931)............ 8

Nabokov, Vladimir, Breaking the News (1935), in A

Russian Beauty and Other Stories (1973) ............ 16

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Nelson, Caleb, Preemption,

86 Va. L. Rev. 225 (2000) ........................................ 5

Note, New Evidence on the Presumption Against

Preemption: An Empirical Study of Congressional

Responses to Supreme Court Preemption Decisions,

120 Harv. L. Rev. 1604 (2007) ................................ 8

Roberts, Ernest F., An Introduction to the Study of

Presumptions, 4 Vill. L. Rev. 475 (1959) ................ 8

Scalia, Antonin, A Matter of Interpretation: Federal

Courts and the Law (1997) ..................................... 9

Scalia, Antonin, The Rule of Law as a Law of Rules,

56 U. Chi. L. Rev. 1175 (1989) .............................. 10

Scalia, Antonin & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ................ 6

1

INTEREST OF AMICUS CURIAE *

Washington Legal Foundation is a nonprofit,

public-interest law firm and policy center with

supporters nationwide. WLF promotes free enterprise,

individual rights, limited government, and the rule of

law. It often appears as an amicus in important

preemption cases to help ensure that federal law

operates uniformly and efficiently, as Congress

intended. See, e.g., Viking River Cruises, Inc. v.

Moriana, 596 U.S. 639 (2022); Merck Sharp & Dohme

Corp. v. Albrecht, 587 U.S. 299 (2019).

WLF’s concern in this case is a practical one.

When state law—above all, a state tort verdict—

overrides the uniform national rules Congress has

enacted, regulated businesses must answer two

masters: a federal regime that prescribes what they

must do, and fifty state-law regimes free to punish

them for doing it. Express preemption clauses are

Congress’s chosen instrument for preventing that

result, and they work only if courts read them to mean

what they say.

WLF appeared as amicus in support of Philip

Morris USA in the Supreme Judicial Court below,

urging preemption under the Labeling Act’s express

command. It appears here because the decision below

perpetuates both a doctrine this Court has repudiated

and a precedent no sitting Justice joined. Those defects

* No party’s counsel authored any part of this brief. No one,

other than WLF and its counsel, helped pay for the brief’s

preparation or submission. This brief’s filing more than ten days

before the due date constitutes timely notice to all parties of WLF’s

intent to file.

2

come at the expense of the legal certainty on which risk

is priced, capital is allocated, and national markets

depend.

INTRODUCTION & SUMMARY OF ARGUMENT

“Presumptions may be looked on as the bats of the

law, flitting in the twilight but disappearing in the

sunshine of actual facts.” Mockowik v. Kan. City, St.

Joseph & Council Bluffs R.R., 94 S.W. 256, 262 (Mo.

1906) (Lamm, J.). Judge Lamm knew what a

presumption is. It is a modest thing. It fills a gap in the

proof, and it vanishes the moment real evidence

arrives. Prove the company owned the truck, and the

law presumes the driver was on company business—

until the employer, who knows the truth, comes

forward with it. Prove seven years’ unexplained

absence, and the law presumes death—until someone

produces the person, alive and well. The paradigm

runs: basic fact, presumed fact, reason, and rebuttal.

Every genuine presumption lives in the twilight and

dies in the light.

One presumption defies that natural order. The

“presumption against preemption” flies at noon. Courts

invoke it not in the absence of evidence of congressional

intent, but in the face of the best evidence there is: the

enacted text of an express preemption clause. See

Chamber of Com. of the U.S. v. Whiting, 563 U.S. 582,

594 (2011). A decade ago, this Court prescribed the

cure. When a statute “contains an express pre-emption

clause,” courts “do not invoke any presumption against

pre-emption” but “focus on the plain wording of the

clause.” Puerto Rico v. Franklin Cal. Tax-Free Tr., 579

U.S. 115, 125 (2016) (cleaned up).

3

Since then, a pattern has repeated itself. Most

federal courts of appeals obeyed. (Some did not.) And

state courts have gone on applying the presumption

anyway—in North Carolina, in Wisconsin, in

Pennsylvania, in Illinois, in Colorado—confining

Franklin to its facts or ignoring it outright. Now

Massachusetts has cast its lot with them—in a

judgment only this Court can undo.

The Supreme Judicial Court declared that the

preemptive scope of the Federal Cigarette Labeling

and Advertising Act “is governed entirely by the

express language” of 15 U.S.C. § 1334—and, in the

same breath, that this express language “is to be read

narrowly ‘in light of the presumption against the preemption of state police power regulations.’” Pet. App.

