# Amicus Curiae Brief — Cipollone v. Liggett Group, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 504

## Text

—

T'susreme Court, US. \

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No. 90-1038 MAY 24 1991

FHE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

THOMAS CIPOLLONE,
Petitioner,
Vv.
LIGGETT GROUP, INC., et al.,

Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit

BRIEF OF THE AMERICAN MEDICAL ASSOCIATION
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER

KIRK B. JOHNSON *

EDWARD B. HIRSHFELD

MICHAEL L. ILE

AMERICAN MEDICAL ASSOCIATION
515 N. State Street

Chicago, IL 60610

(312) 464-4600

Attorneys for Amicus Curiae
American Medical Association

May 24, 1991 * Counsel of Record

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ASSEN
WILSON - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED
Amicus curiae will address the following question:

Whether the Federal Cigarette Labeling and Advertis-
ing Act, which requires warning labels on cigarette pack-
ages and advertisements, preempts state tort law. ,

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(i)

od
ee Se ee ee ——_ -— so —— / ——w — ~~

TABLE OF CONTENTS

QUESTION PRESENTED ..oo0.000..0..0...02.cc:ccccccceeeeeeeees
TABLE OF AUTHORITIES 2200000000000... -
INTEREST OF AMICUS CURIAE 0000000000... -
STATEMENT ...........

SUMMARY OF ARGUMENT i ao .

alec ctcclisdeertdettnacetecconeccosesesornsees

I. CONGRESS DID NOT EXPRESSLY PRE-
EMPT STATE TORT LAW IN THE LABEL-
EEE SET

Il. THE LABELING ACT DOES NOT IMPLI-
EDLY PREEMPT STATE TORT LAW ....... a

A. Congress Has Not Occupied The Entire Field
Of Protecting The Public From The Myriad
Dangers Caused By Or Associated With
Cigarette Smoking...» Area

B. There Is No Actual Conflict Between State
Tort Action And The —_— Of The
Labeling Act . AS oO i

(iii)

Page

13

13

17

22

iv

TABLE OF AUTHORITIES

CASES Page

Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968),

cert. denied, 396 U.S. 842 (1969)... 18
Barsky v. Board of Regents, 347 U.S. 442 (1954). 9,10
Carlisle v. Philip Morris, Inc., 805 S.W.2d 498

ft FF ( == ee 12
Dewey V. R.J. Reynolds Tobacco Co., 121 N.J. 69,

577 A.2d 1239 (1990)... 12
English v. General Elec. Co., 110 S. Ct. 2270

REE SEE VRE nae 9,10
Florida Lime & Avocado Growers, Inc. Vv. Paul,

FE 10, 11
Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d

655 (Minn. 1989)... 12
Goodyear Atomic Corp. v. Miller, 486 U.S. 174

EE reso ee aen sae <Oe eee 17
Hines Vv. Davidowitz, 312 U.S. 52 I itiasieeeetin 10
Hite v. R.J. Reynolds Tobacco Co., 396 Pa. Super.

82, 578 A.2d 417 (1990) 12
International Paper Co. v. Ouellette, 479 U.S. 481

RR Sava aaa eee veh Ow ped 15, 19

Jones V. Rath Packing Co., 430 U.S. 519 ( 1977)... 10

McSorley v. Philip Morris, Inc., 565 N.Y.S.2d 537
POND cciitiicidiipatiicisiittinemiaiinailialiata ett a 12

Pacific Gas & Elec. Co. v. State Energy Resource.
Conservation & Dev. Comm'n, 461 U.S. 190

Sip chsininiabeiiecrenbetabenadcibdiniticce nis ia 2 15
Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st
Ee 12
Pennington v. Vistron Corp., 876 F.2d 414 (5th
EE SrA ay Se 11
Phillips v. R.J. Reynolds Indus., Inc., 769
S.W.2d 488 (Tenn. Ct. App.1988) sts 12
Rice v. Santa Fe Elevator Corp., 331 U.S. 218
SEY cetielsictenstinesipneitdaCeitat a ee 10
Rogers v. R.J. Reynolds Tobacco Co., 557 N.E.2d
1045 (Ind. Ct. App. 1990) 12
Roysdon Vv. R.J. Reynolds Tobacco Co., 849 F.2d
|, RR a RIM ete ee 11-12

v

TABLE OF AUTHORITIES—Continued

Page
Schneidewind v. ANR Pipeline, Co., 485 U.S. 293
ae ee ee Le re ee 10
Silkwood v. Kerr-McGee Corp., 464 U.S. 238
ET ERE eee ee eee eae eee Se, eT passim
Stephen v. American Brands, Inc., 825 F.2d 312
TES SES GP ae? 0% SEP 12
STATUTES
Copyright Act of 1976, Pub. L. No. 94-553, 90
Stat. 2572 (1976) (codified as amended at 17
U.S.C. § 301 et seq.)
I cee eee ; 12
Employee Retirement Income Security Act of 1974
(ERISA), Pub. L. No. 93-406, 88 Stat. 829
(1974) (codified as amended at scattered sec-
tions of 29 U.S.C.)
29 U.S.C. § 1144(a) ...................... Pe TT 7 12
Federal Cigarette Labeling and Advertising Act,
Pub. L. No. 89-92, 79 Stat. 282 (1970) (codified
as amended at 15 U.S.C. § 1331 et seq.)
I aiaieian 14
A 9
15 U.S.C. § 13384(b) (1965). 11
15 U.S.C. § 1834(b) (1970). 9,11
I, 16
Federal Coal Mine Health and Safety Act, Pub. L.
No. 92-303, 86 Stat. 150-57 (codified as amended
at 30 U.S.C. § 901 ef seq.) 2.22. cccccccecceneeneee 15
Housing and Urban-Rural Recovery Act of 1983,
Pub. L. No. 98-181, 97 Stat. 1225 (1983) (codi-
fied as amended in scattered sections of 12
U.S.C.)
12 U.S.C. § 17152-17(d) 12
LEGISLATIVE MATERIALS
H.R. Rep. No. 449, 89th Cong., Ist Sess., re-
printed in 1965 U.S. Code Cong. & Admin. News
UIT sesninttceeemeritctiteetiiiaii tatiana eal nial ait dtc ea 14

