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 INC.,

v.

Petitioner,

ARMAND FONTAINE,

individually and as personal representative

of the Estate of Barbara Ellen Fontaine,

Respondent.

_____________

On Petition for a Writ of Certiorari to the

Massachusetts Supreme Judicial Court

_____________

AMICUS BRIEF OF THE

PRODUCT LIABILITY ADVISORY COUNCIL

IN SUPPORT OF PETITIONER

_____________

Geoffrey M. Pipoly

BRYAN CAVE LEIGHTON

PAISNER LLP

161 N. Clark Street,

Suite 4300

Chicago, IL 60601

Andrew E. Tauber

Counsel of Record

BRYAN CAVE LEIGHTON

PAISNER LLP

1155 F Street NW, Suite 700

Washington, DC 20008

(202) 508-6111

andrew.tauber@bclplaw.com

Counsel for Amicus Curiae

Product Liability Advisory Council, Inc.

September 21, 2026

TABLE OF CONTENTS

Page

TABLE OF CONTENTS..............................................i

TABLE OF AUTHORITIES ..................................... iii

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

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ........................................................2

ARGUMENT ...............................................................4

I.

Preemption arises in a wide variety of

statutory and substantive contexts. ....................4

II. A presumption against preemption is

contrary to the Supremacy Clause. .....................6

A. The Supremacy Clause abrogated the

presumption against implied repeals. .......7

B. The Supremacy Clause does not

distinguish between express and

implied preemption.....................................9

III. Lower courts still apply a presumption

against preemption in express-preemption

cases notwithstanding Franklin........................ 11

A. Courts have continued to apply a

presumption against preemption in

various statutory contexts........................ 12

B. Lower courts cite this Court’s

precedent as justification for continued

application of a presumption against

preemption. ............................................... 13

IV. This Court should definitively renounce

any presumption against preemption. .............. 16

i

CONCLUSION..........................................................18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton,

521 U.S. 203 (1997) .............................................. 15

Air Evac EMS, Inc. v. Cheatham,

910 F.3d 751 (4th Cir. 2018) ................................ 17

Altria Group, Inc. v. Good,

555 U.S. 70 (2008) .............. 2, 6, 7, 9, 11, 14, 16, 17

Arizona v. Inter Tribal Council of

Arizona, Inc.,

570 U.S. 1 (2013) ............................................ 11, 16

Arizona v. United States,

567 U.S. 387 (2012) ................................................ 5

Ass’n des Éleveurs de Canards et d’Oies

du Québec v. Becerra,

870 F.3d 1140 (9th Cir. 2017) .............................. 12

AT&T Mobility LLC v. Concepcion,

563 U.S. 333 (2011) ................................................ 5

Bates v. Dow Agrosciences LLC,

544 U.S. 431 (2005) .................................. 14, 15, 16

Bedoya v. American Eagle Express Inc.,

914 F.3d 812 (3d Cir. 2019).................................. 12

Biden v. Nebraska,

600 U.S. 477 (2023) ................................................ 7

iii

Blankenship v. Consolidation Coal Co.,

850 F.3d 630 (4th Cir. 2017) ............................ 3, 12

Buckman Co. v. Plaintiffs’ Legal Comm.,

531 U.S. 341 (2001) ................................................ 5

California Rest. Ass’n v. City of Berkeley,

89 F.4th 1094 (9th Cir. 2023)............................... 17

California Trucking Ass’n v. Bonta,

996 F.3d 644 (9th Cir. 2021) ................................ 12

Caranci v. Monsanto Co.,

338 A.3d 151 (Pa. Super. Ct. 2025)................ 13, 16

Chamber of Com. v. Whiting,

563 U.S. 582 (2011) ................................................ 6

Cipollone v. Liggett Grp., Inc.,

505 U.S. 504 (1992) .................................. 14, 15, 16

Council for Responsible Nutrition v.

James,

159 F.4th 155 (2d Cir. 2025) ................................ 12

Crosby v. National Foreign Trade

Council,

530 U.S. 363 (2000) .......................................... 5, 10

Durnell v. Monsanto Co.,

707 S.W.3d 828 (Mo. Ct. App. 2025) ........ 13, 15, 16

Fontaine v. Philip Morris USA Inc.,

277 N.E.3d 585 (Mass. 2026) ......................... 12, 15

Foster v. Love,

522 U.S. 67 (1997) .................................................. 6

iv

Geier v. American Honda Motor Co.,

529 U.S. 861 (2000) ............................................ 5, 7

Greenbrier Hotel Corp. v. UNITE HERE

HEALTH,

719 F. App’x 168 (4th Cir. 2018) .......................... 12

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

913 S.E.2d 174 (N.C. 2025) ............................ 12, 15

Hardeman v. Monsanto Co.,

997 F.3d 941 (9th Cir. 2021) .................... 12, 13, 16

Healthcare Ally Mgmt. of Cal., LLC v. WSP

USA, Inc.,

--- F.4th ---, 2026 WL 2319896 (9th Cir.

