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

ast v.

LicceTr Group, INC., ET AL., RESPONDENTS

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

As BRIEF FOR THE PRODUCT LIABILITY

Sea ADVISORY COUNCIL, INC., AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

KENNETH S. GELLER ¥

a. Counsel of Record A

ee MARK I. LEvy .

- Mayer, Brown & Platt

* 2000 Pennsylvania Avenue, N.W.

es Washington, D.C. 20006

2 (202) 463-2000

Counsel for Amicus Curiae

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TABLE OF CONTENTS

INTEREST OF THE AMICUS CURIAE

INTRODUCTION AND SUMMARY OF ARGUMENT.

i ose i RET SCRE se Ne ert Ae

I.

Il.

THE CIGARETTE LABELING AND AD-

VERTISING ACT EXPRESSLY PREEMPTS

STATE LAW, INCLUDING STATE COMMON

LAW, CONCERNING THE HEALTH AS-

PECTS OF CIGARETTE WARNING LABELS

AND THE PROMOTION OR ADVERTISING

ee I

A. The Phrase “State Law” Includes State

Ee a ee

B. The Common Law Of Torts hements “Re-

quirements” And “Prohibitions” _

C. Construing Section 1334 To Exclude Com-

mon Law Claims Would Lead To Absurd

Results "TN apn ren Rin th ap

D. Petitioner’s Maxims Of Statutory Construc-

tion Do Not Justify The Exclusion Of Com-

SED a

THE CIGARETTE LABELING AND AD-

VERTISING ACT IMPLIEDLY PREEMPTS

STATE LAW, INCLUDING STATE COMMON

LAW, CONCERNING THE HEALTH AS-

PECTS OF CIGARETTE WARNING LABELS

AND THE PROMOTION OR ADVERTISING

dg, SRR RE ces Aaraonee aan ee

A. The Labeling And Advertising Act Scie

The Field With Respect To The Health As-

pects Of Cigarette Warning Labels And The

Promotion Or Advertising Of Cigarettes

B. Common Law Tort Claims Are Preempted

Because They Would Conflict With Federal

Law And Would Frustrate The Purposes And

Objectives Of Congress In Enacting The

Labeling And Advertising Act _.

CONCLUSION 0... ipebusiesbutininniaedvacbninatosin secant

15

17

21

22

24

30

II

TABLE OF AUTHORITIES

CASES: Page

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

SUID sietsiunilnsteinsicccisnnise-obittadeensadanasteaid eaten 15

Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571

GURNEE ictinisninistatieniisisiidiinieintctii antes ees 19

Brown V. Hotel Employees, 468 U.S. 491 (1984) .. 15

California Coastal Comm’n v. Granite Rock Co.,

a S.C). | Le aoc aan 26

California Federal Sav. & Loan Ass’n V. Guerra,

SG, _: SON eT 22

Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691

SC IUIITD ccecedetintenaciingctiensidenisatnasii da en 26

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) .. 19

Chicago & N.W. Trans. Co. v. Kalo Brick & Tile

Ce., 450 U.S. 811 (1062) .................................... 13, 17, 19

Chisom Vv. Roemer, No. 90-757 (June 20, 1991). 17

City of Burbank v. Lockheed Air Terminal, 411

ES 5 A es ET 18

De Canas V. Bica, 424 U.S. 351 (1976) 18, 22

Electrical Workers v. Foust, 442 U.S. 42 ( 1979)... 11

English v. General Electric Co., 110 S. Ct. 2270

fn EMO ee TE 6, 20

Erie R. Co. v. Tompkins, 304 U.S. 64 (19388) ........ 8

Farmer v. United Brotherhood of Carpenters, 430

Fk | eer kar al 14, 19

Farmers Educ. & Coop. Union v. WDAY, Inc.,

A! 8) 13, 19

Felder v. Casey, 487 U.S. 131 (1988) sis 18

Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta,

1 lll ee 13, 18, 26

Florida Lime & Avocado Growers, Inc. v. Paul,

ae SS 5 | ee hy 22, 27

Gillespie Vv. United States Steel Corp., 379 U.S. 148

CURIE) covesciccsciceotonpesntismmseeniteadiaesiataianiaiannnannn 19

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

tee 13

Hayfield Northern R. Co. v. Chicago & N.W.

Trans. Co., 467 U.S. 622 (1984) 29

Hines v. Davidowitz, 312 U.S. 52 (1941) 22, 26

Illinois v. City of Milwaukee, 406 U.S. 91 (1972). 8

lll

TABLE OF AUTHORITIES—Continued

Page

Ingersoll-Rand Co. vy. McClendon, 111 S. Ct. 478

SS SSS ee 6, 14, 26

International Longshoremen’s Ass'n V. Davis, 476

SE ES 14

International Paper Co. v. Ouellette, 479 US. 481

aes passim

International Union, UAW vy. Johnson Controls,

can a oe eeee (0008) 14

Jones V. Rath Packing Co., 430 U.S. 519 ( 1977). 25, 26

Kotler v. American Tobacco Co., 926 F.2d 1217

(1st Cir. 1990), petition for cert. pending, No.

90-1473 (filed Mar.19,1991) ss —sSé 21, 25

Local 926, Intern. Union of Oper. Eng. v. Jones,

i 19

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983) . 15

Miles Vv. Apex Marine Corp., othe Ss. Ct. 317

(1990) ............. ES ee 17

Mississippi Power & Light Co. V. Mississippi ex rel.

Moore, 487 U.S. 354 (1988) ss 23

New York Times Co. vy. Sullivan, 376 U.S 254

erect cciccseneniecsine 13

Norfolk & W. R. Co. v. Train Dispatchers, 111

i de)

Northwest Cent. Pipeline v. Kansas Corp. Comm'n n,

489 U.S. 493 (1989) ————- Ff

Offshore Logistics, Inc. vy. Tallentire, 477 U.S. 207

a 17

Pacific Gas & Elec. Co. v. Energy Resources

Comm'n, 461 U.S. 190 (1983) sis 21, 22, 29

Palmer v. Liggett Group, Inc., 825 F.2d 620 (1st

i aa passim

Papas Vv. Upjohn Co., 926 F.2d 1019 (11th Cir.

1991), petition for cert. pending, No. 90-1837

(filed May 29,1991) 23

Pennington v. Vistron Corp., 876 F.2d 414 (5th

a ee 25

Pennsylvania R.R. v. Puritan Coal Mining Co., 237

aS 17

IV

TABLE OF AUTHORITIES—Continued

Perez vy. Campbell, 402 U.S. 637 (1971) 0 —....... 30

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987).. 19

Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).. 28

Rice v. Rehner, 463 U.S. 713 (1983) . 6

Rice v. Santa Fe Elevator Corp., 331 Uz s. “218

ERE eae Cone er ave TO eS ee 22

Roysdon v. R.J. Reynolds Tobacco Co., “49 F.2d

I I I eset > seledeiaiiions 25

San Diego Building Trades Council v. Garmon, 359

ee 12,19

Schneidewind v. ANR Pipeline Co., 485 U.S. 293

GED cccnitsiececerneeeanateniciieniebinacienccismniasintiiiinselaiatitiiamentetns 29

Sheridan v. United States, 487 U.S. 392 (1988)... 15

Silkwood vy. Kerr-McGee Corp., 464 U.S. 238

STII chisests ih Ta ctasehisiesthsietbeietcseisin catiathdblatedceantatih cleat Eins 20, 21

Stephen v. American Brands, Inc., 825 F.2d 312

a stesiiiiemeiiieesainaaans 25

Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204

RE a Rene ae 17

United Savings Ass’n V. Timbers of Inwood For-

— = 5 fae teen 17

Wardair Canada V. Florida Dept. of Revenue, 477

i Ec asercsiesieil Ricicsnctneateiicmendaneiiibet aiebatienabincaal 22

Wisconsin Dept. of Industry Vv. Gould Inc., 475 U.S.