vi
TABLE OF AUTHORITIES—Continued

S. Rep. No. 566, 91st Cong., Ist Sess., reprinted
in 1970 U.S. Code Cong. & Admin. News 2652.
Federal Cigarette Labeling and Advertising Act:
Hearings on S. 559 and S. 547 Before the S.
Comm. on Commerce, 89th Cong., Ist Sess.
RR Sr ee ae As ee
Federal Cigarette Labeling and Advertising Act:
Hearings on H.R. 2248, 3014, 4007, 7051, 4244
Before the House Comm. on Interstate and For-
eign Commerce, 89th Cong., Ist Sess. (1969).
Federal Cigarette Labeling and Advertising Act:
Hearings on H.R. 643, 1237, 3055, 6543 Before
the House Comm. on Interstate and Foreign
Commerce, 91st Cong., Ist Sess. (1969)
Memorandum to Record, Hearings on H.R. 2248
Before the House Comm. on Interstate and
Foreign Commerce, 89th Cong., 1st Sess.
TEL Seca ane noon er ae a
Tobacco Product Education and Health Protection
Act: Hearing on S. 1883 Before the Senate
Comm. on Labor and Human Resources, 101st
Cong., 2d Sess. (1990) sist
111 Cong. Rec. 16543-45 (daily ed. July 13, 1965).

OTHER AUTHORITIES
Advisory Committee to the Surgeon General,
Smoking and Health (1964) 3, 16,

Benowitz, Health and Public Policy Implications of
the “Low-Yield” Cigarette, 320 New Eng. J.
eee, Cr

40 Center for Disease Control, Morbidity and Mor-
tality Weekly Report (Feb. 1,1991)... sis

Comment, The Product Liability of the Tobacco In-
dustry: Has Cipollone v. Liggett Group Finally
Pierced the Cigarette Manufacturers Aura of
Invincibility?, 30 B.C.L. Rev. 1103 (1989)

Davis, Current Trends in Cigarette Advertising
and Marketing, 316 New Eng. J. Med. 725
EER ER IR nore SOc rd I ele

Page

13, 17

17

20

14, 20

20

vii
TABLE OF AUTHORITIES—Continued

Doll & Hill, The Mortality of Doctors in Relation to
Their Smoking Habits: A Preliminary Report,
ee SS |e” | ee

Federal Trade Commission, Report to Congress
Pursuant to the Federal Labeling and Adver-
I

Federal Trade Commission, Report to Congress
Pursuant to the Federal Labeling and Adver-
EE

Glantz & Parmley, Passive Smoking and Heart
Disease, 83 Circulation 1 (1991) ss

Leventhal, Glynn & Fleming, Js the Smoking De-
cision an ‘Informed Choice’?, 257 J. A.M.A.
Ea ae een ae

B. Maxwell & M. Jacobson, Marketing Disease to
Hispanics: The Selling of Alcohol, Tobacco and
rN

Mvers, Federal Trade Commission Staff Report
on the Cigarette Advertising Investigation
SRA Re Ee eo en ee

Reynolds, After Protests, Cancels Cigarette
Aimed at Black Smokers, N.Y. Times, Jan. 20,
NR RE ee ee

U.S. Surgeon Guend. Reducing the Health Con-
sequences of Smoking: 25 Years of Progres:

Page

3,4

5,7

REE REESE 2 oan ARERR ed passim

U.S. Surgeon General, The Health Consequences
of Smoking: Nicotine Addiction (1988)
K. Warner, Selling Smoke: Cigarette Advertising
and Public Health (1986)...
E. Whelan, A Smoking Gun: How the Tobacco In-
dustry Gets Away With Murder (1984)...
Wynder & Graham, Tobacco Smoking as a Possible
Etiologic Factor in Bronchogenic Carcinoma:
A Study of 684 Proved Cases, 143 J. A.M.A. 329
IITTIIT cnddeaaisamelita hbase tdntehiereitiemesiabaeasiaibsicttceaniacninletectadii ans

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1038

THOMAS CIPOLLONE,
Petitioner,
v.

Liccerr Group, INC., et al.,
Respondents.

On Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit

BRIEF OF THE AMERICAN MEDICAL ASSOCIATION
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

Amicus American Medical Association (“AMA”) is a
private, voluntary, non-profit organization of physicians.
The AMA was founded in 1846 to promote the science
and the art of medicine and to improve the public health.
Its 280,000 members—over half of all physicians cur-
rently licensed to practice medicine—practice in al! fields
of medical specialization.

2

Amicus has a strong interest in preserving the tradi-
tional prerogative of states to protect the health and
safety of their citizens and believes that, absent clear
evidence of congressional intent, this prerogative should
not be undermined by federal action which is itself
designed to protect the public health and safety. Amicus
has a particularly strong interest in the proper outcome
of this case because smoking is the leading preventable
cause of premature death in this country and is thus a
major threat to public health. By conferring an un-
warranted immunity from tort suits on the tobacco in-
dustry, the court of appeals has provided that industry
with significant incentives to pursue marketing prac-
tices that encourage individuals to begin or continue
smoking, thereby causing untold human suffering. At a
minimum, the availability of tort remedics in this setting
will place the financial responsibility for these injuries
on the parties most responsible for them—tobacco com-
panies. Finally, amicus has a strong interest in correct-
ing a misimpression created by some cigarette advertising
that the medical community believes that smoking is safe
or that certain cigarettes are “just what the doctor
ordered.” Pet. App. 6a-16a.

Because of the profound importance of this Court’s
decision on the public health of the nation, the AMA
wishes to present its views concerning the proper disposi-
tion of the tobacco industry’s claim of federal immunity
from state tort actions.'

STATEMENT

Forty years after the first studies linking smoking
and lung cancer, and 27 years after the Surgeon Gen-
eral’s first report warning of smoking’s myriad adverse
health effects, smoking remains the “leading cause of pre-

1 Pursuant to Rule 37.3 of the Rules of this Court, the parties
have consented to the AMA’s filing as amicus curiae in support
of petitioner. Letters of consent have been filed with the Clerk of
the Court.