2026)...................................................................... 12

Hillman v. Maretta,

569 U.S. 483 (2013) ................................................ 5

Hughes v. Talen Energy Mktg., LLC,

578 U.S. 150 (2016) ................................................ 5

Kansas v. Garcia,

589 U.S. 191 (2020) ................................................ 7

Laborers’ Pension Fund v. Miscevic,

880 F.3d 927 (7th Cir. 2018) ................................ 12

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................................ 6

Lupian v. Joseph Cory Holdings LLC,

905 F.3d 127 (3d Cir. 2018).................................. 12

v

Medtronic, Inc. v. Lohr,

518 U.S. 470 (1996) ............................ 14, 15, 16, 17

Modzelewski’s Towing & Recovery, Inc.

v. Commissioner of Motor Vehicles,

139 A.3d 594 (Conn. 2016) ................................... 12

Murphy v. National Collegiate Athletic

Ass’n,

584 U.S. 453 (2018) .............................................. 10

Murphy v. Town of Darien,

210 A.3d 56 (Conn. 2019) ..................................... 12

Mutual Pharm. Co. v. Bartlett,

570 U.S. 472 (2013) ................................................ 5

National Ass’n of Home Builders v.

District of Columbia,

2026 WL 837674 (D.D.C. 2026)............................ 17

New York State Conf. of Blue Cross &

Blue Shield Plans v. Travelers Ins.

Co.,

514 U.S. 645 (1995) .............................................. 14

Pilliod v. Monsanto Co.,

67 Cal. App. 5th 591 (2021)............................ 13, 15

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) .................................... 5, 7, 8, 9

Puerto Rico v. Franklin California TaxFree Trust,

579 U.S. 115 (2016) ................. 3, 6, 7, 9, 11, 12, 13,

14, 15, 16, 17

vi

Rice v. Santa Fe Elevator Corp.,

331 U.S. 218 (1947) ............................................ 2, 6

Rodriguez de Quijas v. Shearson/Am.

Express, Inc.,

490 U.S. 477 (1989) .............................................. 14

Shuker v. Smith & Nephew, PLC,

885 F.3d 760 (3d Cir. 2018)...................... 12, 14, 15

Town of Delafield v. Central Transp.

Kriewaldt,

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

Virginia Uranium, Inc. v. Warren,

587 U.S. 761 (2019) .............................................. 10

Whitman v. United States,

574 U.S. 1003 (2014) ............................................ 17

Williams v. Reed,

604 U.S. 168 (2025) ................................................ 5

Wyeth v. Levine,

555 U.S. 555 (2009) ................................................ 9

Constitution

U.S. Const. art. VI, cl. 2......................................... 7, 11

Statutes

7 U.S.C. § 136v(b) .................................................. 4, 13

11 U.S.C. § 903(1) ...................................................... 14

12 U.S.C. § 25b(b) ........................................................ 4

vii

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

15 U.S.C. § 1610(a)(1) .................................................. 4

15 U.S.C. § 1681t ......................................................... 4

15 U.S.C. § 1693q......................................................... 4

17 U.S.C. § 301(a) ........................................................ 4

21 U.S.C. § 343-1 ......................................................... 4

21 U.S.C. § 360k(a) ...................................................... 4

21 U.S.C. § 467e........................................................... 4

21 U.S.C. § 678............................................................. 4

29 U.S.C. § 1144(a) .............................................. 2, 3, 4

42 U.S.C. § 300aa-22.................................................... 4

42 U.S.C. § 7543(a) ...................................................... 4

42 U.S.C. § 9658(a)(1) .................................................. 4

47 U.S.C. § 253(a) ........................................................ 4

49 U.S.C. § 10501(b) ................................................ 3, 4

49 U.S.C. § 14501(c)(1) ................................................ 4

49 U.S.C. § 20106(a) ................................................ 3, 4

49 U.S.C. § 30103(b) .................................................... 4

49 U.S.C. § 41713(b) .................................................... 4

viii

Regulations

40 C.F.R. § 152.44(a).................................................. 13

40 C.F.R. § 152.130(a)................................................ 13

Other Authorities

Amy C. Barrett, Substantive Canons

and Faithful Agency, 90 B.U. L. Rev.

109, 123–124 (2010)................................................ 7

Caleb Nelson, Preemption, 86 Va. L.