EE Ie: oy es red ae oe Se Le 19

Wisconsin Public Intervenor Vv. Mortier, No. 89-

fe Sel 22

STATUTES:

Atomic Energy Act of 1954, 42 U.S.C. §§ 2011

et seq.:

i 21

STRESS SS a sees ARES ere 21

EEE et eases OTE nn 21

Federal Cigarette Labeling and Advertising Act,

15 U.S.C. §§ 1331-1341:

ae a sb ns Leer mee sa emaieell passim

Vv

TABLE OF AUTHORITIES—Continued

Page

aia cetera saith anes ciabatta aaiaialii 5, 27

TIT tn ns nani estes rnicstamaatadaamannaneenibidiebihainiatiniadl passim

oI Sore aevor ie seen atamreee Ios 7

el 7

5 aR Se ee ees as 20

| Tees 5

MISCELLANEOUS:

BLACK’s LAW DICTIONARY (5th ed. 1979) ............. 9,10

H. Rep. No. 449, 89th Cong., Ist Sess. (1965)... 27

W. Keeton, D. Dobbs, R. Keeton, & D. Owen,

PROSSER AND KEETON ON THE LAW OF ToRTS

RRS eae See 9,10, 11

RESTATEMENT (SECOND) OF ToRTS (1965) ‘aaa 10

S. Rep. No. 195, 89th Cong., Ist Sess. (1965) 27

Weinrib, The Special Morality of Tort Law, 34

McGILL L.J. 403 (1989) .................... RA 11

BRIEF FOR THE PRODUCT LIABILITY

ADVISORY COUNCIL, INC., AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

Pursuant to Rule 37.3 of the Rules of this Court, the

Product Liability Advisory Council, Inc. (“PLAC”), re-

spectfully submits this brief as amicus curiae in support

of respondents. The parties have consented to the filing

of this brief, and their written consents have been filed

with the Clerk of the Court.

PLAC is a non-profit membership association of ap-

proximately 80 major industrial companies.' Formed in

1983, PLAC’s principal purpose is to submit briefs as

amicus curiae in appellate cases involving significant is-

sues affecting the law of product liability. PLAC has par-

ticipated as amicus curiae in numerous cases in this

Court, the federal courts of appeals, and state appellate

courts.

PLAC and its members have a strong interest in the

development of sound legal principles governing proce-

dura! and substantive issues arising in product liability

cases. In particular, PLAC is vitally concerned about the

issue of federal preemption of state tort claims. PLAC

and its members have been involved in numerous product

liability and other cases that present issues of federal

preemption.

Because of PLAC’s substantial interest in the outcome

of this case, and because of its extensive experience in

product liability suits, PLAC is able to provide an addi-

tional and broader perspective on the important issues

presented. PLAC believes that its amicus brief will be of

assistance to the Court in analyzing and resolving these

issues.

INTRODUCTION AND SUMMARY OF ARGUMENT

The question in this case is not whether cigarette man-

ufacturers should be subject to legal obligations relating

—_—_——---+ ———

1A list of PLAC’s members is included in the Appendix to this

brief.

to their communications with the public about the health

dangers of smoking cigarettes. Rather, the sole question

is: who decides what communications are appropriate?

In our view, Congress itself has made that decision in the

Federal Cigarette Labeling and Advertising Act by draft-

ing, monitoring, and revising the required warning label

in order to ensure its adequacy. Furthermore, to provide

national uniformity and protect interstate commerce,

Congress intended the Act to set forth an exclusive warn-

ing regime that displaces state law concerning the health

aspects of cigarette labeling and the promotion or adver-

tising of cigarettes. If our submission is correct, respond-

ents—whose warning labels concededly conform to the

requirements of the Act—have complied fully with federal

law and may not be subject to inconsistent regulation

under state law.

Petitioner and his amici concede that the Labeling and

Advertising Act preempts state statutes and regulations

imposing warning requirements on cigarette packages or

in cigarette advertising. Nevertheless, they assert that

the Act does not displace the state common law of torts

imposing the identical requirements. Under this position,

it would be up to judges and juries in 50 different states

to determine the adequacy of warnings or advertising on

a case-by-base basis, and in doing so they would be en-

tirely free to disregard the federal warning scheme and

to concl.ide that “better” warnings should have been pro-

vided notwithstanding Congress’s determination that the

federally-required warning label is adequate.

Petitioner’s approach cannot be reconciled with the ex-

press statement of purpose and preemption provision in

the Act and, contrary to the system Congress clearly con-

templated, represents a prescription for disuniformity

and onerous burdens on interstate commerce. Whether

analyzed under principles of “express” preemption (be-

cause the Act expressly preempts state law), “occupation

of the field” preemption (because Congress occupied the

field of the health-related aspects of cigarette labeling,

advertising and promotion), or “implied” preemption (be-

3

cause state tort law would frustrate the purposes of the

Act), petitioner’s reading of the federal statute cannot

stand.

Moreover, petitioner’s submission that the Labeling and

Advertising Act does not preempt state tort law is predi-

cated on several erroneous propositions that are of sub-

stantial importance in preemption cases generally.

First, petitioner contends that the term “State law”

does not include state common law. This counterintuitive

contention is belied both by the plain meaning of the

words used and by the precedents of this Court.

Second, petitioner argues that state tort law does not

“require” defendants to observe a state-imposed standard

of conduct because they can “choose” to engage in tortious

activity so long as they are willing to pay the resulting

damages awards. This argument ignores hornbook law

on the “duties” imposed under state tort law, incorrectly

assumes that tort law is indifferent to the repeated and

intentional commission of torts, and is flatly inconsistent

with the numerous decisions of this Court holding that

state tort damages are regulatory in nature and thus are

preempted if they are at odds with a federal statutory

scheme.

Third, petitioner urges that preemption is inappropri-

ate if Congress does not provide an alternative remedy in

lieu of the traditional state law that is displaced. But

Congress on many occasions has preempted a state-law

remedy without enacting a federal substitute. In addi-

tion, the premise of petitioner’s argument is incorrect,

because the Labeling and Advertising Act does contain

effective alternative remedies.

Finally, petitioner asserts that state tort claims would

promote the objectives of the federal statute by providing

more information to the public about the relationship be-

tween smoking and health. Congress’s purpose, however,

was to inform the public while at the same time protect-

ing the national economy against diverse and burdensome

4

warning requirements, and state tort law would plainly

conflict with the latter objective. In any event, it is no

answer to preemption “to say that the ultimate goal of

both federal and state law is” the same, for “state law

also is preempted if it interferes with the methods by

which the federal statute was designed to reach th{at]

goal.” International Paper Co. v. Ouellette, 479 U.S. 481,

494 (1987). Here, there can be no doubt that Congress

determined that the best way to achieve its goal was by

requiring a simple, uniform, nationwide warning on

every cigarette package and by prohibiting the states

from regulating any health-related aspect of cigarette

advertising or promotion.

In the end, all of petitioner’s linguistic hide-and-seek

games—pretending that “common law” is not law, that

duties imposed by state tort law involve no “require-

ments,” that additions to the federal warning made in

response to tort liabilities should be deemed “voluntary”

—are simply props for an artificial analytical frame-

work, under which state tort law cannot be preempted

unless Congress uses magic words such as “common law”

or “tort liability.” This Court has never accepted that

approach in ruling on a preemption claim. Petitioner and

his amici simply cannot explain why Congress would have

wanted to preempt state statutes and regulations that

impose different or additional requirements on cigarette

labeling, advertising or promotion, yet would have cheer-

fully agreed to the spectacle of judges and juries across

the country imposing the very same requirements in the

guise of adjudicating common !aw claims.

ARGUMENT

After extended consideration, Congress determined that

the best way to inform the public about the “relationship

between smoking and health” while protecting “commerce

and the national economy” from “diverse, nonuniform,

and confusing cigarette labeling and advertising regula-

tions” was to “establish a comprehensive Federal Pro-

gram to deal with cigarette labeling and advertising.” 15

5

U.S.C. § 1331. To effectuate those goals, Congress itself

prescribed the precise words of warning to be placed on

each package of cigarettes (15 U.S.C. § 1333) and re

quired the Federal Trade Commission and the Secretary

of Health and Human Services to report to it annually

about cigarette promotion and advertising practices and

current information on the health consequences of smok-

ing and to make recommendations for legislation. 15

U.S.C. § 1337. Finally, Congress enacted an express pre-

emption provision prohibiting the states from requiring

any other statement “relating to smoking and health * * *

on any cigarette package” or imposing any “requirement

or prohibition based on smoking and health” with respect

to the “advertising or promotion of any cigarettes” whose

packages are labeled in conformity with the federal

statute. 15 U.S.C. § 1334.

Despite the comprehensiveness of this federal program,

the clarity of Congress’s purpose to reserve to the federal

government the regulation of “cigarette labeling and ad-

vertising with respect to any relationship between smok-

ing and health” (15 U.S.C. § 1331), and the presence of

a broadly-worded preemption provision, petitioner asserts

that Congress did not intend to foreclose claims under

state tort law that the labeling or advertising of cigarettes

misinformed consumers about the dangers of smoking. In

petitioner’s view, Congress’s meticulously calibrated judg-

ment as to the health warning that cigarette manufac-

turers should be required to give must be respected by

state legislatures and administrative agencies but may

be freely disregarded by state courts and juries enforcing

duties derived from amorphous and divergent common

law standards of “adequacy.” This approach would au-

thorize the states to impose sanctions on manufacturers

by finding that the warning Congress expressly deter-

mined to be adequate is in fact inadequate as a matter

of state law. Such assaults on the integrity of the ‘‘com-

prehensive Federal Program” created by Congress are

incompatible with the words of the Labeling and Ad-

vertising Act and would deeply subvert its purposes.