3

ventable premature death” in this country. U.S. Surgeon
General, Reducing the Health Consequences of Smoking:
25 Years of Progress 10 (1989) (“Surgeon General’s
1989 Report”). Overall, the toll from smoking is stagger-
ing. Smoking is responsible for 30% of all cancer deaths,
21% of all deaths related to coronary heart disease, and
82% of all deaths related to emphysema and chronic bron-
chitis. /d. at 41. All told, cigarette smoke kills almost
500,000 Americans annually, substantially more than
1,000 individuals every day. 40 Center for Disease Con-
trol, Morbidity and Mortality Weekly Report 63 (Feb. 1,

-1991) (430,000 deaths due to smoking) ; Glantz & Parm-

ley, Passive Smoking and Heart Disease, 83 Circulation
1, 4 (1991) (53,000 deaths due to passive inhalation of
smoke).

Although suspected for centuries, the link between
smoking and illness was not firmly established until the
early 1950’s. See Doll & Hill, The Mortality of Doctors
in Relation to Their Smoking Habits: A Preliminary
Report, 1 Br. Med. J. 1451 (1954); Wynder & Graham,
Tobacco Smoking as a Possible Etiologic Factor in Bron-
chogenic Carcinoma: A Study of 684 Proved Cases, 143
J. A.M.A. 329 (1950). Relying on these and other studies
demonstrating that tobacco causes cancer of the lung,
larnyx, and oral cavity, as well as chronic bronchitis, the
Surgeon General concluded in his landmark 1964 report
that “|cligarette smoking is a health hazard of sufficient
importance in the United States to warrant appropriate
remedial action.” Advisory Committee to the Surgeon
General, Smoking and Health 33 (1964) (“Surgeon
General’s 1964 Report”). One year later, Congress en-
acted the Federal Cigarette Labeling and Advertising
Act, which required manufacturers to warn smokers that
smoking posed a threat to their health.

Since 1964, the scientific community has continued to
explore the frightening relationship between smoking and
illness. It is now known that cigarette smoke, which
contains at least 43 carcinogenic agents, Surgeon Gen-

d

eral’s 1989 Report at 86-87, also cause esophageal
cancer and is associated with a significantly heightened
risk of cancer of the bladder, kidney, pancreas, stomach,
cervix and endometrium. /d. at 43-58. It is now also
known that smoking causes a wide array of nonmalig-
nant, though potentially fatal, diseases and conditions
in addition to chronic bronchitis, including coronary
artery disease, cerebrovascular disease, peripheral vascu-
lar disease, emphysema, and intra-uterine growth re-
tardation, id. at 59-72, and is associated with infertility,
increased infant mortality, peptic ulcer disease and per-
haps osteoporosis.2. Even passive smokers—those who
inhale the smoke of others—are now known to be at
risk for smoking-related illnesses, including cancer of
the lung and coronary artery disease. Glantz & Parmley
at 6-10.

Perhaps most critically, research since 1964 has dem-
onstrated that nicotine in tobacco smoke is highly ad-
dictive. According to the Surgeon General, “the pharma-
cologic and behavioral processes that determine tobacco
addiction are similar to those that determine addiction
to drugs such as heroin and cocaine.”” U.S. Surgeon Gen-
eral, The Health Consequences of Smoking: Nicotine
Addiction 9 (1988). Nicotine is “psychoactive (‘mood
altering’! and can provide pleasurable effects. . . . Nico-
tine also causes physical dependence characterized by a
withdrawal syndrome that usually accompanies nicotine
abstinence.” Jd. at 215.

Despite overwhelming evidence concerning the deadly
and addictive effects of smoking, the tobacco industry
has consistently maintained that there is no evidence
that smoking actually causes the diseases to which it is
statistically linked,* and the industry still publicly ques-

* Smoking was known to be statistically associated With some of
these illnesses in 1964, but a causal relationship was not estab-
lished until more recently. Surgeon General’s 1989 Report at 98-99.

® The tobacco industry has, at various times, argued that the
increase in the incidence of illnesses among smokers may be the

5

tions the link between smoking and illness.‘ Moreover,
the industry still denies that smoking is addictive, claim-
ing that it is merely a “habit” like many other innocuous
habits.°

More important, the tobacco industry, through adver-
tising and promotional campaigns, has for decades broad-
cast a message about the health effects of smoking that
flatly contradicted the overwhelming scientific evidence
and undermined to a great extent the mandated warnings
on cigarette packages. The magnitude of this advertising
and promotional effort is remarkable. The tobacco in-
dustry now spends close to $3.5 billion annually on adver-
tising and promotion, making cigarettes one of the most
heavily marketed consumer products. Surgeon General’s
1989 Report at 500; Federal Trade Commission, Report
To Congress Pursuant to the Federal Cigarette Laheling
and Advertising Act 4 (1988). In 1985, cigarettes were
the most heavily advertised product in outdoor media,
the second most heavily advertised product in magazines,
and the third most heavily advertised product in news-

result of improved ability to detect disease; that the association
between smoking and illness is purely coincidental; that individ-
uals who smoke are more prone to disease than non-smokers: that
no one factor could cause so many diseases; that tobacco cannot
be the cause of smoking-related illnesses because not all smokers
become ill; and that all of the studies linking smoking and disease
are flawed. E. Whelan, A Smoking Gun: How The Tohacco Trade
Gets Away With Murder 15-27 (1984); Myers, Federal Trade
Commission Staff Report on the Cigarette Advertising Investiga-
tion 1-58-65 (1981). None of these arguments stands up to rigor-
ous analysis. See Myers at 1-65.

* See, e.g., Tobacco Product Education and Health Protection
Act: Hearing on S. 1883 Before the Senate Comm. on Labor and
Human Resources, 101st Cong., 2d Sess. 77 (1990) ‘statement
of Charles O. Whitley, Counsel, The Tobacco Institute) (referring
to “alleged” health effect of smoking).

5 Id. at 100 (“when you use the word addictive. we think that
is the wrong word”),

6

papers. Davis, Current Trends in Cigarette Advertising
and Marketing, 316 New Eng. J. Med. 725, 727 (1987).
To a large extent, this massive campaign is driven by the
tobacco industry’s need to attract some 5,000 new smok-
ers each day to make up for those who die or quit. K.
Warner, Selling Smoke: Cigarette Advertising and Public
Health 18 (1986).