Rev. 225 (2000) ............................................. 7, 8, 10

ix

INTEREST OF THE AMICUS CURIAE1

The Product Liability Advisory Council, Inc. (PLAC)

is a non-profit professional association of corporate

members representing a broad cross-section of American and international product manufacturers.2 These

companies seek to contribute to the improvement and

reform of law in the United States and elsewhere, with

emphasis on the law governing the liability of manufacturers of products and those in the supply chain.

PLAC’s perspective is derived from the experiences of

a corporate membership that spans a diverse group of

industries in various facets of the manufacturing sector. In addition, several hundred of the leading product

litigation defense attorneys are sustaining (non-voting) members of PLAC. Since 1983, PLAC has filed

more than 1,200 briefs as amicus curiae in both state

and federal courts, including this Court, on behalf of

its members, while presenting the broad perspective of

product manufacturers seeking fairness and balance

in the application and development of the law as it affects product risk management.

Active in a variety of heavily regulated industries,

PLAC’s members frequently face situations in which

state-law requirements collide with federal requirements. How the competing demands of federal and

state law are reconciled is thus of critical importance

PLAC timely notified each party of its intent to file this brief.

No counsel for a party authored this brief in whole or in part and

no such counsel or party made a monetary contribution intended

to fund the preparation or submission of the brief. No one other

than PLAC funded preparation of this brief.

1

See https://plac.com/PLAC/PLAC/Membership/Corporate_

Membership.aspx (identifying PLAC’s corporate members).

2

(1)

2

to PLAC’s members. Preemption doctrine, at issue in

this case, governs that reconciliation process. Like society at large, PLAC members benefit from the maintenance of uniform national standards that are enforced

in a consistent manner. To ensure that they are not

subject to a multitude of different—and potentially

conflicting—legal requirements, PLAC’s members are

interested in the supremacy of federal law, which is

the very issue at stake in this case.

INTRODUCTION

AND SUMMARY OF THE ARGUMENT

A presumption against preemption is inconsistent

with the Supremacy Clause and should have no place

in this Court’s jurisprudence.

The question whether federal law displaces state law

arises in myriad contexts. It arises under diverse statutes ranging from FIFRA and the FDCA to ERISA and

the INA. And it implicates a wide array of subjects,

stretching from product liability and employee classification to commercial fishing and electoral procedures.

When determining whether federal law supersedes

state law in a particular instance, the lower courts still

frequently utilize a presumption against preemption.

That presumption is a relatively recent addition to

preemption jurisprudence, originating in Rice v. Santa

Fe Elevator Corp., 331 U.S. 218 (1947). Although Rice

was a field-preemption case, the presumption expanded to also encompass express- and conflictpreemption cases. Indeed, this Court reaffirmed the

presumption in Altria Group, Inc. v. Good, 555 U.S. 70

(2008), an express-preemption case involving the very

statute at issue here.

3

Invoking that presumption, courts have adopted unduly restrictive constructions of federal statutes, even

when Congress has enacted legislation expressly preempting state laws. Presumptions have no place in

statutory construction, which should turn on statutory

text alone. Erroneous even in the conflict-preemption

context, a presumption against preemption is indefensible in the face of an express-preemption provision. If

there is to be a presumption in preemption cases, it

should, given the Supremacy Clause, be a presumption

in favor of preemption.

In Puerto Rico v. Franklin California Tax-Free

Trust, 579 U.S. 115, 125 (2016), this Court held that

courts should “not invoke any presumption against

pre-emption” when the statute in question “contains

an express pre-emption clause.” Despite that unambiguous statement, lower courts, as here, still apply such

a presumption, ten years after Franklin was decided.

Lower courts have evaded Franklin’s clear stricture

by reading it as limited to its specific statutory context,

the Bankruptcy Code. Invoking the doctrine that only

this Court may overturn its prior precedents even

when intervening decisions have undermined their

logic, lower courts have continued to apply a presumption against preemption in cases implicating a broad

spectrum of disparate statutes, including FIFRA,

ERISA, the ACA, the FDCA, the PREP Act, the ICC

Termination Act, the Federal Railway Safety Act, and

others. Indeed, just last month the Ninth Circuit applied such a presumption to reject preemption in a case

concerning CERCLA.

It is time that Congress and the statutes that it enacts be given their constitutional due. This Court

should grant certiorari and definitively renounce the

presumption against preemption.

4

ARGUMENT

I.

Preemption arises in a wide variety of statutory and substantive contexts.

The significance of this case extends far beyond the

parties’ dispute. Although this case happens to involve

the regulation of cigarette labeling, preemption is an

issue whenever federal and state law purport to govern the same subject matter.

Like the statute at issue here, many federal statutes

expressly preempt state law. Such statutes regulate

everything from retirement benefits, medical devices,

and environmental protection to banking, telecommunications, and transportation. See, e.g., 7 U.S.C.