36 (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504,

517–18 (1992)). Peering through that narrowing lens,

the court sustained a judgment built in substantial

part on Philip Morris’s failure to include a health

warning that federal law does not require. Pet. App. 4,

36–37. The jury had awarded $8 million in

compensatory damages and $1 billion in punitive

damages—the

largest

punitive

award

in

Massachusetts history—which the trial court remitted

to $56 million. Pet. App. 1–2, 11–12 & n.11. That

liability, whatever else it may be, is a “requirement or

prohibition based on smoking and health” of the very

kind Congress placed off limits. 15 U.S.C. § 1334(b). A

command Congress wrote in 1970 was read through

the presumption against preemption—a gloss this

Court laid over it in 1992 and repudiated in 2016.

In this brief, we focus on the vexing doctrine that

made this possible—and we urge the Court to finish it

off. First, the presumption against preemption

4

deserves a burial because it never deserved a birth. It

has no source in the Supremacy Clause, whose non

obstante command instructs courts not to strain federal

text to spare state law. It has no pedigree in history,

which knew nothing of it until the New Deal. And—a

point that has received too little attention—it is not

even a presumption. It lacks every attribute the law

demands of one—a triggering fact, a reason to believe

it, an allocation of burdens, and a standard of rebuttal.

It is not an interpretive aid at all; rather, it is a license.

Franklin tried to bury it, but Franklin is a dead letter

in the state courts, where most tort litigation takes

place. And a state court of last resort answers, on

questions of federal law, to this Court alone. The burial

must therefore happen here, in a judgment no state

court can mistake for mere dicta.

Second, Altria Group, Inc. v. Good, 555 U.S. 70

(2008), should be overruled. Altria is the presumption’s

greatest monument: a five-to-four decision that

deployed the presumption to hold that § 1334(b)

preempts claims that a manufacturer warned too little,

but not fraud claims resting on the same conduct.

Altria was wrong the day it was decided; no sitting

Justice joined it; and it is indefensible now that

Franklin has extinguished the doctrine that produced

it.

Third, the stakes run far beyond tobacco. Express

preemption clauses are Congress’s promise of one

national rule. American enterprise prices risk,

allocates capital, and builds supply chains in reliance

on that promise. A presumption with no fixed trigger,

no fixed weight, and no fixed standard of rebuttal

cannot be priced. It can only be feared—and litigated.

5

ARGUMENT

I. THE PRESUMPTION AGAINST PREEMPTION IS NOT

LAW.

The presumption against preemption’s credentials

fail in every respect. It has no source in the

constitutional text, no pedigree in history, none of the

architecture of a genuine presumption, and—since

Franklin—no warrant in this Court’s precedent. Yet it

continues to be deployed by state courts, shrinking

Congress’s clearest commands in the forums where

most tort suits are filed and where preemption matters

most.

A. Both the Constitution and history refute it.

The Constitution does not whisper about the status

of federal law. It declares. Federal statutes “shall be

the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the

Constitution or Laws of any State to the Contrary

notwithstanding.” U.S. Const. art. VI, cl. 2. That

closing phrase is a classic non obstante provision—a

familiar eighteenth-century drafting device signaling

that the new law may displace old law and

“instruct[ing] courts not to apply the general

presumption against implied repeals.” PLIVA, Inc. v.

Mensing, 564 U.S. 604, 622 (2011) (plurality opinion)

(cleaned up); see Caleb Nelson, Preemption, 86 Va. L.

Rev. 225, 238–42 (2000). Courts are not to strain

federal statutes into harmony with state law. They are

to give federal text “its natural meaning” and “let the

chips fall where they may.” Nelson, supra, at 242.

6

The presumption directs judges to do the precise

thing the Supremacy Clause forbids: adopt a “narrow

reading” of federal law—something other than its best

reading—whenever the natural reading would displace

state authority. Cipollone, 505 U.S. at 518. Five

Justices—four of them still on the Court—have

explained that this cannot be squared with the Clause’s

text. See Mensing, 564 U.S. at 621–23 (plurality

opinion of Thomas, J., joined by Roberts, C.J., and

Scalia and Alito, JJ.); Kansas v. Garcia, 589 U.S. 191,

213–14 (2020) (Thomas, J., concurring, joined by

Gorsuch, J.). Nor can it be squared with this Court’s

interpretive method.