In its advertising, the tobacco industry conveys the
deceptive message that smoking is fully compatible with
a healthy, active, successful, and independent lifestyle.
Specifically, cigarette advertising distracts the public’s
attention from the health hazards of smoking by mini-
mizing the health effects of smoking; * by showing smok-
ers who convey positive personality characteristics such
as sophistication, rugged individualism, attractive appear-
ance, and independence (especially for women) ;"* by
showing smokers enjoying romantic, business, and social
success: and by linking smoking to athletic endeavors,
especially outdoors in the fresh air. K. Warner, at 46-
48: Federal Trade Commission, Report to Congress
Pursuant to the Federal Cigarette Labeling and Adver-
tising Act 5-10 (1978). Smoke itself is rarely shown in
advertisements because it is believed to convey a negative

® Cigarette advertisements, for example, imply strongly that
“low-tar” cigarettes are safe. While there is some evidence that
individuals who smoke such cigarettes are at lower risk for
contracting certain cancers, there is strong evidence to suggest
that the risk of cardiovascular disease, emphysema, and fetal dam-
age is not reduced. See Benowitz, Health and Public Policy Im-
plications of the “Low-Yield” Cigarette, 320 New Eng. J. Med.
1619, 1620 (1989); Davis, Current Trends in Cigarette Advertis-
ing and Marketing, 316 New Eng. J. Med. 725, 728 (1987).

7 The link to women’s independence is best illustrated by the
well-known Virginia Slims slogan “You’ve come a long way baby.”
Ironically, because so many women now smoke, lung cancer has
recently surpassed breast cancer as the leading cause of cancer
death among women. Surgeon General’s 1989 Report at 46.

7

image, K. Warner, at 47, and indeed cigarettes themselves
are frequently not shown in advertisements.*

Increasingly, to maintain or increase sales, cigarette
manufacturers have targeted their advertisements at spe-
cific segments of the market. In recent years, for ex-
ample, they have focused on inducing women, minorities,
blue collar workers, and children to smoke.* See Reynolds,
After Protests, Cancels Cigarette Aimed at Black Smok-
ers, N.Y. Times, Jan. 20, 1990, at Al, col. 3; B. Max-
well & M. Jacobson, Marketing Disease to Hispanics: The
Selling of Alcohol, Tobacco, and Junk Foods 37-42
(1989) ; Davis, at 728-31. Of these groups, children are
clearly at the highest risk because they are the most
susceptible to advertising. More than 90% of regular
smokers begin to smoke before the age of 20, and, al-
though most young people are aware, to some extent,
that smoking is dangerous, most have significant misper-
ceptions about the gravity of the risk. See Surgeon Gen-
eral’s 1989 Report at 212-16; Leventhal, Glynn & Flem-
ing, Is the Smoking Decision an ‘Informed Choice’?, 257
J. A.M.A. 3373-76 (1987).

Children are not the only Americans who misperceive
the risks of smoking. Due to the efforts of the Surgeons
General and many others, most Americans are now gen-
erally aware that smoking is unhealthy. Nevertheless,
the public’s knowledge of the health effects has remained
remarkably limited. Surveys demonstrate, for example,
that many Americans cannot identify many of the most
common illnesses caused by smoking. See Myers, Federal
Trade Commission Staff Report on the Cigarette Adver-
tising Investigation 3-45-48 (1981). Moreover, studies

S Examples of cigarette advertisements are included in the
Appendix.

® Cigarette advertisements frequently contain cartoon characters,
and manufacturers advertise heavily in publications with large
teenage readerships. See Davis, at 730.

8

shew that Americans have little understanding of just
how dangerous cigarettes are. Americans underestimate
substantially the absolute health risk of smoking, the
relative risk of dying or of developing disease, and the
risks of dying from smoking compared to the risk of
dying from other causes. Surgeon General’s 1989 Report
at 204-12.

In sum, cigarettes are powerfully addictive and fre-
quently lethal products. Responding to mounting evidence
of the adverse effects of smoking more than 25 years
ago, Congress required manufacturers to warn consumers
that smoking was dangerous. Through a massive cam-
paign of disinformation, however, manufacturers have
undermined the force of this warning and have continued
to induce new smokers to try, and to continue to use,
their inherently dangerous product. Ironically, the to-
bacco industry now argues that Congress, in the legisla-
tion requiring manufacturers to warn consumers of the
health consequences of their product, also immunized this
industry from all tort suits.

SUMMARY OF ARGUMENT

In the Federal Cigarette Labeling and Advertising Act
(“the Labeling Act”), Congress responded, first, to the
growing body of scientific evidence discussed above that
linked smoking to a number of fatal diseases, and, sec-
ond, to a number of diverse and potentially conflicting
regulatory measures that state and local governments,
as well as the Federal Trade Commission, were consider-
ing implementing in response to this scientific evidence.
The Labeling Act established a nationally uniform warn-
ing for cigarette packaging and advertising that was
designed, primarily, to inform consumers of the hazard-
ous nature of smoking and, secondarily, to forestall the
confusion and economic dislocations that numerous in-
consistent labeling requirements might cause,

9

The Labeling Act, however, was not designed to pre-
empt state common law tort actions such as those that
petitioner brought against respondents, nor does the Act
have such preemptive force. Such state tort actions,
which deter conduct injurious to the public health and
safety and/or provide remedies to injured individuals,
touch on areas that are traditionally matters of local
concern. Barsky v. Board of Regents, 347 U.S. 442, 449
(1954). While Congress certainly can preempt state law
even in areas that lie at the core of the states’ historic
police powers, it must do so clearly and unambiguously,
and any doubts as to the preemptive sweep of a federal
law that might displace such powers must be resolved
against preemption. English v. General Elec. Co., 110
S. Ct. 2270 (1990).

Here, the language, purpose, and history of the Label-
ing Act all militate against a finding of preemption.
The Labeling Act’s express preemption provision is a
narrow one, prohibiting states from requiring statements
other than the congressionally mandated warning on ciga-
rette packages, see 15 U.S.C. §1334(a), and barring
States from enacting cigarette industry-specific laws or
regulations governing cigarette advertising and promo-
tion. Id. §1334(b). Neither subsection unambiguously
purports to displace all state laws that relate in any
way to smoking.