§ 136v(b) (Federal Insecticide, Fungicide, and Rodenticide Act); 12 U.S.C. § 25b(b) (National Bank Act); 15

U.S.C. § 1610(a)(1) (Truth in Lending Act); 15 U.S.C.

§ 1681t (Fair Credit Reporting Act); 15 U.S.C. § 1693q

(Electronic Fund Transfer Act); 17 U.S.C. § 301(a)

(Copyright Act); 21 U.S.C. § 343-1 (Nutrition Labeling

& Education Act); 21 U.S.C. § 360k(a) (Medical Device

Amendments to the Food, Drug, & Cosmetic Act); 21

U.S.C. § 467e (Poultry Products Inspection Act); 21

U.S.C. § 678 (Federal Meat Inspection Act); 29 U.S.C.

§ 1144(a) (Employee Retirement Income Security Act);

42 U.S.C. § 300aa-22 (National Childhood Vaccine Injury Act); 42 U.S.C. § 7543(a) (Clean Air Act); 42

U.S.C. § 9658(a)(1) (Comprehensive Environmental

Response, Compensation, & Liability Act); 47 U.S.C.

§ 253(a) (Telecommunications Act); 49 U.S.C.

§ 10501(b) (Interstate Commerce Commission Termination Act); 49 U.S.C. § 14501(c)(1) (Federal Aviation

Administration Authorization Act); 49 U.S.C.

§ 20106(a) (Federal Railroad Safety Act); 49 U.S.C.

§ 30103(b) (National Traffic & Motor Vehicle Safety

Act); 49 U.S.C. § 41713(b) (Airline Deregulation Act).

5

And even when a federal statute does not expressly

preempt state law, it will often do so impliedly. Federal

statutes impliedly preempt state law in contexts as diverse as immigration, arbitration, probate, pharmaceuticals, foreign policy, automotive design, and unemployment benefits. See, e.g., Williams v. Reed, 604 U.S.

168, 176 (2025) (42 U.S.C. § 1983 impliedly preempts

state-law exhaustion requirement); Hughes v. Talen

Energy Mktg., LLC, 578 U.S. 150, 164 (2016) (Federal

Power Act impliedly preempts state-imposed wholesale energy price); Mutual Pharm. Co. v. Bartlett, 570

U.S. 472, 480 (2013) (Food, Drug, & Cosmetic Act impliedly preempts state-law design-defect claims implicating generic drugs); Hillman v. Maretta, 569 U.S.

483, 497 (2013) (Federal Employees’ Group Life Insurance Act impliedly preempts state probate law); Arizona v. United States, 567 U.S. 387, 403, 406, 410,

(2012) (Immigration Reform & Control Act impliedly

preempts state-law immigration statutes); PLIVA, Inc.

v. Mensing, 564 U.S. 604, 618 (2011) (Food, Drug, &

Cosmetic Act impliedly preempts state-law failure-towarn claims implicating generic drugs); AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 352 (2011) (Federal Arbitration Act impliedly preempts state-law unconscionability doctrine); Buckman Co. v. Plaintiffs’

Legal Comm., 531 U.S. 341, 353 (2001) (Food, Drug, &

Cosmetic Act impliedly preempts state-law fraud

claims); Crosby v. National Foreign Trade Council, 530

U.S. 363, 388 (2000) (Foreign Operations, Export Financing, & Related Programs Appropriations Act impliedly preempted state-imposed foreign sanctions);

Geier v. American Honda Motor Co., 529 U.S. 861, 886

(2000) (National Traffic & Motor Vehicle Safety Act

impliedly preempts state-law automotive design requirement).

6

The point is simple: federal preemption plays a significant role in many important areas of law and life.

II. A presumption against preemption is contrary to the Supremacy Clause.

In Altria, this Court said that “[w]hen addressing

questions of express or implied pre-emption, we begin

our analysis ‘with the assumption that the historic police powers of the States [are] not to be superseded by

the Federal Act unless that was the clear and manifest

purpose of Congress.’” 555 U.S. at 77 (quoting Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

That assumption—a presumption against preemption—is wrong.

Indeed, when considering the preemptive scope of

the Bankruptcy Code just eight years later, the Court

started its analysis by explaining that “because the

statute ‘contains an express pre-emption clause,’ we do

not invoke any presumption against pre-emption but

instead ‘focus on the plain wording of the clause, which

necessarily contains the best evidence of Congress’

pre-emptive intent.’” Puerto Rico v. Franklin Cal. Taxfree Tr., 579 U.S. 115, 125 (2016) (quoting Chamber of

Com. v. Whiting, 563 U.S. 582, 594 (2011)).

