Petition for Writ of Certiorari — Rowe v. New Hampshire Motor Transport Ass'n
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Q Supreme Court U.S.
Ne. 06-457 AUG 16 2006
In The OFFICE OF THE CLEHK
Supreme Court of the Gnited States
e
G. STEVEN ROWE, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL OF THE STATE OF MAINE,
Petitioner,
v.
NEW HAMPSHIRE MOTOR TRANSPORT
ASSOCIATION, MASSACHUSETTS MOTOR
TRANSPORTATION ASSOCIATION, INC., and
VERMONT TRUCK & BUS ASSOCIATION, INC.,
Respondents.
¢
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The First Circuit
o
PETITION FOR A WRIT OF CERTIORARI
+
REDACTED
o
G. STEVEN ROWE
Attorney General
PAUL STERN
Deputy Attorney General
(Counsel of Record)
MELISSA REYNOLDS O’DEA
PETER B. LAFOND
CHRISTOPHER C. TAUB
Assistant Attorneys General
Office of the Attorney General
6 State House Station
Augusta, ME 04333-0006
Tel: (207) 626-8568
Counsel for Petitioner
—-—
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Whether the Federal Aviation Administration Au-
thorization Act of 1994 (“FAAAA”), 49 U.S.C. §§ 14501(c)(1)
and 41713(b)(4)(A), preempts states from exercising their
historic public health police powers to regulate carriers
that deliver contraband such as tobacco and other danger-
ous substances to children.
2. Whether the FAAAA preempts states from exercis-
ing their historic public health police powers to require
shippers of contraband such as tobacco and other danger-
ous substances to utilize a carrier that provides age
verification and signature services to ensure that such
substances are not delivered to children.
ii
PARTIES TO THE PROCEEDING
Petitioner G. Steven Rowe is the Attorney General of
the State of Maine, acting in his official capacity. Respon-
dents New Hampshire Motor Transport Association,
Massachusetts Motor Transportation Association, Inc., and
Vermont Truck and Bus Association, Inc., (the “Associa-
tions”), are trade associations of businesses engaged in the
commercial delivery of packages containing property.
ill
TABLE OF CONTENTS
Page
I ia ata leisctaeisiidemnasabiintaneatilii i
Ee il
ac tisnentinnstiaincisnindiimaloninaiéaciiensielainn iv
EET en eee EN 1
Catal nia ciel 1
Constitutional and Statutory Provisions Involved.... 1
STITT icssincicepaihiditiaiiiesicdndgetatpiecldiineneenaeianiaddiadesiaadiaiiidele 4
1. The Maine Tobacco Delivery Law ............. 4
2. The Federal Aviation Administration Au-
thorization Act of 1994..................cccccsesses 7
— SN NEE 10
© I BI ercciccccnccscccesccscsccccsncsasee 12
Reasons for Granting Writ ......................:::cccceeseeeeneees 15
I. The Court’s Review Is Needed Because the
First Circuit’s Decision Prevents the States
from Regulating Delivery Sales of Dangerous
Substances, Including in Particular Tobacco
ERLE SEER ae eee CME MCRD as ONE ORD 17
Il. The First Circuit’s Preemption Analysis Is
Incorrect and Not Consistent with this
EET ICL D IRS LE TTR 20
Ill. The First Circuit’s Decision Is Inconsistent
with the Decisions of Other Courts of Ap-
peals as well as Lower Courts ................00c.0005 25
TEFEN EEE en SCT en ae De ee Ee EOE 29
iv
TABLE OF AUTHORITIES
Page
CASES:
Ace Auto Body & Towing, Ltd. v. City of New York,
ee TIES eb ciicetniisceccnticessinennsniniansiniinesen 27
American Airlines, Inc. v. Wolens, 513 U.S. 219
SSSI ictsenstileiteiunceiitiieinehdeaiancihidinitdaeinteiincaiapasiabaeaiiehncai 26
California Div. of Labor Standards Enforcement v.
Dillingham Construction, Inc., 519 U.S. 316 (1997)........ 21
Californians for Safe & Competitive Dump Truck
Transp. v. Mendonca, 152 F.3d 1184 (9th Cir.
1998), cert. denied, 526 U.S. 1060 (1999)................ 25, 26
City of Columbus v. Ours Garage and Wrecking
Service, Inc., 536 U.S. 424 (2002)..................cce cece passim
Federal Drug Administration v. Brown & William-
son Tobacco Corp., 529 U.S. 120 (2000) ........................ 18
Granholm v. Heald, 544 U.S. 460 (2005).................04. 20, 23
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) .. 18, 23
Morales v. Trans World Airlines, Inc., 504 U.S. 374
iittala haiti adda taialaaila 14, 22, 26
New York State Conference of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U.S. 645 (1995)............. 21, 22
New York State Motor Truck Assoc. v. Pataki, 2004
U.S. Dist. Lexis 25519 (S.D. N.Y. 2004)... 27
Pharmaceutical Research & Mfrs. Of Am. v. Walsh,
NG I iii esi liidnaniettenigenientaabiomepeinnbiiaes 19
Robertson v. State of Washington Liquor Control
Board, 10 P.3d 1079 (Wash. App. Ct. 2000) .................. 28
Ward v. New York, 291 F. Supp. 2d 188 (W.D. N-Y.