6

Petitioner defends this bizarre result by presenting an

analytical structure (Pet. Br. 14-16) that rests on a rigid

and artificial compartmentalization of the various types

of preemption. As respondents demonstrate, however, the

Court’s familiar three-part preemption formulation was

never intended to be applied in so wooden or literal a

manner. See English v. General Electric Co., 110 S. Ct.

2270, 2275 n.5 (1990) (“[bly referring to these three

categories, we should not be taken to mean that they are

rigidly distinct’). Rather, the question here turns solely

on the purposes of Congress, to be resolved through the

normal tools of statutory construction. See I/ngersoll-

Rand Co. v. McClendon, 111 S. Ct. 478, 482 (1990);

Rice v. Rehner, 463 U.S. 713, 718 (1983). We submit

that the language, structure and purpose of the Labeling

and Advertising Act leave no doubt that petitioner’s

warning and advertising claims are preempted. Whether

viewed as a question of “express preemption,” “conflict

preemption,” or “occupation of the field,” the conclusion

is inescapable that federal law cannot coexist with state

tort claims challenging health-related aspects of the label-

ing, advertising or promotion of cigarettes.

I. THE CIGARETTE LABELING AND ADVERTISING

ACT EXPRESSLY PREEMPTS STATE LAW, IN-

CLUDING STATE COMMON LAW, CONCERNING

THE HEALTH ASPECTS OF CIGARETTE WARN-

ING LABELS AND THE PROMOTION OR ADVER-

TISING OF CIGARETTES

On its face, the Cigarette Labeling and Advertising

Act contains a broad and unqualified preemption provi-

sion:

(a) No statement relating to smoking and health,

other than the statement required by section 1333 of

this title, shall be required on any cigarette package.

(b) No requirement or prohibition based on smoking

and health shall be imposed under State law with re-

spect to the advertising or promotion of any ciga-

rettes the packages of which are labeled in conform-

ity with the provisions of this chapter.

7

15 U.S.C. § 1334. In light of this statutory language,

petitioner concedes, as he must, that the Act expressly

“prohibits states from regulating cigarette packaging,

and cigarette advertising.” Pet. 4. Nevertheless, peti-

tioner asserts that there is no express preemption in this

ease because Section 1334 does not explicity refer to state

common law tort claims. This literalistic approach mis-

apprehends the nature of express preemption.

A. The Phrase “State Law” Includes State Common

Law.

Section 1334(a) and (b) as originally enacted in 1965,

and Section 1334(a) as retained in 1969, are expansive

in scope and contain no limitation on the type of law

that is subject to preemption. Thus, in singularly sweep-

ing and unambiguous language, they provide that “[n]o

statement relating to smoking and health’—whether un-

der federal, state, or local law, and whether statutory,

administrative, or common law in nature—may be im-

posed in addition to the federally required warning.

Section 1334(b) as amended in 1969 leaves no more

room to carve out an exception for state common law.

By its terms, this preemption provision encompasses any

requirement or prohibition based on smoking and health

“under State law” with respect to the advertising or pro-

motion of cigarettes. Although petitioner offers the half-

hearted argument (Br. 24) that state common law is not

really “State law,” this Court’s cases foreclose that con-

tention. As the Court recently explained in holding that

the Interstate Commerce Act’s reference to “all other

law, including State and municipal law,” includes state

common law:

As always, we begin with the language of the

statute * * *. [The phrase] “all other law, including

State and municipal law,” is clear, broad, and un-

qualified. It does not admit of the distinction the

Court of Appeals drew * * * between positive enact-

ments and common-law rules of liability.

8

Norfolk & W. R. Co. v. Train Dispatchers, 111 S. Ct.

1156, 1163 (1991). See also, e.g., Illinois v. City of

Milwaukee, 406 U.S. 91, 100 (1972) (“[wle see no rea-

son not to give ‘laws’ its natural meaning * * *, and

therefore conclude that * * * [it embraces] claims

founded upon * * * common law as well as those of stat-

utory origin”); Erie R. Co. v. Tompkins, 304 U.S. 64,

71, 79 (1938) (citation omitted) (law includes “the un-

written law of the State as declared by its highest court

* * * ‘(T]he authority and only authority is the State

* * * whether it be of its Legislature or of its Supreme

Court’ ”’).

‘Of course, as petitioner points out (Br. 18), Section

1334 does not refer in haec verba to state common law.

But neither does it refer to state statutes or regulations,

both of which petitioner admits are expressly preempted.

In either event, it is simply a question of statutory con-

struction to determine the meaning of Congress’s enact-

ment. If, as plainly is the case, state common law is

subsumed within the generic term “State law,” it is sub-

ject to the express preemption provision in Section 1334.°

B. The Common Law Of Torts Imposes “Requirements”

And “Prohibitions.”

Since ‘State law” unquestionably includes state com-

mon law, petitioner resorts to the term “required” or “re-

2 Although petitioner does not seriously contend that the term

“State law” in the Labeling and Advertising Act does not encompass

state common law, several of his amici attempt to develop the argu-

ment. According to this view, all judicial action grounded in state

common law—apparently including injunctive relief—is outside the

preemptive scope of the Act. See Am. Br. of National League of

Cities, et al., at 15, 18 n.10; Am. Br. of American Cancer Society,

et al., at 12 n.2, 25 n.9. For the reasons outlined above, nothing in

the text of the Act suggests in any way that Section 1334 is con-

fined to state statutes and regulations or that Congress intended

sub silentio to enact a broad loophole for state common law in the

otherwise all-inclusive phrase “State law.” Indeed, it is difficult to

take seriously the idea inherent in amici’s argument that a manda-

tory injunction under state common law, enjoining the defendant to

provide warnings in the future different from or in addition to

those prescribed in the federal statute, would not be preempted.

9

quirement” in Section 1334. In his view, the state common

law of torts does not “require” defendants to conform

their conduct to state-created and state-enforced stand-

ards because, in contrast to statutes and regulations, it

does not contain “(t]he element of compulsion.”

{C]ommon law product liability lawsuits do not com-

pel specific behavior. Such lawsuits operate primar-

ily to compensate injured individuals; they do not

regulate. * * * Damage awards in product liability

suits do not compel any behavior other than the pay-

ment of money damages. Cigarette manufacturers

are free to build these damage awards into the price

of their product and do nothing else or, alternatively,

they may with unconstrained choice attempt to reduce

the likelihood of future adverse verdicts.

Pet. Br. 19, 20-21 (citations omitted); see also id. at

40-42. This argument is ridiculous, bears little relation

to reality, and cannot be squared with either general

legal principles or the settled decisions of this Court.*

It is elementary learning that tort liability may be im-

posed only if the defendant has violated a duty owed to

the plaintiff. Indeed, the very authority cited by peti-

tioner (Br. 20) makes clear that “torts consist of the

breach of duties fixed and imposed upon the parties by

the law itself.” W. Keeton, D. Dobbs, R. Keeton, & D.

Owen, PROSSER AND KEETON ON THE LAW OF TorTS 4

(5th ed. 1984) (emphasis added). See also, e.g., BLACK’S

LAW DICTIONARY 1335 (5th ed. 1979) (“Tort” is de-

fined to be “[a] violation of a duty imposed by general

law * * *. There must always be a violation of some

duty owing to plaintiff’).

’ Insofar as petitioner’s argument is premised on the notion that

defendants can “continue with business as usual * * * and build

the damages into the cost of the product” (Br. 42), it apparently

would not distinguish tort damages from civil monetary penalties or

criminal fines (which, at least as to corporate defendants, constitute

the applicable criminal sanction). Yet petitioner concedes that stat-

utes or regulations imposing warning requirements and containing

purely monetary penalties would be preempted by Section 1334.

10

Thus, contrary to the crux of petitioner’s position, a

duty imposed under the state common law of torts in-

herently embodies the notion of requirement or obliga-

tion. Tort law sets “the conduct required of the actor by

society for the protection of others.” PROSSER AND KEE-

TON at 22 (emphasis added). See also, e.g., RESTATE-

MENT (SECOND) OF TorTS § 4 (1965) (emphasis added)

(“[t]he word ‘duty’ * * * denote[s] the fact that the

actor is required to conduct himself in a particular man-

ner at the risk that if he does not do so he becomes sub-

ject to liability”); BLACcK’s LAW DICTIONARY at 453

(emphasis added) (in tort cases the “term [‘duty’] may

be defined as obligation, to which law will give recogni-

tion and effect, to conform to a particular standard of

conduct toward another’). Accordingly, a court or jury

deciding a state tort case cannot rule in favor of the

plaintiff without finding that the defendant violated a

requirement of state law—for example, in a failure-to-

warn case, a state common-law duty to provide a warn-

ing different from or in addition to that prescribed by

Congress in the Labeling and Advertising Act. State law

both imposes the requirement and enforces it through a

judgment against the defendant.