Franklin’s rejection of a presumption against

preemption is consistent with the Court’s approach to

statutory construction. “[S]tatutes, no matter how impenetrable, do—in fact, must—have a single, best

meaning.” Loper Bright Enters. v. Raimondo, 603 U.S.

369, 400 (2024). Preemption analysis done right,

therefore, is “a narrow” inquiry that properly “turn[s]

entirely on the meaning of the state and federal statutes.” Foster v. Love, 522 U.S. 67, 71 (1997). In short,

“preemption analysis is, or at least should be, a matter

7

of precise statutory … construction rather than an exercise in free-form judicial policymaking.” Geier, 529

U.S. at 911 (Stevens, J., dissenting) (quoting 1 L.

Tribe, American Constitutional Law § 6–28, p. 1177

(3d ed. 2000)). But, as an a priori assumption regarding congressional intent, a presumption against

preemption is “‘in significant tension with textualism’

insofar as [it] instruct[s] a court to adopt something

other than the statute’s most natural meaning.” Biden

v. Nebraska, 600 U.S. 477, 509 (2023) (Barrett, J., concurring) (quoting Amy C. Barrett, Substantive Canons

and Faithful Agency, 90 B.U. L. Rev. 109, 123–124

(2010)).

Although an important corrective to Altria, Franklin

did not go far enough. A presumption against preemption has no place in either express- or conflict-preemption analysis.

The preemption of state law is the natural consequence of the Supremacy Clause, which declares 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.”

U.S. Const. art. VI, cl. 2. A presumption against

preemption cannot be reconciled with the Supremacy

Clause. If anything, the Supremacy Clause demands

the opposite—a presumption in favor of preemption.

A. The Supremacy Clause abrogated the presumption against implied repeals.

“The phrase ‘any [state law] to the Contrary notwithstanding’ is a non obstante provision.” Mensing, 564

U.S. at 621 (plurality opinion) (citing Caleb Nelson,

Preemption, 86 Va. L. Rev. 225, 238–240 (2000)); accord Kansas v. Garcia, 589 U.S. 191, 213 (2020)

(Thomas, J., concurring).

8

A creature of eighteenth-century law, a non obstante

provision “established an important rule of construction: A non obstante clause in [a] new statute acknowledged that the statute might contradict prior law and

instructed courts not to apply the general presumption

against implied repeals.” Nelson, 86 Va. L. Rev. at

241–242; accord Mensing, 564 U.S. at 621 (plurality

opinion). Thus, when a statute arguably in tension

with a previously enacted statute contained a non obstante provision, “courts did not have to struggle to

harmonize the statute with prior laws; they could give

the statute its natural meaning and let it displace

whatever law it contradicted.” Nelson, 86 Va. L. Rev.

at 232.

Although unnecessary given the Constitution’s declaration that federal law is the “supreme Law of the

Land,” there is good reason why the Supremacy Clause

contains a non obstante provision. The provision addressed two related fears. On the one hand, the Founders were concerned that a by-then well-established

canon of construction—the rule that later legislation

takes priority over earlier legislation—might result in

situations in which “a subsequently enacted state statute could conceivably prevent the application of federal law.” Nelson, 86 Va. L. Rev. at 251. On the other

hand, the Founders were concerned that the by-then

equally well-established presumption against implied

repeals would lead courts to narrowly construe federal

statutes, “strain[ing] the federal law’s meaning in order to harmonize it with state law.” Id. at 255. The Supremacy Clause obviated both of these concerns. First,

it established that federal law takes priority over state

law regardless of the order in which they were enacted.

Second, through its global non obstante provision, it

told courts that they “should not strain to find ways to

9

reconcile federal law with seemingly conflicting state

law.” Mensing, 564 U.S. at 622 (plurality opinion).

Antithetical to these principles, a presumption

against preemption cannot be reconciled with the text

or history of the Supremacy Clause. Indeed, a presumption against preemption turns the Supremacy

Clause on its head. Rather than acknowledge the primacy of federal law, it assumes the primacy of state

law, requiring “clear” evidence to the contrary before

allowing federal law to take precedence. Altria, 555

U.S. at 77. But “[t]he non obstante provision of the Supremacy Clause indicates that a court need look no

further than ‘the ordinary meanin[g]’ of federal law,

and should not distort federal law to accommodate conflicting state law.” Mensing, 564 U.S. at 623 (plurality

opinion) (quoting Wyeth v. Levine, 555 U.S. 555, 588

(2009) (Thomas, J., concurring in judgment)).

B. The Supremacy Clause does not distinguish between express and implied

preemption.

In Franklin, this Court explained that it did not apply a presumption against preemption “because the

statute” at issue “contain[ed] an express pre-emption

clause.” 579 U.S. at 125. The Court was right to not

apply such a presumption but wrong to suggest a distinction between statutes that contain expresspreemption provisions and those that do not. The presumption is not appropriate in either circumstance.