Si eicicaetiininichiattoienieaiéatnadieseineneddiidiindaaaiibvieeasodiiesiprihice 27
TABLE OF AUTHORITIES - Continued
Page
U.S. CONSTITUTION AND FEDERAL STATUTES
U.S. Const., art. VI, cl. 2 (Supremacy Clause).................... 2
Se Oe I ccncscsnccccsenovssensetetibanmncscnamienpnetesiiadeiaiians 18
Be EY OP BEE cinsccrsnccscessnetcennnsnininigiseuuiinseesihiaenndiana 1
Bee I Ot BI vsesiricnscccnscatenscsnncassveccsengsisnionianemeaaiaaaiala 1
a a SII diicscichinsinnsnencapionmrenenednnietianieaniaiasentiill 21
Fe es Ae IED cntncepentrensnninssnssintacescnesbeitinianinniaied 18
es EID cccnivicnsccntesescnsnsetsessssincdnimmaneinnds 18
ey Oe SEED coniccecetersisrnsatecescsosstsnnitbiandienanibumaiia 22
ee El taneccceosnnctoinncsniimnnsianitinisimmmiumpnaianaadell 9
rs Oe ic cceccccccetnssicntsensicntessitiinsadssiintmadieimdaiiall 8
rs 0 i cccsiccscentovscnndncnsenapsonnannininieniieiiaimeiata 9
ee Oe ces cscnscsctnssencsenececerasienciiteatanaunaianal 9
re i iccsivsiscteciedscccatendcsidinvetcmmiiaiuadaal 3, 8, 21
GD UB. B DESIRE) — BD). ccvceccevseesccscscosnssesesesesssints 3, 8,9
le Oe eR cscicentcsccccccntinestinitiintintansindaaanaia 9
49 U.S.C. § 41713(D)(4 (A)... ee eeeceeeeeeeteeeeeeeeenee 2, 8, 21
ae he FR csieicscsecececnsstninnsmniiiivepsiniiaiinaa 3,8
Pub. L. No. 102-321, Title II, § 202, 106 Stat. 394
(1992 Synar Amendment) ..............sccccssssssssossoccsssscesceees 18
Pub. L. No. 103-305, § 601, 108 Stat. 1569, 1605........... 2,7
Pub. L. No. 103-305, § 601(a)(1), 106 Stat. 1569,
SIUTTEP sss cnesciendindsiiointiionmuniatddentiiieenimeinigaiaiaiiaiaiaiieelien 8
Pub. L. No. 103-305, § 601(a)(2), 108 Stat. 1569,
STUTEED voscovevetscnnscanesenreossnnsanpeensinssonatpeibininbapetdenduiunisaialiai 8
TABLE OF AUTHORITIES — Continued
Page
Pub. L. No. 103-305, § 601(c), 108 Stat. 1569, 1605... 2, 8, 9
Pub. L. No. 104-88, § 103, 109 Stat. 803, 899..............0.0.... 9
STATE STATUTES AND REGULATIONS
EE ELC 17
EL eee 17
ee 17
Cal. Bus. & Prof. Code § 17533.9...................ccccccecsssssseeess 17
Cal. Fish & Game Code § 4800 ..00.0.0.........ccccccccceceeeeeeeeeeees 17
I IIE, II, ETI 01 ccc ccesscnssnseunesesocosooncocoosonnete 4
8 Me. Rev. Stat. Ann. § 221, ef seq. ..............cccccccceeeeeeeeeeeeees 4
i ni nrtccsrsmmnsgnansntoncbins 4
12 Me. Rev. Stat. Ann. §§ 8305-06 0.00000. .2.......cccccccceeeeeteeeeees 4
17-A Me. Rev. Stat. Ann. § 554-B(2)..0.0000..... ccc ccccceeeceeees 4
17-A Me. Rev. Stat. Ann. § 1001(1)(B)...................000:ccceeseeee 4
SS, OT nn cnassececeseseuscnsnstcnnnsonccens 4
22-A Me. Rev. Stat. Ann. § 1555-A ...... ccc ccceeceeeeeeeeeees 5
22 Me. Rev. Stat. Ann. § 1555-B(1) ...............ec cee cceceeeeeeeeeees 5
22 Me. Rev. Stat. Ann. § 1555-B(2) 20.0.0... ccceeeeeeeeeeeeeeee 5
22 Me. Rev. Stat. Ann. § 1555-B(5-A).............. ccc ccccceeteeees 5
22 Me. Rev. Stat. Ann. § 1555-C(3)(A) «00... eceeees 6, 12
22 Me. Rev. Stat. Ann. § 1555-C(3)(B) ....... 2... ccccccececceteees 6
22 Me. Rev. Stat. Ann. § 1555-C(3)(C) ....... ee. passim
22 Me. Rev. Stat. Ann. § 1555-C(1) 2.0.0... cccccceccceeeeeeeeeeeees 5
TABLE OF AUTHORITIES — Continued
Page
22 Me. Rev. Stat. Ann. § 1555-C(2) 0.0... cccceseeeeeeneeeeees 5
22 Me. Rev. Stat. Ann. § 1555-C(7) ..................:cccsccceecercceees 6
22 Me. Rev. Stat. Ann. § 1555-D «2.000.000... passim
22 Me. Rev. Stat. Ann. § 1555-D(2) 0000.0... cccecceeeesseeeeees 7
22 Me. Rev. Stat. Ann. § 1555-D(3) 0.0.0.0... eee eeceeeeeseeeeeees 7
22 Me. Rev. Stat. Ann. § 1555-D(4) ..0.0... ec cccccceeeeeeeeeeeees 7
es Sey CEU BUI, SO tr iccncccessscccscseccsscnscnnsessncenionien 4
A SEED CI RI, OF ID cnciecerncscsccccecnsnessannnisissnenneese 4
28-A Me. Rev. Stat. Ann. § 2081 ..00.0.........ccccccceesseeeeeseeeeeees 4
TTD STITT iieteeesintesinemnintnactiinnneidnenedamnsaibniines 17
N.Y. Public Health Law § 1399-11 ..0.0...........ccccccccseeeeeeeeeee 12
SS 5 ee ae 4
RN ee ae 4
SER EE ene oT 4
Ta TT iin atienensentenemntniesicinniaibhitatddl 4
RE Se TE 4
es Sik ts Os SE OF OP cescecenccesenennnmnsenesneneecnncenectinnasion 4
a tice inten eaiemteniatiteitaas 5
10-144-203 Me. Code R. § 10(C)(2)..........cceccceeceesceeeeceeeeeees 6
10-144-203 Me. Code R. § 11 oo... cece cccccccccccceeeeeceeeeeeeees 6
OTHER
H.R. Conf. Rep. No. 103-677 (1994), reprinted in
1994 U.S.C.C.A.N. 1715-1760 ....0... cece 7, 9, 22, 26
1
PETITION FOR A WRIT OF CERTIORARI
The petitioner respectfully petitions for a writ of
certiorari to review the judgment and opinion of the
United States Court of Appeals for the First Circuit in this
case decided on May 19, 2006.
S
OPINIONS BELOW
The opinion of the court of appeals is reported at 448
F.3d 66 (Petition Appendix (“App.”) 1). The district court’s
opinions are reported at 377 F. Supp. 2d 197, 324 F. Supp.
2d 231, and 301 F. Supp. 2d 38 (App. 31, 73, and 86).
°
JURISDICTION
The district court exercised jurisdiction under 28
U.S.C. § 1331, and entered a final amended judgment on
June 29, 2005. The court of appeals asserted jurisdiction
pursuant to 28 U.S.C. § 1291, and entered judgment on
May 19, 2006. The district court entered its second
amended judgment on June 29, 2006.