Justice Barrett has made the same point in broader

terms: a canon that “instruct[s] a court to adopt

something other than the statute’s most natural

meaning” stands “in significant tension with

textualism” itself, Biden v. Nebraska, 600 U.S. 477, 509

(2023) (Barrett, J., concurring) (cleaned up), and

applying such a canon without constitutional warrant

is not “faithful agency,” Amy Coney Barrett,

Substantive Canons and Faithful Agency, 90 B.U. L.

Rev. 109, 181 (2010).

For express preemption clauses, the rule is the

ordinary one: “[t]heir language should be given its

ordinary meaning.” Cipollone, 505 U.S. at 548 (Scalia,

J., concurring in the judgment in part and dissenting

in part); accord Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 293

(2012) (“[T]he preemption canon ought not to be

applied to the text of an explicit preemption

provision.”).

7

If the presumption were part of the constitutional

design, it would appear at the Founding. It does not.

Chief Justice Marshall asked only whether the state

law “interfere[d] with,” was “contrary to,” or came “into

collision with” the federal act. Gibbons v. Ogden, 22

U.S. (9 Wheat.) 1, 210–11 (1824). No presumption. No

thumb on the scale. Nineteenth-century treatises

contain no trace of a special preemption canon either.

See Barrett, supra, at 153 n.211 (“Early cases

confronting preemption analyzed the issue without

discussing any special interpretive rule.”).

The presumption is a New Deal artifact. It first

appeared in Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947), as a judicial answer to an anxiety of

that era—the fear that a fast-expanding federal

government would sweep away too much state

regulation. See Stephen Gardbaum, New Deal

Constitutionalism and the Unshackling of the States,

64 U. Chi. L. Rev. 483, 536–40 (1997). Whatever the

merit of that anxiety in 1947, a mid-twentieth-century

vibe is not a warrant for rewriting statutes in 2026.

Constitutional structure, in short, supplies no warrant

for a systematic presumption in either direction. See

Viet D. Dinh, Reassessing the Law of Preemption, 88

Geo. L.J. 2085, 2092 (2000).

B. It is not even a presumption.

There exists a deeper defect still, and it deserves

this Court’s attention. Measured against the law’s own

centuries-old understanding of what a presumption is,

the presumption against preemption is an impostor.

A genuine presumption has an architecture. It runs

from a proven basic fact to a presumed fact. It rests on

8

a reason—the inference is usually true, one side holds

the proof, or a settled policy demands it. It assigns who

must come forward with proof. And it says how much

proof dissolves it. See Otis H. Fisk, Presumptions, 11

Cornell L.Q. 20, 22–23, 25 (1925); Edmund M. Morgan,

Some Observations Concerning Presumptions, 44 Harv.

L. Rev. 906, 906, 931–32 (1931); Ernest F. Roberts, An

Introduction to the Study of Presumptions, 4 Vill. L.

Rev. 475, 482–83 (1959). The presumption of agency

holds until the employer speaks. The presumption of

death holds until the missing man walks through the

door. Twilight creatures all, which vanish in the

sunshine. Mockowik, 94 S.W. at 262.

Now consider the presumption against preemption.

What is its basic fact? It purports to attach to the

States’ “historic police powers,” Rice, 331 U.S. at 230—

but at what level of generality? Health? Consumer

protection? The law of fraud? No court has ever said,

and this Court abandoned the parallel “traditional

governmental functions” inquiry as “unworkable” for

exactly that reason. Garcia v. San Antonio Metro.

Transit Auth., 469 U.S. 528, 546–47 (1985).

Why should anyone believe it? The official rationale

is that Congress does not lightly displace state law and

will correct courts that err. The evidence says

otherwise. Congress “almost never responds” to this

Court’s preemption decisions at all—so the

presumption predicts nothing, and its errors are never

legislatively repaired. Note, New Evidence on the

Presumption Against Preemption: An Empirical Study

of Congressional Responses to Supreme Court

Preemption Decisions, 120 Harv. L. Rev. 1604, 1605

(2007). That finding also unravels the presumption’s

leading academic defense—that anti-preemption

9

rulings force Congress to deliberate. See Roderick M.

Hills, Jr., Against Preemption: How Federalism Can

Improve the National Legislative Process, 82 N.Y.U. L.

Rev. 1 (2007). A doctrine defended as a spur to a supine

Congress is a doctrine defended by a fiction.

What is its standard of rebuttal? A “clear and

manifest” purpose, Medtronic, Inc. v. Lohr, 518 U.S.