Moreover, the law is not, as petitioner would have it,

indifferent to defendants’ continued tortious conduct and

does not afford them an “unconstrained choice” (Pet.

Br. 20) between conforming to their legal duty or paying

damages. By definition, a tort is “[a] private or civil

wrong’ (BLACK’s LAW DICTIONARY at 1335) that the

law seeks to discourage, and the payment of compensa-

tory damages does not change the wrongful nature of the

tortious conduct or legitimize its occurrence.

[When * * * [one] act[s] negligently or inflict|s]

an intentional harm, he or she wrongs the sufferer.

The payments exacted by tort law are not taxes or

licensing fees for acts that are permitted on condi-

tion that the defendants pay for damage thereby

caused. A tort is an act that wrongs the victim. The

defendant owes the plaintiff a duty, operative at the

moment of action, to abstain from committing such

11

an act. The obligation to compensate is the juridical

reflex of an antecedent obligation not to wrong.

Weinrib, The Special Morality of Tort Law, 34 McGILL

L.J. 403, 409 (1989). The condemnatory force of tort

law is made clear by the doctrine of punitive damages,

which are designed to punish and deter reprehensible con-

duct. See, e.g., Electrical Workers v. Foust, 442 U.S. 42,

48 (1979). A defendant that followed petitioner’s advice

—and thus chose to continue, intentionally and repeat-

edly, to engage in tortious conduct—would quickly (and

justifiably) find itself subjected to ever-increasing puni-

tive damages awards.

Consistent with these accepted precepts, it is a well-

recognized purpose of tort law to regulate conduct to

conform to state-established legal standards. One lead-

ing commentary has summarized the regulatory effect of

tort law in the following way:

The “phophylactic” factor of preventing future

harm has been quite important in the field of torts.

The courts are concerned not only with compensation

of the victim, but with admonition of the wrongdoer.

When the decisions of the courts become known, and

defendants realize that they may be held liable, there

is of course a strong incentive to prevent the occur-

rence of the harm.

PROSSER AND KEETON at 25. Thus, as the First Circuit

aptly stated in rejecting the identical argument that de-

fendants have a “free choice” to comply with tort law or

pay repeated damages awards, the verdict “effectively

compels the manufacturer to alter its warning to conform

to different state law requirements as ‘promulgated’ by a

jury’s findings.”

[Plaintiffs] disingenuously maintain that any mone-

tary damages awarded would not compel a manu-

facturer to change its label for, after all, “the choice

of how to react is left to the manufacturer.” This

“choice of reaction” seems akin to the free choice of

coming up for air after being underwater. Once a

jury has found a label inadequate under state law,

12

and the manufacturer liable for damages for negli-

gently employing it, it is unthinkable that any manu-

facturer would not immediately take steps to mini-

mize its exposure to continued liability.

Palmer v. Liggett Group, Inc., 825 F.2d 620, 627-628

(1st Cir. 1987). Indeed, several of petitioner’s amici

unabashedly concede that state tort law imposes legal

duties that affect defendants’ conduct, and they trumpet

that result as the reason why petitioner’s common law

claims should be allowed.*

It therefore is not surprising that this Court consist-

ently has held that state tort damages are regulatory in

effect and require defendants to conform their behavior

to state tort law. The seminal case in this area is San

Diego Building Trades Council v. Garmon, 359 U.S. 236

(1959), which held that an award of damages in a state

tort action was preempted by federal labor law. Focusing

“on the nature of the activities which the States have

sought to regulate, rather than on the method of regula-

tion adopted” (id. at 243), the Court explained (id. at

246-247 (emphasis added) ) :

Nor is it significant that California asserted its

power to give damages rather than to enjoin what

the [National Labor Relations] Board may restrain

though it could not compensate. Our concern is with

delimiting areas of conduct which must be free from

state regulation if national policy is to be left un-

hampered. Such regulation can be as effectively

exerted through an award of damages as through

some form of preventive relief. The obligation to

pay compensation can be, indeed is designed to be, a

potent method of governing conduct and controlling

policy. Even the States’ salutary effort to redress

private wrongs or grant compensation for past harm

4See Am. Br. of Minnesota, et al., at 1, 4; Am. Br. of National

League of Cities, et al., at 25, 26; Am. Br. of Surgeons General,

et al., at 3: Am. Br. of Trial Lawyers for Public Justice, at 13, 15;

Am. Br. of American Medical Association, at 9; Am. Br. of Ameri-

can Cancer Society, et al., at 16.

13

cannot be exerted to regulate activities that are po-

a subject to the exclusive federal regulatory

scheme.

This Court has never deviated from the Garmon prin-

ciple, holding time and again that state common-law dam-

ages actions have a regulatory effect and are preempted

if they are at variance with the federal scheme. See, e.v.,

Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S.

141 (1982); Chicago & N.W. Trans. Co. v. Kalo Brick

& Tile Co., 450 U.S. 311 (1981); Farmers Educ. &

Coop. Union v. WDAY, Inc., 360 U.S. 525 (1959); see

also New York Times Co. v. Sullivan, 376 U.S. 254, 277-

278 (1964) (holding that common law claims are “ ‘a

form of regulation’” and that “fear of damage awards”

may be “markedly more inhibiting than the fear of prose-

cution”). As the Court has correctly understood, “[a]

system under which each State could, through its courts,

impose * * * its own version of reasonable * * * require-

ments could hardly be more at odds with the uniformity

contemplated by Congress.” Kalo Brick, 450 U.S. at 326.°

The Court recently has reaffirmed the Garmon analysis.

For example, International Paper Co. v. Ouellette, 479

U.S. 481, 495, 498-499 n.19 (1987)—a case petitioner

virtually ignores—squarely rejected the contention that

“compensatory damages only require the [defendants] to

pay * * * and thus do not ‘regulate’.” As the Court stated

(emphasis added) :

(If the preempted state remedies were available], at

a minimum IPC would have to change its methods of

doing business and controlling pollution to avoid the

threat of ongoing liability. * * * The inevitable re-

sult of such suits would be that Vermont and other

® Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988), is fully

consistent with this position. The Court acknowledged in Goodyear

that the occasional state workers’ compensation award would exert

“incidental regulatory pressure” (id. at 186) on a federally-owned

nuclear production facility, but it concluded that Congress had de-

termined that such incidental regulatory effects were “acceptable” —

i.e., were not in variance with the federal scheme. /bid. See also

id. at 186 n.8.

14

States could do indirectly what they could not do

directly—regulate the conduct of out-of-state sources.

*Although t]he District Court concluded that the in-

terference with the Act is insignificant, in part be-

cause respondents are seeking to be compensated for

a specific harm rather than trying to “regulate”

** * [.] [wle decline * * * to draw a line between

the types of relief sought.* * * 7f the Vermont court

determined that respondents were entitled only to the

requested compensatory relief, IPC might be com-

pelled to adopt different or additional means of pol-

lution control from those required by the Act, regard-

less of whether the purpose of the relief was compen-

satory or regulatory. * * * [This result would be

irreconcilable with the [Clean Water Act’s] exclu-

sive grant of authority to the Federal Govern-

ment * * *.

Similarly, in Ingersoll-Rand Co. v. McClendon, supra, the

Court observed that “i]t is foreseeable that state courts,

exercising their common law powers, might develop dif-

ferent substantive standards” from federal law, thus “re-

quiring the tailoring of * * * [defendants’] conduct to

the peculiarities of the law of each jurisdiction. Such an

outcome is fundamentally at odds with the goal of uni-

formity that Congress sought to implement.” 111 S. Ct.

at 484. See also International Union, UAW v. Johnson

Controls, 111 S. Ct. 1196, 1209 (1991) (referring to “tort

liability” as a state “requirement|]” that is subject to

preemption ).°

® Petitioner’s efforts to distinguish Garmon (Br. 21-22 & n.23)

cannot withstand analysis. Petitioner asserts that Germon has no

precedential effect outside the area of the National Labor Relations

Act, but the Court has relied upon Garmon in many non-NLRA

cases. Petitioner is equally wrong that Garmon is no longer good

law. See International Longshoremen’'s Ass'n V. Davis, 476 U.S. 380,

381 (1986); Farmer v. Carpenters, 430 U.S. 290, 997 (1977).