@
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
At issue in this case is whether Maine’s “Act To
Regulate the Delivery and Sales of Tobacco Products and
To Prevent the Sale of Tobacco Products to Minors”
(“Maine Act”), which regulates retailers and deliverers of
tobacco products in order to protect children, is preempted
by the Federal] Aviation Administration Authorization Act
2
of 1994 (“FAAAA”), Pub. L. No. 103-305, § 601, 108 Stat.
1569, 1605. Article VI, clause 2 of the Constitution pro-
vides that the laws of the United States “shall be the
supreme Law of the Land; ... any Thing in the Constitu-
tion or Laws of any state to the Contrary notwithstand-
ing.
The first FAAAA preemption provision states:
(A) General rule. - Except as provided in sub-
paragraph (B), a State, political subdivision of a
State, or political authority of 2 or more States
may not enact or enforce a law, regulation, or
other provision having the force and effect of law
related to a price, route, or service of an air car-
rier or carrier affiliated with a direct air carrier
through common controlling ownership when
such carrier is transporting property by aircraft
or by motor vehicle (whether or not such property
has had or will have a prior or subsequent air
movement).
49 U.S.C. § 41713(b)(4)(A). Subparagraph (B), captioned
“Matters not covered,” provides that subparagraph (A)
(i) shall not restrict the safety regulatory au-
thority of a State with respect to motor vehicles,
the authority of a State to impose highway route
controls or limitations based on the size or
weight of the motor vehicle or the hazardous na-
ture of the cargo, or the authority of a State to
regulate motor carriers with regard to minimum
amounts of financial responsibility relating to in-
surance requirements and self-insurance au-
thorization; and
(ii) does not apply to the transportation of
household goods. .. .
49 U.S.C. § 41713(b)(4)(B).
The second preemption provision states:
(c) Motor carriers of property. (1) General Rule.
Except as provided in paragraphs (2) and (3), a
State, political subdivision of a State, or political
authority of 2 or more States may not enact or
enforce a law, regulation, or other provision hav-
ing the force and effect of law related to a price,
route, or service of any motor carrier .. . with re-
spect to the transportation of property.
49 U.S.C. § 14501(c)(1). Paragraph (2), captioned “Matters
not covered,” exempts from preemption the same areas set
forth above for air carriers, and also certain types of
towing rates. 49 U.S.C. §14501(c\2). Paragraph (3),
captioned “State standard transportation practices,”
exempts from preemption state regulation related to
certain uniform liability rules, bills of lading, and credit
rules and certain antitrust laws if such regulation “is no
more burdensome than compliance with” federal law, and
the carrier requests that the law apply to it. 49 U.S.C.
§ 14501(c)(3).
The pertinent provisions of the Maine Law, in particu-
lar 22 Me. Rev. Stat. Ann. §§ 1555-C(3)(C) and 1555-D, are
reproduced at App. 100, and immediately discussed below.
S
4
STATEMENT
This case presents the issue of whether Congress has
preempted the states from controlling the delivery of
dangerous substances, here tobacco, where a carrier such
as United Parcel Service (“UPS”) is used as the conduit for
illegal transactions.
1. The Maine Tobacco Delivery Law. The Maine
law at issue here is strongly rooted in the State’s tradi-
tional police powers to protect the health of its children.
Maine, like other states, has historically regulated the
transport and delivery of various substances in order to
protect the public. These laws range from limiting the sale
and delivery of fireworks and explosives, to prohibiting the
delivery of liquor, drugs and handguns to minors, to
regulating the transportation of plants and wild animals.’
' See, e.g., 28-A Me. Rev. Stat. Ann. §§ 2073, 2077, originally
enacted in 1987, Me. Pub. L. 1987, c. 45, § A, 4 (liquor transportation
provisions); former 12 Me. Rev. Stat. Ann. § 7534, originally enacted in
1979, Me. Pub. L. 1979, c. 420, § 1 (“Any common carrier accepting any
wild animal or wild bird for transportation shall” check the hunter's
license, affix tags and identification, and make returns to the commis-
sioner); 8 Me. Rev. Stat. Ann. §§ 221, et seg., enacted by Me. Pub. L.
1985, c. 23, §2 (prohibiting possession, sale or transport “in any
conveyance” of fireworks “except as permitted by” state regulations),
17-A Me. Rev. Stat. Ann. § 1001(1B), enacted by Me. Pub. L. 1975, c.
499, § 1 (prohibiting transport or sale of explosives without a permit);
28-A Me. Rev. Stat. Ann. § 2081, enacted by Me. Pub. L. 1987, c. 45, § A,
4 (prohibiting furnishing, delivering, or giving liquor to a minor); 7 Me.
Rev. Stat. Ann. § 3981, enacted by Me. Pub. L. 1987, c. 383, § 3 (regulat-
ing periods of confinement and conditions for transportation of ani-
mals); 12 Me. Rev. Stat. Ann. §§ 8305-06, originally enacted by Me. Pub.
L. 1979, c. 545, §3 (prohibiting and regulating shipment of plants and
trees); 17-A Me. Rev. Stat. Ann. § 1118 (transporting scheduled drugs);
17-A Me. Rev. Stat. Ann. § 554-B(2) (transferring handgun to minor).
5
It is illegal in Maine for a minor to “purchase, possess
or use cigarettes, cigarette paper or any other tobacco
product.” 22 Me. Rev. Stat. Ann. § 1555-B(5-A). A person
“may not sell, furnish, give away or offer to sell, furnish or
give away a tobacco product to any person under 18 years
of age” and may not sell “to any person under 27 years of
age unless the seller first verifies that person’s age by
means of reliable photographic identification containing
the person’s date of birth.” Jd. at § 1555-B(1) & (2).
Internet and telephone sales of tobacco products have
become a serious problem. By means of delivery services,
enterprising retailers seek to avoid over-the-counter age
verification requirements by selling the tobacco products
to minors and delivering them not over-the-counter, but
rather through third-party carriers such as UPS. In
response to this dangerous practice, in 2003 the Maine
Legislature passed “An Act To Regulate the Delivery and
Sales of Tobacco Products and To Prevent the Sale of
Tobacco Products to Minors,” Me. Pub. L. 2003, c. 444.
The Act requires a person who engages in the sale of
tobacco products by means of delivery to take a number of
steps to ensure that tobacco products do not reach the
hands of minors. Retailers engaged in delivery sales of
tobacco to Maine citizens must obtain a retail license from
the Maine Department of Human Services (22 Me. Rev.
Stat. Ann. § 1555-C(1)), just as over-the-counter retailers
must (/d. at § 1551-A). Similarly, the Act requires the
internet or telephone tobacco retailer to obtain age verifi-
cation (Jd. at § 1555-C(2)), just as age verification for
persons under 27 years of age is called for in over-the-
counter sales (/d. at § 1555-B(2)).