470, 485 (1996) (citation omitted)—but no one has ever

said how clear is clear. Cf. Loper Bright Enters. v.

Raimondo, 603 U.S. 369, 408 (2024). So every case asks

a judge to decide whether the text’s clarity outweighs

the presumption’s force—two quantities with no

common measure. Justice Scalia had a metaphor for

that exercise: “judging whether a particular line is

longer than a particular rock is heavy.” Bendix Autolite

Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897

(1988) (Scalia, J., concurring in the judgment). He had

the same objection to canons of this kind generally:

they add “on one or the other side of the balance, a

thumb of indeterminate weight.” Antonin Scalia, A

Matter of Interpretation: Federal Courts and the Law

28 (1997).

And here is the tell. A true presumption yields to

proof. This one is deployed against proof—against “the

plain wording of the clause, which necessarily contains

the best evidence of Congress’ pre-emptive intent.”

Whiting, 563 U.S. at 594 (citation omitted).

Small wonder, then, that the presumption never

even described this Court’s practice. Even in its

heyday, the presumption against preemption came and

went without explanation. Sometimes the Court rested

its decisions on it. See, e.g., Cipollone, 505 U.S. at 518;

Lohr, 518 U.S. at 485; Altria, 555 U.S. at 77. Just as

10

often, the Court decided express-preemption cases

without mentioning it at all. See, e.g., Rowe v. N.H.

Motor Transp. Ass’n, 552 U.S. 364 (2008); Bruesewitz

v. Wyeth LLC, 562 U.S. 223 (2011); Nat’l Meat Ass’n v.

Harris, 565 U.S. 452 (2012); Dan’s City Used Cars, Inc.

v. Pelkey, 569 U.S. 251 (2013). No principle separates

the two lists. The Court applied the presumption to the

Medical Device Amendments in 1996, Lohr, 518 U.S. at

485, then construed the same preemption provision

twelve years later without a word about it, Riegel v.

Medtronic, Inc., 552 U.S. 312 (2008). In 2008 alone, the

Court decided Rowe and Riegel in silence—and then, in

December, rested Altria on the presumption.

Dissenting Justices have noticed the vanishing act.

See Mut. Pharm. Co. v. Bartlett, 570 U.S. 472, 497–98

& n.1 (2013) (Sotomayor, J., dissenting) (presumption

“conspicuously absent from the majority opinion”).

Careful observers could not even agree which way the

presumption’s thumb pressed. See Mary J. Davis,

Unmasking the Presumption in Favor of Preemption,

53 S.C. L. Rev. 967 (2002). That is not a canon of

construction. It is caprice by another name. And the

rule of law, Justice Scalia taught, is a law of rules.

Antonin Scalia, The Rule of Law as a Law of Rules, 56

U. Chi. L. Rev. 1175 (1989). A doctrine that judges can

wield or abandon as they see fit is not a rule; it is a

result in search of a rationale.

Strip away the borrowed vocabulary, and the

presumption is a judge-made instruction to give federal

statutes something other than their best reading—

triggered by nothing, calibrated to nothing, rebutted by

nothing. The bats of the law at least have the decency

to disappear in daylight. This one flies at noon. It

should be grounded for good.

11

C. Franklin should have settled the question,

but state courts have not heeded it.

Franklin should have ended the presumption’s

career in express-preemption cases. In the federal

system, it largely did. Seven courts of appeals took the

decision at its word. See, e.g., Atay v. Cnty. of Maui, 842

F.3d 688, 699 (9th Cir. 2016); Watson v. Air Methods

Corp., 870 F.3d 812, 817 (8th Cir. 2017) (en banc);

EagleMed LLC v. Cox, 868 F.3d 893, 903 (10th Cir.

2017); Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751,

761–62 (4th Cir. 2018); Dialysis Newco, Inc. v. Cmty.

Health Sys. Grp. Health Plan, 938 F.3d 246, 258–59

(5th Cir. 2019); Medicaid & Medicare Advantage Prods.

Ass’n of P.R., Inc. v. Emanuelli Hernández, 58 F.4th 5,

11–12 (1st Cir. 2023); Carson v. Monsanto Co., 72 F.4th

1261, 1267 (11th Cir. 2023). Two read Franklin

narrowly and apply the presumption still. See Council

for Responsible Nutrition v. James, 159 F.4th 155, 171

(2d Cir. 2025); Shuker v. Smith & Nephew, PLC, 885

F.3d 760, 771 (3d Cir. 2018).