Finally, the cases cited by petitioner represent only one branch of

the Garmon doctrine, which applies if the activity in question is

“a merely peripheral concern” of federal law or touches “deeply

rooted” local interests; this doctrine “involves protecting the pri-

15

C. Construing Section 1334 To Exclude Common Law

Claims Would Lead To Absurd Results.

Petitioner’s interpretation, by engrafting an exception

onto Section 1334 for state common law, would render

the statutory scheme inherently incongruous and would

produce highly anomalous consequences. Needless to say,

“courts should strive to avoid attributing absurd designs

to Congress, particularly when the language of the statute

and its legislative history provide little support for the

proffered, counterintuitive reading.” Sheridan v. United

States, 487 U.S. 392, 402 n.7 (1988). See also Metropoli-—

tan Edison Co. Vv. People Against Nuclear Energy, 460

U.S. 766, 776 (1983) (“‘|wle cannot attribute to Con-

gress the intention to * * * open the door to such obvious

incongruities and undesirable possibilities’”) (citation

omitted).

It is irrational to attribute to Congress, as petitioner

does, the intent to vest in lay juries—while denying to

democratically elected state legislatures and expert state

administrative agencies—the power to review the ade-

quacy of disclosures made pursuant to the federally-pre-

scribed warning or cigarette advertising and, if they are

found wanting, to determine for themselves on a case-

by-case basis what different or additional disclosures are

necessary. The First Circuit correctly understood that

mary jurisdiction of the NLRB, and requires a balancing of state

and federal interests.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202,

214 n.9 (1985). The other branch of Garmon, and the one relevant

here, reflects “‘federal protection of the conduct in question.’”

Farmer, 430 U.S. at 295 n.5. Despite this Court’s admonition that

“‘eare must be taken to distinguish’” the two concepts (ibid.),

petitioner “confuses preemption which is based on actual federal

protection of the conduct at issue from that which is based on the

primary jurisdiction of the [NLRB].” Brown v. Hotel Employees,

468 U.S. 491, 502 (1984). Where a substantive federal rule is at

issue, as it is here, “the balancing of state and federal interests

* * * is irrelevant, since Congress, acting within its power under

the Commerce Clause, has provided that federal law must prevail”

(Allis-Chalmers, 471 U.S. at 214 n.9); in that situation “‘{t]he

relative importance to the State of its own law is not material.’”

Brown, 468 U.S. at 503 (citation omitted).

16

“li]t is inconceivable that Congress intended to have [its]

carefully wrought balance of national interests superseded

by the views of a single state, indeed, perhaps of a single

jury in a single state. * * * [Plaintiff’s argument] arro-

gates to a single jury the regulatory power explicitly de-

nied to all fifty states’ legislative bodies.” Palmer, 825

F.2d at 626, 628.

In fact, state tort actions would be a particularly un-

desirable and uncertain form of regulation: it is difficult

to ascertain exactly what common-law duty is embodied in

a general jury verdict, especially given the “often * * *

‘vague’ and ‘indeterminate’ * * * standards” (Ouellette,

479 U.S. at 496) that juries apply under state common

law. Ironically, petitioner and his amici extol the very

inscrutability of jury verdicts as a virtue rather than a

vice, but their efforts cannot obscure this fatal defect

in their position. See Pet. Br. 41-42; Am. Br. of Trial

Lawyers for Public Justice, at 13. Without question,

manufacturers confronted with damages awards based on

the claim that their warnings or advertising misinformed

the public would attempt to alter their practices in an

effort to deal with the problem.

Petitioner’s reading of Section 1334 would lead to other

anomalies as well. Under his view, for instance, a $100

fine for failure to provide a warning required by state

statute would be preempted, but a $1 million damages

award for failure to warn pursuant to state common law

would not be. And a state court would be entirely free

to establish such additional warnings in adjudicating a

tort claim, but the state legislature would be barred from

incorporating—or revising—those warning requirements

in legislation. Petitioner’s narrow and unnatural read-

ing of the express preemption provision spawns, and offers

no solution to, these peculiar and unimagined results.’

7 Petitioner's approach also forces him to distinguish between

judicially awarded injunctions (which he concedes are preempted)

and judicially imposed damages (which he contends are not). See

Pet. Br. 19-20. This Court, however, has “decline[d| * * * to draw

a line [for preemption purposes} between the types of relief sought,”

17

Construing Section 1334 to include state common law,

by contrast, avoids such absurd consequences by recogniz-

ing what petitioner and his amici blindly refuse to ac-

knowledge—that tort actions impose legal requirements

or prohibitions just as much as state statutes and regula-

tions and are preempted when they are incompatible with

a federal statutory scheme. That principle provides a

compelling refutation of petitioner’s argument and serves

as the background against which Congress enacted the

preemption provision in the Labeling and Advertising

Act. See, ey., Miles v. Apex Marine Corp., 111 S. Ct.

317, 325 (1990) (“|wle assume that Congress is aware of

existing law when it passes legislation”). If Congress had

intended to depart from that well-settled principle, it

surely would have said so. See Chisom v. Roemer, No.

90-757 (June 20, 1991), slip op. 14; United Savings Ass’n

v. Timbers of Inwood Forest, 484 U.S. 365, 380 (1988) .*

D. Petitioner’s Maxims Of Statutory Construction Do

Not Justify The Exclusion Of Common Law Claims.

In the face of this compelling showing that the Labeling

and Advertising Act expressly preempts state common

law tort claims, petitioner advances three grounds to sup-

port a contrary conclusion. First, petitioner relies on

a “presumption against preemption,” asserting that a

“(cjongressional intent to override this presumption must

specifically concluding that preemption principles do not distinguish

between “injunctive relief” and “compensatory damages.” Ouellette,

479 U.S. at 498 n.19. See also Kalo Brick, 450 U.S. at 317-318 (cita-

tion omitted) (preemption focuses on “ ‘the nature of the activities

which the States have sought to regulate, rather than on the method

of regulation adopted’ ”’).

* Petitioner’s position also conspicuously ignores Congress’s omis-

sion from the Labeling and Advertising Act of any savings clause

preserving state common law remedies. Of course, even the presence

of a savings clause would not preserve tort remedies that are in-

consistent with the Act. See, e.g., Ouellette, 479 U.S. at 492-493;

Offshore Logistics, Inc. Vv. Tallentire, 477 U.S. 207, 230 (1986):

Kalo Brick, 450 U.S. at 328, 330; Pennsylvania R.R. v. Puritan Coal

Mining Co., 237 U.S. 121, 129 (1915); Texas & Pac. Ry. vy. Abilene

Cotton Oil Co., 204 U.S. 426, 446 (1907).

18

be expressed with drastic clarity.” Pet. Br. 13, 18. What-

ever validity this “presumption” may have in other con-

texts, where Congress’s intent to displace state law in

a given area remains insolubly ambiguous after a court

has employed the usual tools of statutory construction, it

is plainly inapplicable here. Congress has enacted a broad

express preemption provision that unquestionably reflects

its intent to prohibit state regulation of cigarette warn-

ings and advertising—matters covered by a “comprehen-

sive Federal Program” (15 U.S.C. § 1331).

Petitioner also contends (Br. 18, 23) that preemption

is especially disfavored in areas of “traditional ‘police

regulation,’” such as protection of the public health. It

is well settled, however, that “‘[{t]he relative importance

to the State of its own law is not material when there

is a conflict with a valid federal law, for the Framers of

our Constitution provided that the federal law must pre-

vail.’” de la Cuesta, 458 U.S. at 153 (citation omitted).

See also Felder v. Casey, 487 U.S. 131, 138 (1988); De

Canas Vv. Bica, 424 U.S. 351, 357 (1976) (“even state

regulation designed to protect vital state interests must

give way to paramount federal legislation”) ; City of Bur-

bank v. Lockheed Air Terminal, 411 U.S. 624, 638 (1973)

(finding preemption of authority “deep-seated in the po-

lice power of the States’). It is undisputed that the

Labeling and Advertising Act preempts state statutes and

regulations that are designed, through the imposition of

requirements related to the labeling, advertising or pro-

motion of cigarettes, to protect the public health; peti-

tioner has offered absolutely no reason why state com-

mon law requirements should be regarded as sacrosanct

and given a preferred place in the hierarchy of federal-

ism values.

Finally, petitioner argues (Br. 22 n.23) that common

law claims may be preempted only where Congress has

provided an “alternative remedy” and that the Labeling

and Advertising Act supplies no such remedy. Both of

these propositions are incorrect.