6
The Act requires the retailer to “clearly mark the
outside of the package . . . to indicate that the contents are
tobacco products and to show the name and State of Maine
tobacco license number of the ... retailer.” Jd. at § 1555-
C(3)(B).’ Section 1555-C(3)(C) applies only to retailers who
ship tobacco products, not to the carriers, and calls for
tobacco retailers to “utilize a delivery service that imposes”
requirements that the addressee be of legal age to pur-
chase tobacco products and sign for the package, the
purchaser be the addressee, and, if the addressee is under
27 years old, present a valid identification showing proof
of age.’ Tobacco products shipped in violation of these
requirements are contraband, subject to forfeiture. Jd. at
1555-C(7).
Section 1555-D of the Act applies to carriers and, in
pertinent part, provides:
A person may not knowingly transport or
cause to be delivered to a person in this State a
tobacco product purchased from a person who is
not licensed as a tobacco retailer in this State,
except that this provision does not apply to the
transportation or delivery of tobacco products to
a licensed tobacco distributor or tobacco retailer.
A person is deemed to know that a package con-
tains a tobacco product if the package is marked in
accordance with the requirements of section 1555-
C, subsection 3, paragraph B or if the person
* Maine adopted rules for the enforcement of this law that require,
inter alia, the retailer to mark the label side of the package with a
tobacco marking, and does not require a carrier to look at the bottom of a
package for tobacco markings. 10-144 -203 Me. Code. R. §§ 10(CX2), 11.
> Section 1555-C(3)(A) requires the tobacco retailer, prior to
shipping, to provide to the delivery service the age of the purchaser.
7
receives the package from a person listed as an
unlicensed tobacco retailer by the Attorney Gen-
eral under this section.
Transgressions are civil violations punishable by fines of
from $50 to $1500, and the Attorney General may enforce
the law by seeking injunctive relief. Jd. at § 1555-D(2) &
(3). Maine maintains a list of licensed and known unli-
censed retailers, provides the list to delivery services, and
reliance on that list is an affirmative defense. Id. at
§ 1555-D(3) & (4). These provisions ensure that a carrier is
not delivering contraband tobacco.
2. The Federal Aviation Administration Au-
thorization Act of 1994. The FAAAA was intended to
preempt the states from engaging in economic regulation
in order (1) to eliminate non-uniform “[s]tate economic
regulation of motor carrier operations [that] causes signifi-
cant inefficiencies, increased costs, reduction of competi-
tion, inhibition of innovation and technology, and curtails
the expansion of markets”; and (2) to “level the playing
field” between air carriers and motor carriers. H.R. Conf.
Rep. No. 103-677, at 85-88 (1994), reprinted in 1994
U.S.C.C.A.N. 1715, 1758-60. “The problem to which the
congressional conferees attended was ‘state economic
regulation.’” City of Columbus v. Ours Garage and Wreck-
ing Service, Inc., 536 U.S. 424, 440 (2002) (emphasis in
original). There is no hint that Congress intended to
preempt state public health laws regulating the delivery of
dangerous substances.
The pertinent preemption provisions were enacted as
Pub. L. No. 103-305, § 601, 108 Stat: 1569, 1605. Congress
found that state regulation of intrastate transportation of
property imposed unreasonable burdens on and impeded the
free flow of interstate commerce and placed an unreasonable
8
cost on American consumers, and, therefore, “certain
aspects of the State regulatory process should be pre-
empted.” Pub. L. No. 103-305, § 601(a)(1) & (2) (emphasis
added).
Section 41713(b) of Title 49 was amended to add a
“(gleneral rule” that “[e]xcept as provided in subparagraph
(B),” a state could not enact or enforce a law “related to a
price, route, or service of an air carrier ... when such
carrier is transporting property by aircraft or by motor
vehicle.” Pub. L. No. 103-305, § 601(b)(1), codified at 49
U.S.C. § 41713(b)(4)(A). Subparagraph (B), entitled “Mat-
ters not covered,” provided that preemption would not
cover state regulation of safety, hazardous cargo, insur-
ance or household goods. Pub. L. No. 103-305, § 601(b)(1),
codified at 49 U.S.C. § 41713(b)(4)(B).
In order to accomplish the goal of placing air and ground
carriers on the same economic plane, as part of the FAAAA
Congress enacted a new subsection entitled “Preemption of
State Economic Regulation of Motor Carriers.” Pub. L. No.
103-305, §601(c) (emphasis added). This new subsection
proscribed states from enacting or enforcing laws “related to
a price, route, or service of any motor carrier ... with
respect to the transportation of property.” Pub. L. No. 103-
305, § 601(c), originally codified at 49 U.S.C. § 11501(h)(1),
now codified at 49 U.S.C. § 14501(c\(1). The exemptions
from preemption for motor carriers included the same
matters exempted for air carriers — state regulation of
safety, hazardous cargo, insurance or household goods. Pub.
9
L. No. 103-305, § 601(c), originally codified at 49 U.S.C.
§ 11501(h)(2), now codified at 49 U.S.C. § 14501(c)(2).'
The exceptions came about due to Congress’ paying
specific attention to the American Trucking Association’s
position that there be no preemption of state “non-
economic factors,” and the conferees intended to imple-
ment that approach. H.R. Conf. Rep. No. 103-677, at 88
(1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1760; City of
Columbus, 536 U.S. at 440-41. In particular, the conferees
added the specific exceptions to preemption in an effort to
make clear that the intent was “to preempt economic
regulation by the States”; and the conferees explained that
those specific exceptions “were not intended to be all
inclusive, but merely to specify some of the matters which
are not ‘prices, rates or services’ and which are therefore
not preempted.” H.R. Conf. Rep. No. 103-677, at 84, 86-88
(1994), reprinted in 1994 U.S.C.C.A.N. 1715, 1756, 1758-
60 (emphasis added). Non-uniform regulation in non-
preempted areas was expected and permitted. City of
Columbus, 536 U.S. at 441.
* Congress also included an additional exemption from preemption
for motor carriers for certain “State standard transportation practices”
regarding uniform liability, bills of lading, credit rules and antitrust
laws if the carrier requests that the state law apply to it. Pub. L. No.
103-305, § 601(c), originally codified at 49 U.S.C. § 11501(h)(3), now
codified at 49 U.S.C. § 14501(c)(3).