Obedience, once given, has not always held. The

Eighth Circuit took Franklin at its word in 2017, then

relied on Altria six years later to make the presumption

dispositive. Compare Watson, 870 F.3d at 817, with

R.J. Reynolds Tobacco Co. v. City of Edina, 60 F.4th

1170, 1176–77 (8th Cir. 2023). Judges caught in the

middle say plainly that they cannot tell what the law

is. See Cal. Rest. Ass’n v. City of Berkeley, 89 F.4th

1094, 1108 (9th Cir. 2024) (O’Scannlain, J., concurring)

(the law after Franklin “remains troubling and

confused—beset by tensions in Supreme Court

precedents, disagreement among the circuits, and

important practical questions still unanswered”). The

12

petition chronicles that federal disarray in detail. Pet.

27–29.

But the presumption’s true refuge is the state

courts. The decision below treated Cipollone’s 1992

presumption as governing law in 2026—without even

a citation to Franklin. Pet. App. 36. It has company.

The Wisconsin Supreme Court, quoting Altria, called

the presumption “particularly strong” where state

police powers are involved, held that Congress’s

express guarantee of “reasonable access” to the

interstate highways “should be read narrowly,” and let

a town’s seasonal weight limit prevail over it. Town of

Delafield v. Cent. Transp. Kriewaldt, 944 N.W.2d 819,

821, 828 (Wis. 2020). The Pennsylvania Supreme

Court, reciting the presumption among its governing

principles and citing Altria for it, held last year that

Congress’s grant of “original and exclusive” federal

jurisdiction over interstate pipelines leaves state

administrative review untouched. Cole v. Pa. Dep’t of

Envtl. Prot., 329 A.3d 1228, 1241, 1250 n.104 (Pa.

2025). Neither opinion cites Franklin.

North Carolina’s highest court did cite it—only to

brush it aside as an “open question” confined to

bankruptcy, then applied the presumption to an

express immunity provision. Happel v. Guilford Cnty.

Bd. of Educ., 913 S.E.2d 174, 202 n.8 (N.C. 2025). The

Colorado Supreme Court invoked it to hold that federal

law left state-law claims intact, in a decision now

before this Court. Cnty. Comm’rs of Boulder Cnty. v.

Suncor Energy USA, Inc., 586 P.3d 161, 170 (Colo.

2025), cert. granted sub nom. Suncor Energy (U.S.A.)

Inc. v. Cnty. Comm’rs of Boulder Cnty., No. 25-170

(U.S. Feb. 23, 2026). And an Illinois appeals court, told

that Franklin forbids the presumption, agreed—then

13

construed the statute’s safety exception under a “wellaccepted maxim” that federal law will not displace a

State’s traditional authority absent a clear directive.

Kaipust v. Echo Glob. Logistics, Inc., 271 N.E.3d 1066,

1073 (Ill. App. Ct. 2025). Even where the presumption

is formally disclaimed, the thumb stays on the scale.

This is not the work of outlier courts. It is the

considered position of the highest courts of North

Carolina, Wisconsin, Pennsylvania, Colorado, and now

Massachusetts. This Court’s silence will not cure the

problem. The presumption, like Chevron deference

before Loper Bright, has simply fallen out of the Court’s

vocabulary—but the old decisions invoking it remain

“on the books,” and so “litigants must continue to

wrestle with” them. Loper Bright, 603 U.S. at 406.

Cipollone, Lohr, and Altria still stand, still recite the

presumption, and still supply state courts with all the

authority they need to thwart federal law. Doctrines

are not interred by being ignored. They are interred by

a holding. And a holding requires a grant.

The state-court character of this problem is not a

detail. It is the heart of the matter. The Supremacy

Clause is addressed, by name, to “the Judges in every

State.” U.S. Const. art. VI, cl. 2. The Framers knew

where the pressure on federal supremacy would

concentrate. Preemption is the traffic rule at the

boundary between two sovereigns. When a State’s

highest court resolves every doubt about that boundary

in favor of state power, it is umpiring its own

sovereign’s game.

An errant federal decision can be corrected en banc,

tested against sister circuits, and refined through

percolation. A state court of last resort answers, on

14

questions of federal law, to this Court alone. 28 U.S.C.

§ 1257(a). If this Court will not enforce Franklin

against state judgments, no one ever will. And a rule

the States feel blithely free to disregard is not yet a

rule.