The Labeling Act, moreover, does not impliedly pre-
empt state tort actions. By mandating a single-sentence
warning that smoking is injurious to health, Congress
in no way occupied the entire field: of smoking and
health. Nor is there any actual conflict between the
Labeling Act and state tort law. Compliance with both
the federal warning requirement and any obligations im-
posed by state tort law is not physically impossible. Si/k-
wood Vv. Kerr-McGee Corp., 464 U.S. 238, 257 (1984).
Moreover, to the extent there is any tension between
the incidental regulatory effects of state tort law and
the Labeling Act’s secondary goal of uniformity, the

10

legislativ® debates surrounding the Act, all of which
assumed the continued availability of state tort actions,
and the language of the Act itself, make clear that such
tension is not only tolerable, but that the goal of pro-
moting public awareness of the health hazards of smok-
ing must take precedence. Silkwood, 464 U.S. at 254-57.

ARGUMENT

Whether federal legislation preempts state law is ulti-
mately a question of congressional intent. Schneidewind
Vv. ANR Pipeline, Co., 485 U.S. 293, 299 (1988). Congress
may manifest a desire to displace state law in several
ways. First, Congress may preempt state law expressly.
Jones V. Rath Packing Co., 430 U.S. 519, 525 (1977).
Second, preemptive intent may be inferred where the
scheme of federal regulation is so comprehensive or per-
vasive that Congress can be said to have “left no room”
for supplementary state regulation. Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230 (1947). Finally, even
where Congress has not completely displaced state regu-
lation, state law may nevertheless be preempted to the
extent it actually conflicts with federal law. Conflicts
arise when “compliance with both federal and state regu-
lations is a physical impossibility,” Florida Lime & Avo-
cado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963),
or where state law “stands as an obstacle to the accom-
plishment and execution of the full purposes and objec-
tives of Congress.” Hines v. Davidowitz, 312 U.S. 52,
67 (1941).

Several well-settled principles guide this Court’s pre-
emption analysis. Thus, while Congress certainly can pre-
empt state law even in areas, such as public health and
safety, that are traditionally matters of local concern,
Barsky, 347 U.S. at 449, its “intent to supersede state
laws must be ‘clear and manifest.’ ” English, 110 S. Ct. at
2275 quoting Rath Packing Co., 430 U.S. at 525, quot-
ing Santa Fe Elevator Corp., 331 U.S. at 230. This

11
Court, therefore, will “not || conclude that Congress
legislated the ouster of [state law] .. . in the ab-

sence of an unambiguous congressional mandate to that
effect.” Florida Lime & Avocado Growers, Inc., 373 U.S.
at 146-47. As amicus demonstrates below, no mandate to
eliminate state tort law and immunize the tobacco in-
dustry from liability for the injuries its products cause
can be found in the Labeling Act.

I. CONGRESS DID NOT EXPRESSLY PREEMPT
STATE TORT LAW IN THE LABELING ACT.

Section 5 of the Labeling Act specifies the statute’s
preemptive effect. At the time of the Act’s initial pas
sage, Section 5 provided that:

(a) |nlo statement relating to smoking and health,
other than the statement required by section 4 of
this Act, shall be required on any cigarette package.

(b) {[nlo statement relating to smoking and health
shall be required in the advertising of any cigarettes
the packages of which are labeled in conformity with
the provisions of this Act.

Pub. L. No. 89-92, 79 Stat. 300 (1965). In 1970, Con-
gress modified subsection (b) to provide as follows:

injo requirement or prohibition based on smoking
and health shall be imposed under State law with
respect to the advertising or promotion of any ciga-
rettes the packages of which are labeled in con-
formity with the provisions of this chapter.

15 U.S.C. § 1334(b).

Because these provisions do not clearly and unambig-
uously preempt state common law torts, every court that
has passed on the question has concluded that the Label-
ing Act’s preemption provision does not extend to state
tort law." These decisions are plainly correct.

1 See Pet. App. 100a-103a; Pennington Vv. Vistron Corp., 876
F.2d 414, 418 (5th Cir. 1989); Roysdon v. R. J. Reynolds Tobacco

12

The language of the 1965 and 1970 preemption pro-
visions falls far short of evincing a clear congressional!
desire to displace the states’ historic police powers. To
begin with, neither version of Section 5 explicitly men-
tions state common law. The absence of any such refer-
ence stands in stark contrast to the preemption provisions
of other enactments in which Congress has left no doubt
that it meant to displace state common law."

Had Congress actually intended the Labeling Act to
preempt petitioner’s common law claims, moreover, it
could hardly have chosen a more elliptical and ultimately
ineffectual way of expressing its desire than the language
employed in Section 5. While some tort actions might
induce cigarette manufacturers to include additional state-
ments about the health hazards of smoking on cigarette
packages, tort law does not require the only action sub-

Co., 849 F.2d 230, 234 (6th Cir. 1988); Palmer v. Liggett Group,
Inc., 825 F.2d 620, 625 (1st Cir. 1987); Stephen v. American
Brands, Inc., 825 F.2d 312, 313 (11th Cir. 1987); Rogers v. R-.J/.
Reynolds Tobacco Co., 557 N.E.2d 1045, 1050 (Ind. Ct. App. 1990) ;
Forster Vv. R.J. Reynolds Tobacco Co., 437 N.W.2d 655, 658 (Minn.
1989); Dewey Vv. R.J. Reynoids Tobacco Co., 121 N.J. 69, 577 A.2d
1239, 1247 (1990) (reproduced at Pet. App. 181la-226a) ; McSorley Vv.
Philip Morris, Inc., 565 N.Y.S.2d 537, 538-39 (1991); Hite v. RJ.
Reynolds Tobacco Co., 396 Pa. Super. 82, 578 A.2d 417, 419-20
(1990); Philips v. R.J. Reynolds Indus., Inc., 769 S.W.2d 488, 490
(Tenn. Ct. App. 1988); Carlisle v. Philip Morris, Inc., 805 S.W.2d
498, 517 (Tx. Ct. App. 1991).