19

To begin with, this Court often has found preemption

“even when the state action purported to authorize a rem-

edy unavailable under the federal provision.” Pilot Life

Ins. Co. V. Dedeaux, 481 U.S. 41, 55 (1987). In Caterpillar

Inc. Vv. Williams, 482 U.S. 386, 391 n.4 (1987), for ex-

ample, the Court overturned a court of appeals’ decision

rejecting preemption “unless the federal cause of action

relied upon provides the plaintiff with a remedy”; in so

ruling the Court emphasized that federal law is preemp-

tive despite the fact that “the relief sought by the plain-

tiff could be obtained only” under state law. This prin-

ciple has been consistently followed. See, e.g., Wisconsin

Dept. of Industry v. Gould Inc., 475 U.S. 282, 287, 289

(1986); Operating Engineers v. Jones, 460 U.S. 669,

684 (1983); Kalo Brick, 450 U.S. at 322-323; Farmer v.

Carpenters, 430 U.S. 290, 298-299, 304 (1977); WDAY,

360 U.S. at 535. At least since Garmon, the law has been

settled that “[e]ven the States’ salutary effort to redress

private wrongs or grant compensation for past harm”

cannot justify state intrusion into a federal regulatory

system notwithstanding that “the state remedy ha[s] no

federal counterpart.” 359 U.S. at 247. See also Arkansas

Louisiana Gas Co. Vv. Hall, 453 U.S. 571, 584 (1981) (“a

finding that federal law provides a shield for the chal-

lenged conduct will almost always leave the state-law vio-

lation unredressed’’); Gillespie v. United States Steel

Corp., 379 U.S. 148, 154-155 (1964) (Jones Act preempts

state law even though plaintiff had no cause of action

under the Act).

In any event, petitioner’s argument is misguided even

on its own terms, because the Labeling and Advertising

Act in fact contains effective alternative remedies. First,

it provides a preventive remedy in the form of a manda-

tory warning—a warning that Congress itself drafted

and determined to be adequate to protect the public health.

If a court in a traditional failure-to-warn case enjoined

the defendant to furnish a particular warning, it could

hardly be said that there had been no relief. The federal

statute legislatively affords the same remedy. Second, the

20

Act expressly preserves the authority of the Federal Trade

Commission “with respect to unfair or deceptive acts or

practices in the advertising of cigarettes.” 15 U.S.C.

§ 1336. Congress fully expected that advertising or pro-

motion that might undermine the effectiveness of the man-

dated warning would be monitored and prohibited at the

national level.

At the end of the day, petitioner fails to provide any

answer to the dispositive question: Why would Congress

have painstakingly drafted a warning label that it con-

sidered to be adequate, required every cigarette manu-

facturer (on pain of civil and criminal penalties) to

place that warning, and only that warning, on every

package of cigarettes, and expressly preempted state stat-

utes and ‘regulations relating to the labeling, advertising

and promotion of cigarettes in order to achieve uniform-

ity in interstate commerce, and at the same time allowed

state juries to reject the adequacy of the federal warning

and create a regime of disuniformity by imposing diverse

advertising requirements? Put another way, if Congress

had intended to permit state law to supplement the in-

formation that cigarette manufacturers must provide to

consumers, why would it have disabled state legislatures

and administrative agencies from playing that role and

allowed only state juries—rendering inscrutable verdicts

in individual cases (see Pet. Br. 41-42)—tto decide

whether more or different information should have been

given? The intrinsic incoherence of such a scheme is a

convincing rebuttal to petitioner’s argument. Both the

language and purpose of the Labeling and Advertising

Act, and settled principles of preemption, compel the con-

clusion that the Act expressly preempts state common-

law torts.°

® This Court’s decision in Silkwood does not warrant a different

conclusion. As the opinion makes clear (464 U.S. at 249-256), and

as the Court subsequently has explained, “the decision in Silkwood

was based in substantial part on legislative history suggesting that

Congress did not intend to include in the pre-empted field state tort

remedies for radiation-based injuries.” English, 110 S, Ct. at 2279.

21

II. THE CIGARETTE LABELING AND ADVERTISING

ACT IMPLIEDLY PREEMPTS STATE LAW, IN-

CLUDING STATE COMMON LAW, CONCERNING

THE HEALTH ASPECTS OF CIGARETTE WARN-

ING LABELS AND THE PROMOTION OR ADVER-

TISING OF CIGARETTES

For the reasons given in Part I, it is unnecessary to

look beyond the explicit language of 15 U.S.C. § 1334 to

conclude that petitioner’s state law tort claims, predicated

on the inadequacy of the federally-mandated warning and

alleged defects in respondents’ advertising, are preempted

by the Labeling and Advertising Act. Even in the absence

of express preemptive language, however, ‘Congress’ in-

tent to supersede state law in a given area may nonethe-

less be implicit if a scheme of federal regulation is ‘so

pervasive as to make reasonable the inference that Con-

gress left no room for the States to supplement it,’” if

Although acknowledging the “tension” between state damages ac-

tions and exclusive federal regulatory authority (464 U.S. at 256),

the Court in Silkwood nevertheless held that there was no preemp-

tion because it found that “Congress intended * * * to tolerate

[such] tension” (ibid.). In particular, the Court read the Price-

Anderson Act—which established an indemnification scheme for

nuclear operators held liable under state tort law—to constitute

affirmative evidence of Congress’s acceptance of state tort actions

(id. at 251-256). Furthermore, the Atomic Energy Act of 1954

contains no preemption provision (see Pacific Gas & Elec. Co. V.

Energy Resources Comm'n, 461 U.S. 190, 205 (1983)) and in fact

explicitly preserves significant authority for the states (e.g., 42

U.S.C. §§ 2018, 2021(b), 2021(k)). See Kotler v. American Tobacco

Co., 926 F.2d 1217, 1223 (1st Cir. 1990), petition for cert. pending,

No. 90-1473 (filed Mar. 19, 1991).

Finally, the sole question in Silkwood was whether federal law

preempted state punitive damages awards. It was common ground

among the Justices that Congress intended to permit state tort

claims for compensatory damages. Thus, Silkwood involved the

availability of a particular remedy, not the question whether a state

tort action was foreclosed by federal law. See Palmer, 825 F.2d at

628. Unlike the Atomic Energy Act as construed in Silkwood, the

Labeling and Advertising Act contains no comparable indication of

congressional intent to “tolerate [the] tension” (464 U.S. at 256)

between federal and state law and unquestionably was designed to

preempt state law in the area of health and smoking.

22

“‘eompliance with both federal and state regulations is a

physical impossibility,” or if “state law ‘stands as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.’” Wisconsin Public

Intervenor v. Mortier, No. 89-1905 (June 21, 1991), slip

op. 5, 6 (quoting Rice v. Santa Fe Elevator Corp., 331

U.S. 218, 230 (1947); Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132, 142-143 (1963); and Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)). Petitioner’s tort

claims are preempted on these grounds as well.

A. The Labeling And Advertising Act Occupies The

Field With Respect To The Health Aspects Of

Cigarette Warning Labels And The Promotion Or

Advertising Of Cigarettes.

The principal defect in petitioner’s discussion of “occu-

pation of the field” preemption is his faulty definition of

the “field” at issue. As this Court has explained, “ ‘we

must know the boundaries of th[e] field before we can

say that [Congress] has precluded a state from the exer-

cise of any power.’” De Canas, 424 U.S. at 360 n.8

(citation omitted). Preemption occurs for the “specific

field” (Wardair Canada v. Florida Dept. of Revenue, 477

U.S. 1, 6 (1986)) or “particular area” (California Fed-

eral Sav. & Loan Ass’n Vv. Guerra, 479 U.S. 272, 281

(1987)) that Congress has occupied. See also, e.g., De

Canas, 424 U.S. at 357 n.5; Pacific Gas & Electric, 461

U.S. at 224 (Blackmun, J., concurring). The determina-

tion of the “ ‘boundaries’” of that field is a matter of

statutory construction, and the Court “‘look[s] to the

federal statute itself, read in the light of its constitu-

tional setting and its legislative history.’” De Canas,

424 U.S. at 360 n.8 (citation omitted).

Applying that standard, it is apparent that the relevant

field here is not petitioner’s straw men (Br. 15, 32) of all

health or compensation issues arising from cigarette

smoking. Rather, the language of the statute makes evi-

dent—and the legislative history canvassed by respondents

confirms—that Congress was concerned with the health

ee

23

aspects of (a) cigarette warnings and (b) the promotion

or advertising of cigarettes. As to those matters, Con-

gress unquestionably expected that its regulatory scheme

—including the warnings it specifically drafted—would

be exclusive, for “[t]here ‘can be no divided authority

over interstate commerce . . . the acts of Congress on that

subject are supreme and exclusive.’” Mississippi Power

& Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354,

377 (1988) (citation omitted). See Papas v. Upjohn Co.,

926 F.2d 1019, 1025 (11th Cir. 1991), petition for cert.

pending, No. 90-1837 (filed May 29, 1991).