The law of incentives follows. Most tort suits are

filed in state court, and plaintiffs choose the forum. So

long as the presumption survives in state courthouses

after dying in federal ones, every mass-tort complaint

will be steered toward the forum where Congress’s

words mean the least. The result is the same statute,

the same clause, the same words—all shrinking or

holding firm depending on which side of the street the

courthouse sits. That’s not uniformity; it’s chaos.

This Court has said what the law is. What remains

is to say it to a state court of last resort, in a judgment

that leaves no room for an answer that depends on the

forum.

II.

ALTRIA SHOULD FALL WITH THE PRESUMPTION

THAT BUILT IT.

One Congress enacted one Labeling Act. It should

have one meaning.

A. Altria was wrong then and is indefensible

now.

Altria is the presumption’s most durable

monument. The question there was whether a fraud

claim attacking cigarette advertising imposes a

“requirement or prohibition based on smoking and

health.” 15 U.S.C. § 1334(b). The words had a natural

answer. The majority did not give it. It began instead

15

with the “assumption that the historic police powers of

the States [are] not to be superseded,” 555 U.S. at 77

(quoting Rice, 331 U.S. at 230), resolved to “accept the

reading that disfavors pre-emption,” id. (quoting Bates

v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005)),

and adopted, as governing law, the predicate-duty test

the Cipollone plurality had spun from its own “narrow

reading,” 505 U.S. at 523–24 (plurality opinion). The

result: § 1334(b) preempts a claim that a manufacturer

warned too little, but not a fraud claim resting on the

same conduct, the same statements, and the same

injury.

Liability thus turns not on what the defendant did

but on the caption the plaintiff chooses. Five Justices

in Cipollone had refused to join that test at its

creation—Justice Blackmun’s three because they could

perceive “no principled basis” for its distinctions, 505

U.S. at 543 (opinion of Blackmun, J.), and Justice

Scalia’s two because it strayed from the statutory text,

id. at 544–48 (opinion of Scalia, J.)—so it never

commanded a majority of this Court, 555 U.S. at 92

(Thomas, J., dissenting). Altria enshrined it anyway—

five votes to four, with the presumption supplying the

margin.

Even Altria’s defenders could muster no more than

a shrug. The majority conceded that its analysis “may

lack ‘theoretical elegance’” and defended it as nothing

more than “a fair understanding of congressional

purpose.” 555 U.S. at 84. The dissent answered with

the lower courts’ own words—“no easy task,” “an

impossibility.” Id. at 97 (Thomas, J., dissenting).

Altria was wrong in 2008. It is indefensible in 2026.

Franklin has since clarified that when a statute

16

contains an express preemption clause, courts “do not

invoke any presumption against pre-emption” at all.

579 U.S. at 125. The doctrinal source of Altria’s narrow

construction is extinguished. What remains are “the

still visible beams of an already extinguished star.”

Vladimir Nabokov, Breaking the News (1935), in A

Russian Beauty and Other Stories 37, 38 (1973). The

light still misleads the lower courts, though its source

is gone.

Altria is not merely wrong; it is the instrument by

which the presumption survives. When a state court

reaches for the presumption against an express federal

command, Altria is what it cites. Wisconsin cited page

77 to narrow the highway-access guarantee. Delafield,

944 N.W.2d at 821. Pennsylvania cited page 77 in

construing the Natural Gas Act. Cole, 329 A.3d at 1241.

The court below cited Cipollone, from which Altria

drew the rule. Pet. App. 36. Franklin left Altria

standing, and so Altria remains there to be cited—and

is cited still. Overruling it would not merely correct one

judgment in one Commonwealth. It would withdraw

the authority on which the presumption’s afterlife

depends.

WLF has been here before. In Altria itself, we urged

this Court to hold that the presumption “has proven to

be unworkable and ought to be eliminated,” on much

the same grounds we press today. Brief of Washington

Legal Foundation as Amicus Curiae Supporting

Petitioners at 7, Altria Grp., Inc. v. Good, 555 U.S. 70

(2008) (No. 07-562) (Apr. 7, 2008). The Court applied

the presumption instead. Less than a decade later,

Franklin adopted the rule we proposed—for every case

except the ones already decided. Altria thus survives

as grandfathered error, a holding no current doctrine

17

supports and no current Justice joined. All five

Members of its majority have left the Court. Three of

its four dissenters remain.

Nothing in stare decisis preserves such a decision.

Its force is weakest where a precedent has proved

unworkable, for “the mischievous consequences to

litigants and courts alike from the perpetuation of an

unworkable rule are too great.” Swift & Co. v.