'! See, ¢.g., the Housing and Urban-Rural Recovery Act of 1983,
12 U.S.C. § 17152-17(d) (preempting any “State constitution, stat-
ute, court decree, common law, rule, or public policy” affecting speci-
fied mortgages) (emphasis added); the Copyright Act of 1976, 17
U.S.C. § 301(a) (providing that “no person is entitled to any | copy-
right} or equivalent right .. . under the common law or statutes of
any State”) (emphasis added); Employment Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. $1144(a) (superseding
“any and all State laws insofar as they may now or hereafter relate
te any employee benefit plan”) (emphasis added).

13

section (a) prohibits—the making of statements on ciga-
rette packages. Even the slightly broader language of
Section 5(b) does nothing more than bar states from
enacting cigarette industry-specific laws and regulations.
Indeed, to read the “based on smoking and health” lan-
guage more broadly—i.e., as barring all state law-based
requirements or prohibitions that relate to smoking and
health—would prove entirely too much: such a reading
would, for example, exempt the cigarette industry from
generally applicable state and local laws governing the
size and placement of advertisements on public streets or
highways—a result that finds absolutely no support in
the Labeling Act’s structure, purpose, or history.

Amicus submits that common law tort actions fall out-
side the reach of Section 5, which, by its plain terms,
only preempts state efforts to pass cigarette industry-
specific laws and regulations.'"* In any event, because
the reading of Section 5 that amicus posits is at least
plausible, the preemptive effect of the Labeling Act on
state tort law is, at a minimum, ambiguous. Such am-
biguity is sufficient, standing alone, to defeat a claim of
express preemption.

Il. THE LABELING ACT DOES NOT IMPLIEDLY PRE-
EMPT STATE TORT LAW.

A. Congress Has Not Occupied The Entire Field Of
Protecting The Public From The Myriad Dangers
Caused By Or Associated With Cigarette Smoking.

The narrow scope of the Labeling Act’s preemption
provision is hardly surprising in light of the limited ob-
jectives of the Act itself. The catalyst behind the Act

'2 Indeed, this is the reading that Congress itself has endorsed.
See S. Rep. No. 566, 91st Cong., Ist Sess., reprinted in 1970 U.S.
Code Cong. & Admin. News 2652, 2663 (“The State preemption of
regulation or prohibition with respect to cigarette advertising is
narrowly phrased to preempt only State action based on smoking
and health’’).

14

was the Surgeon General’s 1964 report, which con-
cluded that cigarette smoking was a significant health
hazard warranting “appropriate remedial action.” The
Report itself, however, did not specify what remedial
action should be taken or by whom, and, as a result, a
number of state and local governments (as well as the
Federal Trade Commission) responded by proposing or
adopting a variety of regulatory measures, principally
warning requirements on cigarette packages and adver-
tising warning requirements. Hearings on H.R. 643,
1237, 3055, 6543 Before the House Comm. on Interstate
& Foreign Commerce, 91st Cong., 1st Sess. 554 (1969).

The Labeling Act represented Congress’ response to
both the growing body of medical evidence that smoking
was hazardous, and the potentially inconsistent state and
local warning requirements that the medical evidence
threatened to spawn. Thus, the Act established a na-
tionally uniform warning for cigarette packaging and
advertising that was designed, first and foremost, to in-
form consumers of the hazardous nature of smoking and,
secondarily, to forestall the confusion and economic dis-
locations that numerous inconsistent labeling require-
ments could cause.’* Consistent with these objectives,
Congress preempted state authority to prescribe addi-
tional or different affirmative warnings on cigarette pack-
aging or in cigarette advertising, and barred states from

1% The subordinate nature of the Labeling Act’s secondary goal
is made clear in the Act’s statement of purpose, which provides
that the national economy is to be protected from the effects of
diverse warning requirements “to the maximum extent consistent
with [the! declared policy” of informing the public of the dangers
of smoking. 15 U.S.C. § 1331(2). See also H.R. Rep. No. 449, 89th
Cong., lst Sess., reprinted in 1965 U.S. Code Cong. & Admin. News
2350 (“The principal purpose of the bill was to provide adequate
warning to the public of the potential hazards of cigarette smoking
by requiring the labeling of cigarette packages”) (emphasis added).

15

enacting prohibitions that would effectively compel such
affirmative warnings.

It is altogether untenable, however, to suggest that,
by prescribing a single-sentence warning and barring
States from requiring any other, Congress occupied the
entire field of protecting the public from the myriad
dangers caused by or associated with cigarette smoking.
The Labeling Act is in no sense “a scheme of federal

regulation . . . so pervasive as to make reasonable the
inference that Congress left no room for the States to
supplement it... .” Pacific Gas & Elec. Co. v. State

Energy Resources Conservation and Dev. Comm’n, 461
U.S. 190, 204 (1983) (citations and internal qaotations
omitted). To the contrary, it says nothing whatever
about the duties and liabilities of cigarette manufac-
turers or the rights of their consumers;" it does not
purport to regulate the marketing behavior of the ciga-
rette industry or the safety of cigarette products; it pro-
vides no alternative means of redress for the hundreds of
thousands of people who die or b:zome seriously ill
each year as a result of smoking, nor does it establish
a fund out of which these victims of smoking may be
compensated.'®

The explanation for Congress’ limited response is
simple, viz., it lacked a full understanding of the health
hazards posed by smoking and the societal impacts those
hazards would have. The Surgeon General’s 1964 Report
concluded that cigarette smoking caused a number of
fatal illnesses (notably lung cancer) and was associated
with a number of others (such as coronary artery dis-

‘Compare International Paper Co. Vv. Ouelette, 479 U.S. 481,
497 (1987) (Clean Water Act “specifically provides for a process
whereby the[] interests [of source and affected States] will be
considered and balanced .. .”).

'S See, e.g., Federal Coal Mine Health and Safety Act, 30 U.S.C.
$ 901 ef seq. (establishing comprehensive compensation scheme for
victims of black lung disease) .

16

ease), and that deaths attributable to these diseases had
increased “‘with great rapidity over the past few decades.”
Surgeon General’s 1964 Report at 25. The Report ac-
knowledged, however, that the “total number of excess
deaths causally related to cigarette smoking in the U.S.
population cannot be accurately estimated,” id. at 31, at
least in part because of the difficulties of pinpointing the
causal relationship between cigarette consumption and
certain diseases.'® Recognizing the need for further re-
search, Congress required the Secretary of Health, Educa-
tion and Welfare (now Health and Human Services) to
report annually on “current information [o]n the health
consequences of smoking, and . .. [to make] such recom-
mendations for legislation as he may deem appropriate.”
15 U.S.C. § 1337 (a).