Congress did not leave its purposes and objectives to

speculation. It included a “declaration of policy and pur-

pose” in the Labeling and Advertising Act (15 U.S.C.

§ 1331 (emphases added) ), stating that it wanted to es-

tablish “a comprehensive Federal Program to deal with

cigarette labeling and advertising with respect to any

relationship between smoking and health.” This program

was to be the means “whereby” the public was to be

“adequately” informed that smoking may be hazardous

to health. The information was to be conveyed by a

“warning” to that effect on each cigarette package. The

terms, size, and placement of the warning were elabo-

rately specified by Congress itself. “No” other health

warning was allowed to be required, and “no” other re-

quirement or prohibition based on smoking and health

could be imposed by state law on the advertising and pro-

motion of cigarettes. 15 U.S.C. § 1834 (emphasis added).

The purpose of specifying the warning and eliminating

all competing warning and advertising requirements was

itself spelled out: to protect “commerce and the national

economy” to the “maximum extent” consistent with Con-

gress’s warning scheme and to prevent the impeding of

commerce and the national economy by “diverse, nonuni-

form, and confusing” labeling and advertising regulations

addressed to “any” relationship between smoking and

health. 15 U.S.C. § 1331 (emphasis added).

In light of this declaration, it is inconceivable that Con-

gress could have intended the states to exercise any au-

24

thority over the subject matter covered by the federal

statute. Congress viewed regulation of the health aspects

of cigarette warnings and advertising as a national prob-

lem demanding a “comprehensive” national solution. In-

deed, petitioner effectively concedes this point. He ac-

knowledges (Br. 27) that “Congress intended to occupy

the narrow field of affirmative rulemaking with respect to

health warnings on cigarette packages and in cigarette

advertising.”

Petitioner’s asserted limitation to “affirmative rule-

making,” however, is simply a retooling of his argument

that the Labeling and Advertising Act preempts only

statutory and regulatory “requirements” and not common

law tort actions (see Pet. Br. 15 n.17). We have ex-

plained above that that distinction reflects a misunder-

standing of general legal principles and a misreading of

the Act. Without that unfounded qualification, petition-

er’s brief—inadvertently but tellingly—recognizes that

Congress has occupied the particular field of health-

related cigarette warnings and advertising. Because such

an occupation of the field leaves no room for state law,

petitioner’s common law tort claims are preempted.

B. Common Law Tort Claims Are Preempted Because

They Would Conflict With Federal Law And Would

Frustrate The Purposes And Objectives Of Congress

In Enacting The Labeling And Advertising Act.

The court of appeals held that the Labeling and Ad-

vertising Act impliedly preempts “ ‘state law damage ac-

tions relating to smoking and health that challenge either

the adequacy of the warning on cigarette packages or the

propriety of a party’s actions with respect to the adver-

tising and promotion of cigarettes.’” 893 F.2d 541, 582

(3d Cir. 1990), quoting 789 F.2d 181, 187 (3d Cir.

1986), cert. denied, 479 U.S. 1043 (1987). The court

explained that the imposition of state tort “liability for

noncompliance with warning, advertisement. and promo-

tion ob'ivatiors other then those nrescribed in the Act

[would] have the effect of tipping the Act’s balance of

25

purposes and therefore actually conflict with the Act.”

789 F.2d at 187. This conclusion is plainly correct and is

consistent with the ruling of every other federal appellate

court to have considered the issue."

Petitioner’s attack on the Third Circuit’s holding be

gins with the radical suggestion (Br. 14-15, 24) that if

a court concludes that an express preemption provision is

inapplicable in a particular case, it should not apply the

doctrine of implied preemption but instead should auto-

matically hold the state law permissible—regardless of

any actual conflict between federal and state law. Con-

trary to petitioner’s implicit premise, however, the fact

that state law falls outside an express preemption provi-

sion does not necessarily mean that Congress affirma-

tively intended to allow such state action. All that can

be said in those circumstances is that Congress did not

foresee or consider the issue and thus did not provide for

express preemption—thereby leaving it to the courts to

decide, under the Supremacy Clause, whether state law

is impliedly preempted because it conflicts with federal

law or frustrates the purposes and objectives of Congress.

There is no plausible reason why Congress, by enacting

an express preemption provision, would have wanted to

create an immunity from implied preemption for conflict-

ing state laws. Petitioner’s approach would work a

revolutionary change in the doctrine of preemption and

cannot be squared either with this Court’s settled formula-

tion of preemption principles (see, e.g., Jones v. Rath

Packing Co., 430 U.S. 519, 525-526 (1977)) or with the

Court’s decisions that have independently applied express

and implic’ preemption.

In Northwest Cent. Pipeline v. Kansas Corp. Comm'n,

489 U.S. 493 (1989), for example, the Court considered

1 See Kotler v. American Tobacco Co., 926 F.2d 1217 (1st Cir.

1990), petition for cert. pending, No. 90-1473 (filed Mar. 19, 1991);

Pennington Vv. Vistron Corp., 876 F.2d 414 (5th Cir. 1989); Rowsdon

v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (6th Cir. 1988) ; Stephen

v. American Brands, Inc., 825 F.2d 312 (11th Cir. 1987): Palmer

Vv. Liggett Group, Inc., supra.

26

the preemptive effect of the Natural Gas Act, which con-

tained express preemption provisions assigning exclusive

regulatory control over the interstate transportation and

sale of natural gas to the federal government while re-

serving jurisdiction over the production and gathering

of natural gas to the states. After finding that a state

order was not expressly preempted, the Court went on to

consider whether it was impliedly preempted, emphasizing

that this was a necessary and appropriate inquiry not-

withstanding the express statutory division of regulatory

authority (id. at 515-516 n.12 (emphasis in original) ) :

[C]onflict-pre-emption analysis is to be applied, even

though Congress assigned regulation of the produc-

tion sphere to the States and Kansas has acted

within its assigned sphere. * * * Only by applying

conflict pre-emption analysis can we be assured that

both state and federal regulatory schemes may oper-

ate with some degree of harmony.

This sensible mode of analysis has been followed without

question in other cases and forecloses petitioner’s argu-

ment. See, e.g., Ingersoll-Rand, 111 S. Ct. at 482, 484-

485; Jones, 430 U.S. at 525, 540-541; id. at 544 (Rehn-

quist, J., concurring in part and dissenting in part); see

also California Coastal Comm’n v. Granite Rock Co., 480

U.S. 572, 591 (1987) (noting congressional intent not

to preempt state law “except in cases of actual conflict’’) ;

ef. Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 705

(1984) (finding both express and implied preemption

under FCC regulations).

Once petitioner’s diversion is put to one side, it is clear

that state tort claims imposing warning requirements dif-

ferent from or in addition to the congressionally-mandated

warning are impliedly preempted, because state law would

stand as “an obstacle to the accomplishment and execu-

tion of the full purposes and objectives of Congress.”

Hines, 312 U.S. at 67. See de la Cuesta, 458 U.S. at 156.

The Labeling and Advertising Act contemplates a single,

succinct, uniform, national warning, so that the public

would not be confused, and interstate commerce would

27

not be burdened, by diverse and nonuniform warnings

imposed by the states. 15 U.S.C. § 1331. The Act’s legis-

lative history is replete with expressions of Congress’s

desire to avoid the chaotic conditions that would result if

other authorities were permitted to impose their own

health warning requirements. See, e.g., S. Rep. No. 195,

89th Cong., Ist Sess. 4 (1965); H.R. Rep. No. 449, 89th

Cong., Ist Sess. 4 (1965).

If a manufacturer were compelled by the threat of

damages liability under state tort law to alter or supple-

ment the warning on its cigarette packages, it would

frustrate these goals and lead directly to the “diverse,

nonuniform, and confusing” labeling that Congress sought

to avoid." Rather than the “short and direct” (S. Rep.

No. 195, supra, at 4) cautionary statement that Congress

felt to be most effective, consumers would be confronted

with lengthy and legalistic warnings. Moreover, the

warnings undoubtedly would vary from state to state,

depending upon the requirements of local law. Perhaps

unwittingly, the amicus brief of the former Surgeons

General revealingly describes the many complex issues

that are committed to the jury’s discretionary determina-

tion in a common-law failure-to-warn case (Am. Br. 11-

12 (emphasis added) ) :

If the warning is accurate, clear and unambiguous,

if it is sufficiently intense in language to communi-

cate the gravity of the risks involved in the use of

the product, if it is complete and unclouded by con-

tradictory messages, and as long as the methods

chosen are likely to find their way to those who need

the warning, the duty to warn is satisfied.