Just one year after its enactment, § 11501(h) was recodified at 49
U.S.C. § 14501(c), with an added exemption for state regulation of
nonconsensual tow rates — by the Interstate Commerce Commission
Termination Act of 1995 (ICC Termination Act), Pub. L. No. 104-88, §
103, 109 Stat. 803, 899. The tow rate exemption is now found at section
1450 1(c2XC).
10
3. Operative Facts. The three _ respondents-
plaintiffs are non-profit trade associations whose members
are “engaged in the commercial delivery of packages
containing property.” In their challenge to the Maine Act,
the Associations relied entirely upon the experience and
facts of UPS.
Ordinarily, and prior to the enactment of this law, all
sides of the exterior of packages are visually scanned at
many stages through the distribution process’ for, inter
alia, labels, signs of damage, improper packaging, leakage,
handguns, prohibited contents and hazardous waste
markings by various UPS employees such as sorters,
presorters and drivers. UPS has implemented written
procedures and policies relating to the delivery of sub-
stances such as alcohol and handguns.
In response to the Maine Act, UPS instructed certain
of its employees in Maine to look for markings indicating
°* UPS uses a “hub-and-spoke” system, which consists of an
extensive network of sorting facilities throughout the country that
generally works as follows: the person or entity shipping the package
provides delivery information on UPS's shipping form or though an
electronic shipping system; the package enters UPS’s system through a
package driver pick-up (includ ag pickups from the shipper, an outlet
such as a UPS Store or a UPS drop box), or through UPS's customer
counter; the driver brings the picked-up package to a local operating
center; the package is unloaded and placed on conveyor belts for sorters
to separate based on delivery location and the delivery time commit-
ment; feeder vehicles and, in some cases, airplanes and trains take the
package from the centralized hub to another hub for further sorting,
and ultimately to a local center for delivery; at the local center the
package is further sorted and loaded onto a vehicle for delivery based
on the recipient’s address; and at delivery the driver physically delivers
the package checking specific delivery information, such as the need for
age verification or a signature, on a hand-held computer device (a
“DIAD”).
11
that a package contained tobacco products. The preloaders
and drivers were instructed to treat any such package as
non-deliverable, and to give that package to a designated
employee who assesses how to proceed, including return-
ing the package to the sender or disposing of the package.
A UPS employee estimated that it takes a preloader
approximately an additional two seconds to visually scan
the label of a package for tobacco indicia. Based upon this
estimate, the UPS employee provided a cost figure for
Maine, amounting to approximately $0.009, or less than
one cent, per package. UPS did no other study or analysis
to determine whether a driver spends any additional time
to comply with the Maine Act, or what the effect of the
Maine Act is on its package sorting rate. UPS delivers
approximately 65,000 packages per day in Maine.
During a five-month period, UPS intercepted a total of
thirty-three packages that its workers believed contained
tobacco products destined for Maine consumers. UPS
estimates that it costs approximately $2.00 in personnel
time to deal with each such package. Thus, according to
UPS, for a five month period there was an additional $66
in costs to UPS to comply with Maine’s law. UPS's total
revenue in 2003 was $33.5 billion.
UPS’s computer systems, according to UPS, can do
“pretty much anything.” It is the second largest computer
system in the world. At the time of each and every deliv-
ery, the UPS driver checks and enters delivery information
on a hand-held computer device (“DIAD”). The DIAD has
the capability and does provide relevant prompts or
“alerts” regarding each package when delivered. These
“alerts” inform the driver, inter alia, whether a signature
or adult confirmation is required. UPS has the capability
BEST AVAILABLE COPY
12
to flag specific delivery addresses or specific consignees to
UPS offers a delivery confirmation, adult
signature-required service, for an additional fee of either
$1.75 or $2.75. When a driver delivers such a package, she
receives a prompt on her DIAD to have her verify the age
of the — receiving the package or obtain a signature.
The State provided to UPS an electronic version of its
list of known unlicensed tobacco retailers who may be
attempting to unlawfully ship tobacco to Maine consum-
ers, but UPS has not researched whether any of its regular
shippers are on the state list of known unlicensed tobacco
retailers. UPS has over 4,000 employees in the technology
and information systems area but did no study of the
capability of the system regarding compliance with the
Maine law.
During the pendency of the appeal, UPS entered into
an agreement to comply with New York’s “Unlawful
Shipment of Cigarettes Law,” N.Y. Pub. Health Law,
§ 1399-/l. UPS agreed, inter alia, to impose measures to
ensure that employees “actively” look for indications that a
package contains cigarettes, and to instruct preloaders
and drivers not to load for delivery or deliver cigarette
packages to consumers. UPS's policy is to “require its
shippers to be licensed by applicable law in order to ship
tobacco products,” and to accept shipments of cigarettes
for delivery only to recipients who are licensed by applica-
ble federal or state law to receive cigarette deliveries.
4. Proceedings Below. On October 10, 2003, the
Associations commenced this action in the United States
13
District Court for the District of Maine to challenge
sections 1555-C(3)(A) and (C) and 1555-D of the Maine Act
as preempted facially and as-applied by the FAAAA. The
Associations immediately filed a motion for summary
judgment that those provisions were facially »eempted.
On February 6, 2004, the district court denixi plaintiffs’
motion, holding the challenged portions of the Maine Act
were not facially preempted by the FAAAA. (App. 86). The
court allowed the Associations to proceed on the as-applied
challenge.
The Attorney General then filed a motion for sum-
mary judgment on the facial challenge for the reasons set
forth in the court’s first decision. On June 30, 2004, the
district court granted summary judgment for the Attorney
General on “all counts as to any facial FAAAA preemption
challenges to” the Maine Act. (App. 73).
Cross-motions for summary judgment were filed, and,
on May 27, 2005, the district court issued its ruling in
favor of the Associations and against the Attorney General
that sections 1555-C(3)(C) and 1555-D were preempted by
the FAAAA both facially, thus reversing its prior rulings,
and as applied. (App. 31).
The Attorney General appealed. On May 19, 2006, the
First Circuit issued its decision effectively affirming the
lower court’s decision.* (App. 1). The First Circuit held that
* Below, the Attorney General sought dismissal of the action on the
grounds of mootness and lack of associational standing. The appeals
court rejected those positions (App. 7-12). In particular, the First
Circuit reasoned the matter was not moot because the New York
agreement dealt only with cigarettes, while Maine’s law covers all
tobacco products. The Attorney General no longer presses these
arguments.