Wickham, 382 U.S. 111, 116 (1965). Reliance interests?

The only reliance Altria protects is the artful pleader’s.

And congressional silence is not ratification; this Court

does not “place on the shoulders of Congress the burden

of the Court’s own error.” Girouard v. United States,

328 U.S. 61, 69–70 (1946). The Altria dissent closed

with a prophecy: the confusion to come “may even force

us to yet again revisit the Court’s interpretation of the

Labeling Act.” 555 U.S. at 112 (Thomas, J., dissenting).

That day has arrived, by way of Massachusetts.

B. The decision below is the dead star’s light

still at work.

Congress left nothing to inference in the Labeling

Act. It declared its purpose to protect “commerce and

the national economy” from “diverse, nonuniform, and

confusing

cigarette

labeling

and advertising

regulations.” 15 U.S.C. § 1331(2)(B). It prescribed the

exact warnings that must appear on every package sold

in the United States. Id. § 1333. And it commanded

that “[n]o requirement or prohibition based on smoking

and health shall be imposed under State law with

respect to the advertising or promotion” of conforming

cigarettes. Id. § 1334(b). Even Altria conceded what

those words mean: Congress determined that “the

prescribed federal warnings are both necessary and

18

sufficient to achieve its purpose of informing the public

of the health consequences of smoking,” so States may

not “enforc[e] rules that are based on an assumption

that the federal warnings are inadequate.” 555 U.S. at

79 (emphasis added).

Now consider what happened below. The plaintiff’s

fraud and conspiracy theories rested on Philip Morris’s

decision to stop including a voluntary warning—

“Smoking is Addictive”—on the packages of brands

acquired from another manufacturer. Pet. App. 71, 72–

73. Federal law nowhere requires that warning. The

unmistakable gravamen of the theory is that the

company should have warned more than Congress

prescribed—in other words, that “the federal warnings

are inadequate.” 555 U.S. at 79. As the petition

demonstrates, Pet. 15–20, even under Altria’s own test,

that should have been the end of the matter, for a claim

is preempted when “the gravamen of the claim was the

defendants’ failure to warn.” 555 U.S. at 81.

Yet the Supreme Judicial Court—expressly

invoking this Court’s “presumption against the preemption of state police power regulations”—held that

claims pleaded as breaches of the “duty not to deceive”

escape § 1334(b) even when they rest on the same

theory and the same evidence as an otherwisepreempted failure-to-warn claim. Pet. App. 36–37. A

$56 million punitive award now stands as

Massachusetts’s official judgment that the federally

prescribed warnings were not enough. Pet. App. 2.

Perhaps the court below misread Altria. Perhaps it

took Altria at its word. That both answers are available

on one set of facts is the indictment. A test that turns

on characterizing a claim’s “predicate duty” at a

19

“shifting level of generality” cannot constrain anyone,

555 U.S. at 106 (Thomas, J., dissenting), because every

failure-to-warn claim can be redescribed, one rung up

the ladder of abstraction, as a breach of a “general

duty” not to deceive, id. at 87. The true rule is simple:

“if, whatever the source of the duty, the claim imposes

an obligation because of the effect of smoking upon

health, it is preempted.” Id. at 96 (Thomas, J.,

dissenting) (emphasis added; cleaned up).

This Court has said it “would make no sense” to let

state regulations “escape preemption because they

addressed the purchase, rather than manufacture, of a

federally regulated product.” Nat’l Meat Ass’n, 565 U.S.

at 464; accord Engine Mfrs. Ass’n v. S. Coast Air

Quality Mgmt. Dist., 541 U.S. 246, 254 (2004). It makes

no more sense to let a requirement based on smoking

and health escape preemption because the plaintiff

pleaded it as fraud. The decision below carries Altria to

its logical end: an object lesson, in eight figures, that

an Act of Congress can be defeated by a caption.

There is a bitter irony in the geography. A quarter

century ago, this Court held that the Labeling Act

preempted

Massachusetts’s

cigarette-advertising

regulations. Lorillard Tobacco Co. v. Reilly, 533 U.S.

525, 550–51 (2001). What the Commonwealth could not

do then by regulation, it has now done by verdict.

Unless this Court intervenes, that mischief will

continue—state by state, jury by jury.

And consider the incentive this creates. If removing

a voluntary warning is actionable fraud, then every

manufacturer that discloses more than federal law

requires has built its own gallows. No firm will make

that mistake again, knowing it cannot be clawed back.