Subsequent research has revealed that smoking is even
more dangerous than previously thought. As amicus ex-
plained above, smoking is now known to cause esopha-
geal cancer as well as a variety of serious and potentially
fatal vascular diseases, and is known now also to be asso-
ciated with a number of other malignant and non-malignant
diseases and impairments of the reproductive system,
some of which were not even considered at the time of
the 1964 report. Perhaps most significantly, the pharma-
ecologic and behavioral bases of nicotine addiction have
only recently been established. U.S. Surgeon General,
The Health Consequences of Smoking: Nicotine Addiction
215 (1988).

16 See, e.g., Surgeon General’s 1964 Report at 31 (“It is recog-
nized that no simple cause-and-effect relationship is likely to exist
between a complex product like tobacco smoke and a specific disease
in the variable human organism’); id. at 38-39 (noting that
effects of nicotine and smoking “do not account well for the ob-
served association between cigarette smoking and coronary disease,”
which, then as now, was one of the leading causes of death in
males).

17 Congress, of course, has been kept apprised of these develop-
ments. Thus, for example, in the Senate Report that accompanied

17

The suggestion that Congress was 1) aware that
smoking was suspected to be one of the nation’s leading
causes of preventable death and illness and 2) aware
that the full nature of the health effects of smoking had
not been determined, yet nevertheless chose to strip
millions of American smokers of any right to redress for
injuries inflicted by this lethal product is not realistic.
See Silkwood, 464 U.S. at 252 (“It is difficult to believe
that Congress would, without comment, remove all
means of judicial recourse for those injured by illegal
conduct”).’* To the contrary, the Labeling Act can only
be understood as Congress’ first effort to explore, rather
than to occupy, the expanding field of smoking-related
illness and death.

B. There Is No Actual Conflict Between State Tort
Action And The Purposes Of The Labeling Act.

Because state tort law can only compel the payment
of damages, compliance with such state laws and the
Labeling Act is not physically impossible. Cf. Goodyear
Atomic Corp. v. Miller, 486 U.S. 174, 185-86 (1988)
(operator of federal facility “may choose to disregard
[State] safety regulations and simply pay an additional

the 1970 amendments to the Labeling Act, Congress noted the
then-current advances in medical research. See S. Rep. No. 566,
reprinted in 1970 U.S. Code Cong. & Admin. News at 2654-55.

8 Such a result is particularly unthinkable in view of the fact
that cigarette manufacturers never even asked Congress to exempt
them from liability under state tort regimes (even though tort
suit had been brought against manufacturers as early as the
1950s, see Comment, The Product Liability of the Tobacco In-
dustry: Has Cipollone v. Liggett Group Finally Pierced the Ciga-
rette Manufacturers’ Aura of Invincibility?, 30 B.C.L. Rev. 1103,
1117-26 (1989) ), and instead sought relief only from the “intoler-
able” burden of inconsistent labeling requirements. See Cigarette
Labeling and Advertising Act: Hearings on S. 559 and S. 547
Before the S. Comm. on Commerce, 89th Cong., Ist Sess. 246 (1965)
(testimony of Bowman Gray, Chairman, R.J. Reynolds Tobacco
Company).

18

workers’ compensation award if an employee’s injury is
caused by a safety violation”); Silkwood, 464 U.S. at
257 (“Paying both federal fines and state-imposed puni-
tive damages for the same incident would not appear to
be physically impossible”). The Labeling Act can only
preempt state tort actions, therefore, if such actions
frustrate the purposes and objectives of the Act.

The Third Circuit concluded that state tort law is pre-
empted based on its determination that state tort actions
would upset Congress’ “carefully drawn balance between
the purposes of warning the public of the hazards of
cigarette smoking and protecting the interests of the
national economy.” Pet. App. 105a. This reasoning is
flawed in a number of crucial respects.

To begin with, as the previous analysis reveals, the
Labeling Act does not represent a carefully drawn bal-
ance between the competing interests of smokers and
manufacturers. Congress did not purport to fix the rights
and liabilities of smokers and manufacturers or to regu-
late their relationship in any way. See supra at 15-16.
The Third Circuit’s contrary determination, moreover,
necessarily assumes that Congress established the fed-
erally-mandated warning as a cap on the amount of in-
formation the public could obtain concerning the mani-
fold dangers of smoking, “lest the public learn too much
about the hazards of smoking for the good of the tobacco
industry and the economy.” Banzhaf v. FCC, 405 F.2d
1082, 1089 (D.C. Cir. 1968), cert. denied, 396 U.S. 842
(1969). This cynical assumption is unwarranted given
Congress’ awareness that “cigarette smoking contributes
substantially to . . . the [nation’s] overall death rate,”
Surgeon General’s 1964 Report at 31, and its recognition
that the full scope of smoking’s contribution to the na-
tion’s mortality was not yet known.’®

19 In construing the preemptive force of the Atomic Energy Act,
this Court noted in Silkwood that, while the primary purpose of
the Act was the promotion of nuclear power, Congress did not

ae

19

State tort actions, moreover, do not upset the only
balance Congress actually struck in the Labeling Act:
that between the desire of state and local entities to
prescribe mandatory warning requirements and the desire
of the tobacco industry to avoid diverse and inconsistent
labeling requirements. While damage awards may induce
cigarette manufacturers to provide additional informa-
tion about the dangers of their products, to refrain from
disseminating false information, or to attempt to make
their products safer, such awards neither require nor
prohibit any particular conduct with respect to the ad-
vertising of cigarettes, and in no way do they compel a
manufacturer to place a state-prescribed warning label
on any cigarette package or advertisement.*” Cf. Inter-
national Paper Co., 479 U.S. at 495 (state nuisance laws
preempted because they would subject polluters “to the
threat of legal and equitable penalties . .. [which] would
compel the [polluter] to adopt different control standards
and a different compliance schedule from those approved
by the EPA .. .”; a state court “also could require the
[polluter] to cease operations by ordering immediate
abatement”) (emphases added).