There is only one Supremacy Clause. It cannot mean

one thing in one context and something else in another.

The simple fact is that if a federal statute establishes a rule, and if the Constitution grants Congress the power to establish that rule, then the

10

rule preempts whatever state law it contradicts.

This is so whether the rule is substantive or jurisdictional and whether it is express or implied.

Nelson, 86 Va. L. Rev. at 264.

This Court has recognized the Supremacy Clause’s

unitary nature, explaining that although the Court

“has sometimes used different labels to describe the

different ways in which federal statutes may displace

state laws—speaking, for example, of express, field,

and conflict preemption,” those “categories ‘are not rigidly distinct.’” Virginia Uranium, Inc. v. Warren, 587

U.S. 761, 767 (2019) (quoting Crosby, 530 U. S. at 372

n. 6). Indeed, “all of them work in the same way: Congress enacts a law that imposes restrictions or confers

rights on private actors; a state law confers rights or

imposes restrictions that conflict with the federal law;

and therefore the federal law takes precedence and the

state law is preempted.” Murphy v. National Collegiate

Athletic Ass’n, 584 U.S. 453, 477 (2018).

Simply put, there is nothing that logically differentiates express from implied preemption. Although the

existence of an express preemption provision often

makes conflicts between state and federal law easier

to spot, state law that conflicts with a federal statute

is preempted whether or not the federal statute contains an express-preemption provision.

The Supremacy Clause is categorical: It treats all

federal law and all state law the same; it does not distinguish between types of federal law or types of state

law. “There is no sound basis” to assert “that there exists a hierarchy of federal powers so that some statutes

pre-empting state law must be interpreted by different

rules than others, all depending upon which power

11

Congress has exercised.” Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 21 (2013) (Kennedy, J.,

concurring in part and concurring in the judgment).

Thus, contrary to what Altria and other cases invoking

the presumption against preemption suggest, for

preemption purposes it is immaterial that Congress

has chosen to legislate in an area previously left to the

states’ “historic police powers.” 555 U.S. at 77 (quotation marks omitted). So long as Congress acts within

its Article I authority, it is free to legislate in such areas. And if it does so, the statute that it enacts is “the

supreme Law of the Land …, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.

The presumption against preemption and the Supremacy Clause are incompatible and, until the Constitution is amended, it is the presumption that must

go.

III. Lower courts still apply a presumption

against preemption in express-preemption

cases notwithstanding Franklin.

In the decade since Franklin was decided, the U.S.

courts of appeal and state supreme courts have repeatedly invoked a presumption against preemption in the

course of rejecting preemption challenges. The cases in

which such a presumption has been invoked run the

gamut, implicating, for example, topics as diverse as

divorce proceedings, subsidized housing, environmental protection, bankruptcy, vaccinations, animal welfare, wage disputes, towing fees, drug pricing, drug labeling, early voting, consumer fraud, and grievance

procedures.

12

A. Courts have continued to apply a presumption against preemption in various

statutory contexts.

Notwithstanding Franklin, more than a dozen of

these opinions, including the decision below, have invoked a presumption against preemption in cases involving express-preemption provisions. See Fontaine

v. Philip Morris USA Inc., 277 N.E.3d 585, 608 (Mass.

2026) (Cigarette Labeling & Advertising Act); see also,

e.g., Healthcare Ally Mgmt. of Cal., LLC v. WSP USA,

Inc., --- F.4th ---, 2026 WL 2319896, at *6 (9th Cir. Aug.

11, 2026) (ERISA); Council for Responsible Nutrition

v. James, 159 F.4th 155, 171 n. 8 (2d Cir. 2025)

(FDCA); Hardeman v. Monsanto Co., 997 F.3d 941,

958 (9th Cir. 2021), abrogated by Monsanto Co. v. Durnell, 146 S. Ct. 2001 (2026) (FIFRA); California Trucking Ass’n v. Bonta, 996 F.3d 644, 654 (9th Cir. 2021)

(FAAAA); Bedoya v. American Eagle Express Inc., 914

F.3d 812, 818 (3d Cir. 2019) (FAAAA); Lupian v. Joseph Cory Holdings LLC, 905 F.3d 127, 131 (3d Cir.

2018) (FAAAA); Shuker v. Smith & Nephew, PLC, 885

F.3d 760, 771 n. 9 (3d Cir. 2018) (FDCA); Laborers’

Pension Fund v. Miscevic, 880 F.3d 927, 933–934 (7th

Cir. 2018) (ERISA); Ass’n des Éleveurs de Canards et

d’Oies du Québec v. Becerra, 870 F.3d 1140, 1146 (9th

Cir. 2017) (Poultry Products Inspection Act); Greenbrier Hotel Corp. v. UNITE HERE HEALTH, 719 F.