20

The decision below uses Altria to punish the very

candor it purports to protect—and it conscripts the law

of fraud to stitch together exactly the “diverse,

nonuniform, and confusing” patchwork Congress

forbade. 15 U.S.C. § 1331(2)(B).

Franklin extinguished the star. Only overruling

Altria can extinguish the beams.

III.

NATIONAL MARKETS CANNOT PRICE A

DOCTRINE THIS COURT HAS ABANDONED BUT

NOT OVERRULED.

“In deciding cases involving the American economy,

courts should strive, where possible, for clarity and

predictability.” Seven Cnty. Infrastructure Coal. v.

Eagle Cnty., 605 U.S. 168, 192 (2025). Express

preemption clauses

are

Congress’s

principal

instrument of that predictability. Each is one-half of a

bargain struck again and again across the modern

regulatory state: comprehensive federal oversight in

exchange for a single national rule. Congress struck it

for medical devices, 21 U.S.C. § 360k(a); pesticides, 7

U.S.C. § 136v(b); trucking, 49 U.S.C. § 14501(c)(1);

vaccines, 42 U.S.C. § 300aa-22(b)(1); and meat, 21

U.S.C. § 678. See Riegel, 552 U.S. 312; Monsanto Co. v.

Durnell, 146 S. Ct. 2001 (2026); Rowe, 552 U.S. 364;

Bruesewitz, 562 U.S. 223; Nat’l Meat Ass’n, 565 U.S.

452. Every one of those preemption clauses embodies

the same judgment as the Labeling Act: a national

market cannot run under fifty overlapping regimes.

Certainty is not a luxury in that system. It is the

baseline from which everything else is calculated.

Clear

rules

let

decision-makers

translate

unpredictable

outcomes

into

probabilities—

21

probabilities that can be priced, insured against, and

acted upon. Express preemption clauses “reflect

Congress’s judgment that the ability to sell a product

throughout the country with a single label can be

important to maintaining an efficient nationwide

market.” Durnell, 146 S. Ct. at 2012. Set that judgment

aside and the costs are neither abstract nor deferred.

When the Pennsylvania Supreme Court narrowed the

Natural Gas Act’s jurisdictional command, a

concurring justice warned that the ruling would

“undoubtedly stymie” Congress’s purpose, inviting

“dual track litigation” and its predictable yield:

contradictory decisions, longer cases, and delayed

permits. Cole, 329 A.3d at 1256–57 (Mundy, J.,

concurring).

That is how a free market allocates capital—toward

ventures whose legal exposure can be measured, away

from those whose exposure cannot. An express

preemption clause, read to mean what it says, is

measurable. A clause read “narrowly” in light of a

presumption with no fixed trigger, no fixed weight, and

no fixed standard of rebuttal is not measurable at all.

It is little more than a mood. A mood cannot be priced;

it can only be feared. Firms pay for the fear in

duplicative compliance systems, in defensive labeling,

in warnings withheld lest candor become tomorrow’s

evidence of fraud—and, in the end, in investments

never made.

Those costs do not stay where they land. Like every

cost of production, they move down the line until they

reach the one party with no one left to pass them to:

the consumer. The tab arrives as higher prices, thinner

choices, and products that never reach the market at

all—a hidden tax levied verdict by verdict and paid at

22

the register. And because the decision below makes

voluntary candor punishable, consumers pay in lost

information too. The irony is that a doctrine defended

as protection for consumers ends by charging them

more and telling them less.

Nor does burying the presumption leave the field

unpoliced. The federal government comprehensively

regulates what cigarette manufacturers may say about

smoking and health, and it wields ample enforcement

tools against deception. See Family Smoking

Prevention and Tobacco Control Act, 21 U.S.C. § 387 et

seq. The question is not whether such conduct will be

policed, but by whom: one national government

speaking through federal statutory law, or juries in

fifty States speaking through verdicts like this one.

Congress answered that question in 1970, in words.

Altria’s monument to the presumption against

preemption is the only thing standing between those

words and their meaning.

23

CONCLUSION

The Court should grant the petition, overrule

Altria, and let the presumption against preemption

disappear at last in the sunshine of the statutory text.

Respectfully submitted,

September 4, 2026

CORY L. ANDREWS

Counsel of Record

WASHINGTON LEGAL

FOUNDATION

2009 Mass. Ave., NW

Washington, DC 20036

(202) 588-0302

candrews@wlf.org