14
the FAAAA “preempts state police-puwer enactments” to
the extent they have “the effect of forcing [a carrier] to
change its uniform package-processing procedures,” and
the purpose of the state law is irrelevant to the preemp-
tion inquiry. (App. 17-18, 28). The court reasoned that the
“related to” language of the FAAAA’s preemption provi-
sions as well as the FAAAA’s structure and legislative
history support a broad preemptive effect, and that the
Attorney General’s view would “swallow the rule of pre-
emption” because most state laws are enacted pursuant to
the states’ police powers. (App. 14-21). The appeals court
also found that the conferees’ specific reference to Morales
v. Trans World Airlines, Inc., 504 U.S. 374 (1992), required
adherence to a broad view of preemption, and the court
refused to apply subsequent Supreme Court interpretation
of similar “relate to” preemption language in ERISA,
indicating it was for the Supreme Court and not the First
Circuit to do so. (App. 14-16, 20).
The appeals court found that section 1555-C(3\(C) —
which requires tobacco retailers to use a delivery service
that provides delivery directly to the purchaser, a signa-
ture, and age verification — is “related to” a carrier’s
service due to the potential for delay if a carrier chose to
provide such options. (App. 23). Although the provision
applies only to retailers, the court reasoned it indirectly
regulated carriers by “employing [the state’s] coercive
powers to police the method by which carriers provide
services in the state.” (App. 24).
Section 1555-D precludes carriers from knowingly
delivering tobacco products to children. The First Circuit
found that so much of section 1555-D that proscribed
“knowing” delivery of tobacco for an unlicensed retailer
was not preempted. (App. 26). However, the appeals court
15
went on to conclude that section 1555-D was preempted to
the extent it charged carriers with knowledge that a
package contains tobacco products if the package is so
marked or if the shipper appears on the Attorney Gen-
eral’s list of licensed or known unlicensed retailers. (Jd. at
27-28). These provisions were found to be preempted
because they require the carrier “to change its uniform
package-processing procedures” by inspecting every
package destined for delivery in Maine and segregating
the packages that contain tobacco to research whether the
addressee is a Maine-licensed retailer or distributor who
can receive the package. (Jd.) The First Circuit conceded
there was “notential tension” in its decision — Maine
hypothetically could prosecute a carrier for “knowing
delivery” of contraband tobacco, but Maine could not
impute knowledge “based on a failure to read labels or
consult lists — an imputation which would amount to
prescribing how carriers must operate.” (Id. at 28-29). Of
course, these are the identified means to prove “knowing”
delivery of tobacco. The court admitted that “as a practical
matter, [it] may be difficult to prove” a case against a
carrier. (/d. at 29).
SJ
REASONS FOR GRANTING WRIT
The First Circuit’s decision has far-reaching and
devastating effects on the states’ ability to exercise their
historic health-related police powers. The First Circuit
held that the FAAAA preempts the exercise of the state's
historic public health police powers whenever the state
regulation directly or indirectly potentially affects a
carrier’s business. The decision forbids states from requir-
ing retailers to use a carrier that provides age verification
16
and signature services, even though some carriers already
provide these types of services. And the decision forbids
states from imputing knowledge to a carrier from obvious
tobacco markings on a package because it has “effects” on
the “uniformity” of a carrier’s procedures, even though the
carriers already check the packages for a variety of other
markings and for damage. These are the means to regu-
late delivery of dangerous substances, and the First
Circuit has identified no others. The decision, thus, pre-
empts countless state laws that have existed for decades,
regulating the sale and delivery of substances, from
tobacco to weapons to alcohol. See note 1, supra.
It is beyond debate that unregulated access by chil-
dren to tobacco products is a serious public health problem
— tobacco addicts, sickens and kills. Regulation of chil-
dren’s access to tobacco traditionally and specifically is
intended by Congress to be handled by the states. There is
no federal program regulating delivery sales of tobacco by
telephone and internet retailers. The appeals court deci-
sion effectively leaves delivery sales of tobacco to children
unregulated by any government, a result nowhere sug-
gested by Congress or supported by common sense.
The First Circuit’s decision is wrong and conflicts with
decisions of this Court. The FAAAA was intended to
preempt state economic regulation, City of Columbus, 536
U.S. at 432. There is no hint that Congress intended
preemption of state public health regulations that may
have an effect on the “uniformity,” and potentially the
“economics” or profitability, of carriers. The First Circuit’s
boundless reading of the “related to” language in the
FAAAA preemption provisions swallows up state police
powers, and the appeals court specifically refused to follow
this Court’s practical interpretation of similar language
17
found in other statutes such as ERISA. It should come as
no surprise, therefore, that the First Circuit’s decision also
conflicts with the analysis of FAAAA preemption of other
circuits. The Second and Ninth Circuit hold that the
FAAAA does not preempt a state’s exercise of its tradi-
tional police powers in noneconomic areas. This Court
should grant certiorari and reverse the First Circuit's
damaging decision.
I. THE COURT'S REVIEW IS NEEDED BECAUSE
THE FIRST CIRCUIT’S DECISION PREVENTS
THE STATES FROM REGULATING DELIVERY
SALES OF DANGEROUS SUBSTANCES, IN-
CLUDING IN PARTICULAR TOBACCO TO
CHILDREN.
Tobacco is just one of many substances controlled by
states to protect the public health and safety. Maine, like
virtually all states, places controls and restrictions on the
sale and delivery of tobacco as well as, inter alia, weapons,
chemicals, and live animals.’ State controls rely almost
entirely upon requiring retailers to ship dangerous sub-
stances in a certain fashion or checking for identifying
markings or labels on the outside of the package. By
holding a state cannot require a retailer to ship dangerous
substances in a particular fashion, such as requiring age
verification, or impute knowledge to a carrier it is shipping
* E.g., Ala. Code § 2-14-5 (barring transport of certain products
related to bee keeping); Ariz. Rev. Stat. § 3-209 (barring the transport
of quarantined produce); Ariz. Rev. Stat. § 13-3102 (barring transport
of prohibited weapons); Cal. Bus. & Prof. Code § 17533.9 (barring
transport of teargas); Cal. Fish & Game Code § 4800 (barring the
transport of mountain lions); N.Y. Penal Law § 190.50 (barring trans-
port of slot machines or other gambling devices). See also note 1, supra.
18
such substances from markings or labels, the First Circuit
effectively prevents the states from controlling these
substances. There is no other manner to effectively regu-
late delivery sales of dangerous substances to children.
Certainly, the First Circuit does not identify any. The
appeals court’s decision prevents states from controlling
the third-party delivery of such substances, a result
having grave consequences for the public health and
nowhere suggested by Congress.