Under such an approach, differing jury outcomes—both

within a state and among states—are certain to arise.

The regime envisioned by petitioner would be completely

1! Of course, to the extent that state law required manufacturers

to put warnings on the cigarette package itself that were different

from or in addition to that drafted by Congress, it would be im-

possible to comply with both state and federal law. See 15 U.S.C.

§ 1333; Florida Lime, 373 U.S. at 142-143.

28

unworkable and would bear no resemblance to the uniform

regulatory scheme Congress intended.'*

It is no answer to this inevitable inconsistency to sug-

gest that a national manufacturer may obtain “uniform-

ity” by complying with the most stringent state standard.

To begin with, there is no reason why a single state

should be allowed to assume the power to establish what

is, as a practical matter, a nationwide rule; that is the

responsibility of Congress, and one that it has specifically

discharged in adopting the Labeling and Advertising Act.

In any event, state standards in this area are not neces-

sarily linear and cannot be ranked in order of stringency.

For example, each of the 50 states could require a

different “fact” to be disclosed or to be disclosed in a dif-

ferent manner; in that situation, compliance with no one

state’s law would satisfy the requirements of the other

states, and compliance with all 50 rules would result in a

jerry-built conglomeration that would confuse and over-

whelm rather than inform consumers. Even worse, one

state might require certain information that another state

prohibits as misleading, unproven, or superfluous, thereby

leaving cigarette manufacturers without any single warn-

ing label that can be used across the country. A greater

departure from the congressional objective of uniformity

ean scarcely be conceived. See Ray v. Atlantic Richfield

Co., 435 U.S. 151, 165 (1978).

Petitioner offers little response to these concerns, other

than to proclaim (Br. 41) that any conflict between fed-

eral and state law is merely potential or hypothetical.

Contrary to petitioner’s assertion, however, preemption is

not limited to “circumstances in which federal and state

laws are plainly contradictory” but also includes “those

in which the incompatibility * * * is discernible only

12 Similar results would surely follow if states were permitted to

regulate health-related claims in the advertising or promotion of

cigarettes. Common law claims would result in an inconsistent

patchwork of requirements and prohibitions that would be “diverse,

nonuniform and confusing” and that would burden “commerce and

the national economy” (15 U.S.C. § 1331(2) ).

ee

29

through inference.” Hayfield Northern R. Co. v. Chicago

& N.W. Trans. Co., 467 U.S. 622, 627 (1984). See

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 310

(1988). For the reasons already discussed, the conflict

between the Labeling and Advertising Act and state tort

law plainly is sufficient to establish, at the least, such

“incompatibility.”

Petitioner also asserts (Br. 39) that state tort law is

not impliedly preempted here because it has the same

purpose as the Labeling and Advertising Act: the pro-

vision of information to consumers."* But Congress’s

objective was not to maximize at all costs the amount of

information to be provided to consumers; rather, as the

Act itself indicates (15 U.S.C. § 1331), Congress bal-

anced that objective against the need for uniformity and

the protection of commerce and the national economy.

See Palmer, 825 F.2d at 623, 626. Of course, even if

federal and state law had the same general purpose, state

law would still be preempted because its means of achiev-

ing that end conflict with those chosen by Congress. See

Ouellette, 479 U.S. ai 494 (“[I]t is not enough to say

that the ultimate goal of both federal and state law is

to eliminate water pollution. A state law also is pre-

empted if it interferes with the methods by which the

federal statute was designed to reach this goal’’) ; Pacific

13 Several of the amici supporting petitioner seek to engage the

Court in the continuing debate over smoking and health. See Am.

Br. of American College of Chest Physicians, at 7, 22; Am. Br. of

Former Surgeons General, et al., at 5; Am. Br. of American Cancer

Society, et al., at 20; Am. Br. of American Medical Association,

at 15, 18; see also Am. Br. of National League of Cities, et al., at

19-20 n.12. These briefs make clear that their motivation for

espousing common law tort claims is a policy disagreement with

Congress as to the wisdom of its approach to the issue of smoking

and health in general and the adequacy of the congressionally-

drafted warning in particular. But what could be a more vivid

illustration of frustration of congressional objectives than a common

law judgment of liability that depends on a finding that the warning

Congress expressly determined to be adequate is in fact inadequate?

' This argument, of course, is inconsistent with petitioner’s ear-

lier contention that state tort law is not regulatory in nature.

30

Gas & Electric, 461 U.S. at 216 n.28; Perez v. Campbell,

402 U.S. 637, 651-652 (1971). There can be no doubt

that the method adopted by Congress to ensure that

health information is provided to consumers—requiring

that a short, direct and uniform nationwide warning be

placed on each package of cigarettes, and requiring the

FTC to police the fairness and accuracy of cigarette

advertising—is in irreconcilable conflict with the regula-

tory regime of state tort law.

Finally, petitioner errs in asserting (Br. 43) that Con-

gress recognized and accepted the conflict between the

Act and state tort law. This case is a far cry from

Silkwood and the other cases petitioner relies upon, in

which there was affirmative evidence that Congress was

aware of and approved the continued application of 4i-

vergent state law. See pages 20-21, note 9, supra. Here,

by contrast, every indication points to the opposite con-

clusion, including Congress’s own role in drafting «and

later revising the warning label to ensure its adequacy.

The mere fact that a few congressmen may have assumed

that some tort suits against cigarette manufacturers

would continue to be permissible certainly does not imply

that Congress intended to allow tort suits such as this

one, which can succeed only if a jury concludes that the

federal warning and advertising scheme is inadequate.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

KENNETH §. GELLER

Counsel of Record

MARK I. LEVY

Mayer, Brown & Platt

2000 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 463-2000

JULY 1991 Counsel for Amicus Curiae

ont od

APPENDIX

PLAC members include: American Home Products

Corporation; American Telephone & Telegraph Company ;

Amoco Corporation; Amsted Industries, Inc.; Anheuser-

Busch Companies, Inc.; Association of International

Automobile Manufacturers, Inc.; The Boeing Company ;

Bridgestone/Firestone, Inc.; The Budd Company; Cater-

pillar, Inc.; Chrysler Corporation; Clark Material Han-

dling Company; The Coca-Cola Company; The Coleman

Company; Dana Corporation; Deere & Company; Defense

Research Institute; Digital Equipment Corporation; Dow

Chemical Company; Eaton Corporation; Exxon Corpora-

tion; FMC Corporation; Federal-Mogul Corporation;

Ford Motor Company; Freightliner; The Gates Corpora-

tion; General Electric Company; General Motors Corpo-

ration; Goodyear Tire & Rubber Company; Gravely In-

ternational, Inc.; Great Dane Trailers, Inc.; Harnisch-

feger Industries, Inc.; Hoechst Celanese; Honda North

America, Inc.; Hyundai Motor America; Ingersoll-Rand

Company; Isuzu Motors, America, Inc.; Johnson Con-

trols, Inc.; Joy Technologies, Inc.; Kawasaki Motors

Corp., U.S.A.; Eli Lilly and Company; Melroe Company;

Mercedes-Benz of North America, Inc.; Merck & Com-

pany, Inc.; Michelin Tire Corporation; Miller Brewing

Company; Minnesota Mining and Manufacturing Com-

pany; Mitsubishi Motor Sales of America; Monsanto

Company; O.F. Mossberg & Sons, Inc.; Motor Vehicle

Manufacturers Association of the United States, Inc.;

Navistar International Transportation Corp.; New

United Motor Manufacturing, Inc.; Nissan Motor Cor-

poration, U.S.A.; Otis Elevator Company; PACCAR,

Inc.; Philip Morris Companies, Inc.; Piper Aircraft Cor-

poration; Pirelli Armstrong Tire Corporation; Playtex

Family Products Corp., Inc.; Porsche Cars North Amer-

ica, Inc.; Procter & Gamble Company; RJR Nabisco,

Inc.; Rockwell International; Schindler Elevator Corpo-

ration; Snap-on Tools Corporation; Squibb Corporation;

Sturm, Ruger and Company; Subaru of America, Inc.;

(la)

2a

TRW, Inc.; Toyota Motors Sales, U.S.A., Inc.; U-Haul

International; Union Carbide Corporation; Unocal Corpo-

ration; The Upjohn Company; U.S. Tobacco; USX Cor-

poration; Volkswagen of America, Inc.; Volvo North

America Corporation; Vulcan Materials; Jervis B. Webb

Company; Whirlpool Corporation; and Yamaha Motor

Corporation, U.S.A.

a