App’x 168, 180 (4th Cir. 2018) (ERISA); Blankenship

v. Consolidation Coal Co., 850 F.3d 630, 636 (4th Cir.

2017) (CERCLA); Murphy v. Town of Darien, 210 A.3d

56, 73 (Conn. 2019) (FRSA); Modzelewski’s Towing &

Recovery, Inc. v. Commissioner of Motor Vehicles, 139

A.3d 594, 604 (Conn. 2016) (ICCTA); Happel v. Guilford Cnty. Bd. of Educ., 913 S.E.2d 174, 189 (N.C.

2025) (Public Readiness & Emergency Preparedness

Act); Town of Delafield v. Central Transp. Kriewaldt,

13

944 N.W.2d 819, 821, 826 (Wis. 2020) (Surface

Transport & Assistance Act).

As the Roundup litigation illustrates, continued application of a presumption against preemption leads to

erroneous decisions. In that litigation, plaintiffs asserted state-law failure-to-warn claims based on a

manufacturer’s failure to warn of its pesticide’s alleged

carcinogenicity. Despite FIFRA prohibiting the manufacturer from giving the warning that state-law purportedly required (see 40 C.F.R. §§ 152.44(a),

152.130(a)), and despite FIFRA expressly preempting

any state-law labeling requirement “in addition to or

different from those required” by federal law (7 U.S.C.

§ 136v(b)), federal and state appellate courts invoking

a presumption against preemption held that FIFRA

does not preempt such claims. See Hardeman, 997

F.3d at 958; Durnell v. Monsanto Co., 707 S.W.3d 828,

833 (Mo. Ct. App. 2025); Pilliod v. Monsanto Co., 67

Cal. App. 5th 591, 613 (2021); Caranci v. Monsanto

Co., 338 A.3d 151, 167–170 (Pa. Super. Ct. 2025). Ultimately, this Court had to intervene, holding in Durnell

that “FIFRA … expressly preempts” such claims. 146

S. Ct. at 2017.

B. Lower courts cite this Court’s precedent

as justification for continued application

of a presumption against preemption.

Lower courts’ continued application of a presumption against preemption in express-preemption cases

notwithstanding Franklin is attributable to two factors working in conjunction.

The first is the doctrine that “[i]f a precedent of this

Court has direct application in a case, yet appears to

rest on reasons rejected in some other line of decisions,

[lower courts] should follow the case which directly

14

controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

The second, closely related factor is the Court’s preFranklin precedent, which invoked a presumption

against preemption when analyzing various expresspreemption provisions. See, e.g., Altria, 555 U.S. at 77

(Federal Cigarette Labeling & Advertising Act); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (FDCA);

New York State Conf. of Blue Cross & Blue Shield

Plans v. Travelers Ins. Co., 514 U.S. 645, 655 (1995)

(ERISA); Bates v. Dow Agrosciences LLC, 544 U.S.

431, 449 (2005) (FIFRA); Cipollone v. Liggett Grp.,

Inc., 505 U.S. 504, 517–518 (1992) (Federal Cigarette

Labeling & Advertising Act).

Together, these factors have caused lower courts to

treat Franklin as confined to its particular statutory

context, i.e., the Bankruptcy Code. The Third Circuit’s

decision in Shuker exemplifies this restrictive approach:

We disagree with [defendant’s] assertion that

“[a]ny presumption against express preemption

no longer exists.” [Defendant] relies on a Supreme Court case that addressed whether the

federal Bankruptcy Code’s express preemption

provision preempts a Puerto Rico statute, see

Puerto Rico v. Franklin Cal. Tax-Free Tr., [579]

U.S. [115, 125] (2016) (discussing 11 U.S.C.

§ 903(1)), but that case did not address preemption of claims invoking “historic ... state regulation of matters of health and safety,” such as the

products liability claims at issue here, Lohr, 518

U.S. at 485. As that case does not “directly control[]” here, we “leav[e] to [the Supreme Court]

the prerogative of overruling its own decisions,”

15

Agostini v. Felton, 521 U.S. 203, 237 (1997), and

continue to apply the presumption against

preemption to claims, like those in this case, that

invoke “the historic police powers of the States,”

Lohr, 518 U.S. at 485.

885 F.3d at 771 n. 9 (citation modified). Other courts

have adopted this view. Finding “the logic of the Third

Circuit compelling,” the North Carolina supreme court

last year concluded that “Franklin did not overrule

prior cases applying the presumption to express

preemption cases.” Happel, 913 S.E.2d at 189 n. 8.