“[Tlobacco use, particularly among children and
adolescents, poses perhaps the single most significant
threat to public health in the United States.” Federal Drug
Administration v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 161 (2000). Although there is no comprehensive
federal tobacco delivery law, every state bans the sale of
tobacco to children. Moreover, as this Court recognized in
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 552 (2001),
“there is an established congressional policy that supports”
state laws prohibiting cigarette sales to minors; “Congress
has required States to prohibit tobacco sales to minors as a
condition of receiving federal block grant funding for
substance abuse treatment activities.” The Lorillard Court
pointed to the 1992 Synar Amendment, Pub. L. No. 102-
321, Title II, § 202, 106 Stat. 394, which conditions the
receipt of federal block grant funding for substance abuse
treatment activities on states’ enactment and effective
enforcement of laws covering the sale and distribution of
tobacco by “any manufacturer, retailer, or distributor.” The
Synar Amendment specifically mandates that the states
“reduce the extent to which tobacco products are available
to individuals under the age of 18.” 42 U.S.C. § 300x-
26(a)(1) & (bX1). While striking down certain aspects of
the Federal Cigarette Labeling and Advertising Act, 15
19
U.S.C. § 1334(b), the Court approved of state laws that
regulate the “sale and distribution of tobacco products” to
children, and emphasized that “States and localities also
have at their disposal other means of regulating conduct to
ensure that minors do not obtain cigarettes.” 533 U.S. at
552.
“The presumption against federal pre-emption of a
state statute designed to foster public health, has special
force when it appears ... that the two governments are
pursuing ‘common purposes.’” See Pharmaceutical Re-
search & Mfrs. of Am. v. Walsh, 538 U.S. 644, 666 (2003)
(citations omitted). There is no doubt that the federal and
state governments have a common purpose in dealing with
youth access to tobacco, and that Congress has left and
encouraged that regulation to the states.
While the First Circuit stated that the “FAAAA and
Synar Amendment can exist harmoniously because the
states may pass laws to curb underage smoking without
passing laws ‘related to’ carrier prices, routes, or services,”
even that court recognized the “tension” and “practical”
difficulties of its decision. (App. 28-29). By striking down
the Maine law requiring telephone and internet retailers
to use a carrier that provides age verification and signa-
ture services, the decision all ws those retailers to avoid
age verification requirements otherwise applicable to over-
the-counter retailers. And the decision purports to allow
states to prevent carriers from knowingly delivering
tobacco, but prevents the states from imputing knowledge
to the carriers from tobacco markings or labels on a
package, the only identified means to proving knowing
delivery. The appeals court’s decision is unworkable and
allows telephone and internet retailers to circumvent state
law by utilizing carriers to deliver contraband to minors.
20
The First Circuit decision thus draws into question
the underpinnings of this Court’s recent holding in Gran-
holm v. Heald, 544 U.S. 460 (2005). There, the Court
struck down certain state laws regulating youth access to
alcohol as discriminatory against out-of-state businesses
under the Commerce Clause. In doing so, the Court
explained that “the States can take less restrictive steps to
minimize the risk that minors will order wine by mail. For
example, the Model Direct Shipping Bill developed by the
National Conference of State Legislatures requires an
adult signature on delivery and a label so instructing on
each package.” Id. at 490-91. These requirements are
similar to those struck down by the First Circuit. It would
be a curious result indeed if the sort of “less restrictive”
state public health regulations relied upon in Granholm
are, in fact, preempted under the FAAAA.
Il. THE FIRST CIRCUIT’S PREEMPTION ANALY-
SIS IS INCORRECT AND NOT CONSISTENT
WITH THIS COURT’S DECISIONS.
The First Circuit’s decision conflicts with this Court’s
holdings which give a practical meaning to otherwise
boundless “relate to” preemption language. This Court's
approach honors the intent of Congress when considering
the scope of its preemption of states’ police powers. The
First Circuit’s decision, by contrast, rests upon a broad
reading of “related to” that effectively swallows up state
contraband delivery laws — even though Congress did not
manifest any intent, let alone a clear one, to preempt
states’ health-related police powers. The First Circuit
should have looked directly at the intent of Congress, as
identified by this Court, that only state economic laws
regulating carriers are preempted by the FAAAA. See City
21
of Columbus, 536 U.S. at 441. Congress did not intend to
preempt any and all traditional state public health laws
that happen to have some effect on the uniformity or
economic profitability of carriers.
The FAAAA language that preempts state laws
“related to a price, route, or service,” 49 U.S.C.
§§ 14501(c)(1), 41713(b)(4)(A), on its face is of the same
limitless breadth as that found in ERISA that preempts
state laws “insofar as they ... relate to any employee
benefit plan,” 29 U.S.C. § 1144(a). But the Court has
explained in the context of ERISA that the term “relate to”
is “unhelpful” and “frustrating,” requiring resort to the
objectives of the federal legislation. New York State Con-
ference of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645, 656 (1995). The term “relate to” cannot
be taken “to extend to the furthest stretch of its indeter-
minacy,” or else “for all practical purposes pre-emption
would never run its course.” Jd. at 655; see also California
Div. of Labor Standards Enforcement v. Dillingham
Construction, Inc., 519 U.S. 316, 335 (1997) (Scalia, J.,
concurring) (“as many a curbstone philosopher has ob-
served, everything is related to everything else.”). Under
such circumstances, the “preemption claims turn on
Congress’ intent,” not the literal application of “relate to.”
Travelers, 514 U.S. at 655. The First Circuit, however,
specifically chose not to apply this common sense approach
to similar preemption language in the FAAAA, stating
quite clearly that it is up to the Supreme Court, and not
the First Circuit, to do so. (App. 16). The Court should
take the opportunity to do so here.
Just as there is “nothing in the language of [ERISA]
or the context of its passage indicat[ing] that Congress
chose to displace general health care regulation, which
22
historically has been a matter of local concern,” Travelers,
514 U.S. at 661, so too there is nothing in the language or
context of the FAAAA’s passage suggesting Congress
enacted that law to displace state contraband delivery
laws. As noted by this Court, the FAAAA was intended to
preempt “the State’s economic authority . . . , ‘not restrict’
the preexisting traditional police power over” safety, City
of Columbus, 536 U.S. at 439, and obviously public health
as well. The conferees referred to this Court’s decision in
Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992),
which dealt with similar “relating to” language in the
Airlines Deregulation Act (ADA), 49 U.S.C. § 1305(a)(1), as
setting forth the level of preemption, but in subsequent
pages the conferees repeatedly explained that preemptive
effect related to “economic” regulations. H.R. Conf. Rep.