Finally, to the extent there is any tension between the
incidental regulatory effects of state tort actions and the
secondary purpose of the Labeling Act, Congress plainly
viewed such tension as tolerable. First, Congress barred
states from imposing requirements or prohibitions on

intend to pursue nuclear power at all costs. 464 U.S. at 257. Here,
by contrast, the primary purpose of the Labeling Act was to protect
the public health; indeed, even the secondary purpose was not to
“promote” an industry whose products “contribute[ | substantially
. . . to the overall death rate,” Surgeon General’s 1964 Report at 31,
but simply to protect that industry from diverse and inconsistent
labeling requirements.

2° Strict liability actions, moreover, do not induce any behavior
modification, except perhaps a total cessation of a subject activity,
since by definition a defendant cannot take remedial steps to avoid
liability under this tort theory.

20

cigarette advertising “based on,” rather than those “re-
lating in any way to,” smoking and health. See supra at
13. Having chosen to preempt only cigarette-specific state
laws and regulations, Congress must be presumed to have
concluded that the incidental regulatory effects of gen-
erally applicable state tort duties are fully compatible
with the purposes of the Act.

Second, the legislative history makes unmistakably clear
that Congress believed state tort actions would continue
to be available after passage of the Act. Thus, while
there is not a single statement in the legislative history
indicating that Congress intended to preempt state tort
law, there was considerable discussion concerning the
effect that the federaily-mandated warning would have on
the outcome of such suits, particularly in duty to warn
claims.*! Cf. Silkwood, 464 U.S. at 254 (“the importance

21 See, e.g., Cigarette Labeling and Advertising Act: Hearings
on H.R. 643, 1237, 3055, 6543 Before the House Comm. on Interstate
and Foreign Commerce, 91st Cong., Ist Sess. 579 (1969) (statement
of Congressman Watson) (“{N]owhere in the Act of 1965 does it
preclude an individual or prevent an individual from pursuing a
common-law liability [claim], as far as I know’); Jd., at 577-82,
589 (congressional discussions concerning effect of 1965 Act on
assumption-of-risk defense); Cigarette Labeling and Advertising
Act: Hearings on H.R. 2248, 3014, 4007, 7051, 4244 Before the
House Comm. on Interstate and Foreign Commerce, 89th Cong., Ist
Sess. 176 (1965) (statement by Theodore Ellenbogen, Acting Assist-
ant General Counsel of the Department of Health, Education, and
Welfare) (Common-law suits were “a private matter . . . not regul-
lated by this bill”) ; Memorandum to Record, Hearings on H.R. 2248
Before the House Comm. on Interstate and Foreign Commerce, 89th
‘Cong., 1st Sess. 177-78 (1965) (“Assuming a clear statement [re-
quired of manufacturers], suits based on negligence probably would
be barred on three grounds. Having warned the buyer, the manu-
facturer could not be said to be negligent; the buyer is contributorily
negligent in using a product he knows might harm him; and hav-
ing been warned the buyer assumes the risk attendant to the use
of the cigarettes. ... [A]ctions based on breach of warranty would
probably be unsuccessful. When a seller warns a buyer of the
possibility of a certain form of injury, it cannot be said that he

21

of the legislation for present purposes is not so much in
its substance, as in the assumptions on which it was
based”). Congressional recognition of the significant,
non-preemptive effects federal law would have on state
tart law actions is completely inconsistent with the con-
tention that Congress immunized tobacco companies by
broadly preempting state law. Moreover, Congress under-
stood that for many state tort actions the warning labels
would significantly enhance the tobacco companies’ argu-
ments that they acted reasonably. This would in turn
have a significant impact on the deliberations of the trier
of fact in a tort action. In short, Congress did not ignore
the tobacco industry; it simply did not immunize it, which
is hardly surprising in view of the fact that the industry
did not seek such relief. See note 18, supra.

Whatever the evidentiary value of the warning label in
such actions, however, the significance of this legislative
history is crystal clear. Preemption is ultimately a ques-
tion of congressional intent, and here Congress contem-
plated the coexistence of the federal warning label re-
quirement and state tort actions against manufacturers
even though they comply with that requirement. Under
these circumstances, there can be no doubt that Congress
viewed any tension between the regulatory effects of tort
law and the Labeling Act’s requirements as tolerable.

* * * i.

is warranting that the injury will not occur’; 111 Cong. Ree.
16543-45 (daily ed. July 13, 1965) (statement of Congressman
Fascell) (“The legislative record makes it clear that passage of
this law and compliance by the manufacturer in no way affects
the right to raise the defense of ‘assumption of risk’ and the legal
requirement for such a defense to prevail; nor does it shift the
burden of proof, nor could it be considered a legal or factual bar
to the plaintiff user.... By virtue of the language being required
as a result of the law, it would raise the presumption that every
company that makes and distributes this product does so with
knowledge. If that is true, it would redound to the benefit of a
plaintiff bringing an injury suit”).

22

The United States Code abounds with evidence of
Congress’ concern for the health and welfare of this na-
tion. Federal law regulates the quality and safety of
the food and drugs we consume, the cars we drive, the
industries in which we work, the air we breathe, and the
water we drink. Nevertheless, the cigarette industry con-
tends that in passing a law whose principal purpose was
to inform the public of the profound dangers of smoking,
Congress granted a blanket immunity from liability to the
manufactures of what is today the “leading cause of
preventable premature death” in the United States. What
is more, the industry contends that Congress singled out
this lethal product for such extraordinary treatment with-
out comment or debate, and without granting the hun-
dreds of thousands of people who die or become seriously
ill from smoking each year any alternative remedy.
Nothing in the Labeling Act’s language, purpose, nor his-
tory supports, let alone compels, this result.

CONCLUSION

The judgment of the court of appeals should be re-
versed.
Respectfully submitted,

KIRK B. JOHNSON *

EDWARD B. HIRSHFELD

MICHAEL L. ILE

AMERICAN MEDICAL ASSOCIATION
515 N. State Street

Chicago, IL 60610

(312) 464-4600

Attorneys for Amicus Curiae
American Medical Association

May 24, 1991 * Counsel of Record

APPENDIX

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APPENDIX

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---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0066%3A14. Public record. Not legal advice.