Remarkably, some lower courts continue to apply a

presumption against preemption when analyzing the

scope of express-preemption provisions without even

acknowledging Franklin. The decision below is a prime

example. Quoting this Court’s decision in Cipollone,

the Massachusetts Supreme Judicial Court correctly

held that “[t]he preemptive scope of the Labeling Act

‘is governed entirely by the express language in [15

U.S.C. § 1334].’” Fontaine, 277 N.E.3d at 608 (quoting

Cipollone, 505 U.S. at 517). But, also quoting this

Court’s decision in Cipollone, the court then mistakenly held that the statute’s express-preemption provision was “to be read narrowly ‘in light of the presumption against the pre-emption of state police power regulations.’” Id. (quoting Cipollone, 505 U.S. at 518).

The Massachusetts Supreme Judicial Court is not

alone in this error. Again, the Roundup litigation is illustrative. There, a series of lower courts, relying on

this Court’s opinions in Bates and other cases predating Franklin, invoked a presumption against preemption when construing FIFRA’s express-preemption

provision. Some courts did so without even hinting

that such a presumption stood on shaky ground. See,

e.g., Durnell, 707 S.W.3d at 832–833; Pilliod, 67 Cal.

16

App. 5th at 613; see also, e.g., Caranci, 338 A.3d at 167

(relying on state precedent ultimately citing Cipollone). For its part, the Ninth Circuit recognized in Hardeman that this Court “decided Bates over fifteen

years ago” and that “preemption in other contexts has

developed considerably in the interim.” 997 F.3d at

958. Nevertheless—tacitly treating every statute as

sui generis and implicitly relying on the principle that

only this Court can overrule its decisions, even when

those decisions have been undermined by subsequent

decisions of the Court—the Ninth Circuit held that

“[f]or FIFRA preemption, however, currently Bates

controls.” Id.

This Court abrogated Hardeman when it decided

Durnell. But Durnell neither cited Franklin nor clarified that its holding applies to all express-preemption

provisions. This case provides the Court with an opportunity to do just that. “If the Court is skeptical of

the basic idea of a presumption against pre-emption as

a helpful instrument of construction in express preemption cases”—as it clearly and correctly is—then “it

should say so and apply that skepticism across the

board.” Inter Tribal Council, 570 U.S. at 21 (Kennedy,

J., concurring).

IV. This Court should definitively renounce any

presumption against preemption.

The Court should grant certiorari and use this case

as a vehicle to conclusively renounce any presumption

against preemption as incompatible with the Supremacy Clause in all contexts. At minimum, the Court

should overrule Altria, Bates, Lohr, and other precedent insofar as it condones the application of such a

presumption in express-preemption cases.

17

Several lower courts have signaled confusion and

disagreement over Franklin’s reach. As one court recently explained after contrasting Franklin with Lohr:

“Some judges have noted difficulty in reconciling these

approaches, because Franklin … did not mention—

much less expressly overrule—the decades of cases

where the presumption had ... been applied.” National

Ass’n of Home Builders v. District of Columbia, 2026

WL 837674, at *11 (D.D.C. 2026) (quotation and citation omitted). “What to make of Franklin’s ‘drive-by

ruling’ is challenging” for the lower courts given the

“tensions in [this Court’s] precedents.” California Rest.

Ass’n v. City of Berkeley, 89 F.4th 1094, 1108 (9th Cir.

2023) (as amended Jan. 2, 2024) (O’Scannlain, J., concurring) (quoting Whitman v. United States, 574 U.S.

1003 (2014) (Scalia, J., statement respecting denial of

certiorari)); accord, e.g., Air Evac EMS, Inc. v.

Cheatham, 910 F.3d 751, 762 n. 1 (4th Cir. 2018) (Wilkinson, J.) (citing Franklin, Riegel, Altria, and Lohr as

evidence of this Court’s “somewhat varying pronouncements on presumptions in express preemption cases”).

As Judge O’Scannlain has observed: because “this

area of law is troubling and confused, with tensions in

[the] Court’s precedents, splits in the circuits, and important practical questions unanswered,” “[g]reater

clarity and further guidance from the Court on how to

navigate preemption doctrine after Franklin would be

most welcome.” California Rest. Ass’n, 89 F.4th at

1113 (O’Scannlain, J., concurring). This case is an

ideal vehicle for providing that guidance.

18

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

Andrew E. Tauber

Counsel of Record

BRYAN CAVE LEIGHTON

PAISNER LLP

1155 F Street NW, Suite 700

Washington, DC 20008

(202) 508-6111

andrew.tauber@bclplaw.com

Geoffrey M. Pipoly

BRYAN CAVE LEIGHTON

PAISNER LLP

161 N. Clark Street, Suite

4300

Chicago, IL 60601

Counsel for Amicus PLAC

September 21, 2026