No. 103-677, at 83, 84, 86-88 (1994), reprinted in 1994
U.S.C.C.A.N. 1715, 1755, 1756, 1258-60. The report went
on to explain that the committee’s intent was not to
preempt state authority to regulate such areas as safety
and hazardous material, which is only a “partially identi-
fied,” not “all inclusive” list, so long as the state regulation
is not a “guise for ... economic regulation.” H.R. Conf.
Rep. No. 103-677, at 83, 84 (1994), reprinted in 1994
U.S.C.C.A.N. 1715, 1755, 1756. Regulation in such areas
“is not a price, route or service and thus is unaffected.”
H.R. Conf. Rep. No. 103-677, at 85 (1994), reprinted in
1994 U.S.C.C.A.N. 1715, 1757. Finally, the conferees noted
that several states, including Maine, had none of the
problematic laws that were intended to be preempted,
H.R. Conf. Rep. No. 103-677, at 86, reprinted in 1994
U.S.C.C.AN. at 1757, 1758. At that time, Maine had
numerous contraband delivery laws on the books. See note
1, supra.
23
Thus, it is clear that when it used the broad phrase
“related to a price, route, or service,” Congress did not
intend it to be applied literally - and boundlessly — to
preempt state public health laws regulating retailers and
carriers regarding delivery of dangerous substances such
as tobacco. This Court already has approved of state laws
regulating the sale and distribution of tobacco to children,
Lorillard, 533 U.S. at 552, 571, and state laws requiring
adult signature and identifying markings for the delivery
of alcohol, Granholm v. Heald, 544 U.S. at 490. So long as
the state law is not intended to regulate the economics of
the carriers, such as setting rates or establishing tariffs,
there is no preemption under the FAAAA.
Had the First Circuit applied the correct analysis in
this case, it would have found that none of the provisions
of Maine law at issue were preempted. Section 1555-
C(3)(C) requires retailers to use a delivery carrier that
provides age verification and signature services in order to
prevent delivery of tobacco to children. First, these are not
economic regulations — they are intended only to protect
the health of children — and therefore are not embraced by
the FAAAA’s “related to” language. Moreover, this provi-
sion does not require a carrier to do anything — it merely
requires that a retailer use a service that is provided by
carriers. As noted, the only carrier to present record
evidence, UPS, stated that it offers a type of delivery
confirmation, adult-signature-required service, for an
additional nominal fee of either $1.75 or $2.75. All section
1555-C(3)(C) requires, therefore, is that retailers use a
carrier that chooses to provide the required service. It is
difficult to see how that regulates the “service” provided by
carriers.
24
The First Circuit’s decision appears to be founded on
the notion that this regulation of retailers somehow
coerces rival carriers to compete to provide such options,
and therefore is “related to” a service. (App. 24). Such a
boundless reading of a “related to” preemption provision is
precisely what this Court rejected in the ERISA line of
cases. Its effect, as a practical matter, is to eliminate any
state ability to control how retailers deliver tobacco,
alcohol and other substances, a result clearly at odds with
pronouncements of this Court and the intent of Congress.
The First Circuit’s holding regarding section 1555-D
fares no better. On the one hand, the court found that the
first part of section 1555-D — which prohibits the knowing
delivery of tobacco — is not preempted because that could
not possibly have been the intent of Congress. (App. 25-
27). On the other hand, the court held that the Maine
provision imputing knowledge to a carrier from tobacco
markings and labels — the only identified means to estab-
lish a knowing delivery — is preempted. (Jd. at 27-28). The
appeals court acknowledged the “tension” in its decision
and the “practical” difficulties for the State to prove its
case. (Id. at 28-29). Simply put, if a State cannot impute
knowledge to a carrier from a tobacco marking or label —
even though UPS stated that it already checks the outside
of packages for other markings, labels and signs of damage
~ the “practical” difficulties of enforcing Maine's law are in
reality insurmountable.
If the First Circuit were true to its reading of “related
to,” it would have struck down the first part of section
1555-D as well, but even that court realized Congress
could not have intended to bar the states from controlling
contraband. Instead, the appeals court upheld in theory a
state’s authority to regulate delivery of tobacco, but struck
25
down the only means to exercise that authority. As that
authority rests upon the state’s health-related police
powers, and not economic regulation, the appeals court
decision not only is unworkable but is in direct contraven-
tion of this Court’s holdings and Congress’ intent.
III. THE FIRST CIRCUIT’S DECISION IS INCON-
SISTENT WITH THE DECISIONS OF OTHER
COURTS OF APPEALS AS WELL AS LOWER
COURTS.
The First Circuit’s view of FAAAA preemption is
markedly at odds with that of the Ninth and Second
Circuits, as well as several lower courts. In Californians
for Safe & Competitive Dump Truck Transp. v. Mendonca,
152 F.3d 1184 (9th Cir. 1998), cert. denied, 526 U.S. 1060
(1999), the Ninth Circuit concluded that certain California
prevailing wage laws, which were alleged to increase
prices by 25 percent and to compel rerouting of equipment,
were not preempted by the FAAAA. Plaintiffs argued that
the FAAAA preempted the state prevailing wage law
because it “directly affects, and therefore is ‘related to’ the
prices, routes, and services of” plaintiffs. Jd. at 1189. The
Ninth Circuit found that California’s wage laws were
“state action in a field long regulated by the states,” and
do not “fall{) into the ‘fields of laws’ regulating prices,
routes, or services,” finding that nowhere in the FAAAA is
there any “mention of Congress’s intent to occupy the field
of general prevailing wage laws.” Jd. at 1189 & n.6. Obvi-
ously, the First Circuit takes the opposite view of the
FAAAA - although there is no mention of a Congressional
intent to preempt state public health laws, the appeals
court held that such an intent is presumed from the
“related to” language.
26
In reviewing the legislative history, the Ninth Circuit
noted that Congress identified 41 jurisdictions “which
regulated intrastate prices, routes and services, followed
by ten jurisdictions which did not regulate in those areas.”
Id. at 1187, relying upon H.R. Conf. Rep. 103-677, at 86
(1994), reprinted in 1994 U.S.C.C.A.N. at 1758. Seven of
the latter ten jurisdictions, including Maine, had prevail-
ing wage laws at the time of FAAAA’s enactment. /d. at
1187 & n.3. The appeals court found this constitutes
“indirect evidence that Congress did not intend to prevent”
prevailing wage laws, a “perception reinforced by the
absence of any positive indication in the legislative history
that Congress intended preemption in this area of tradi-
tional state power.” Jd. at 1188. Similarly, Maine was
identified by the conferees as a state with no problematic
laws; although Maine had substance delivery laws on the
books when the FAAAA was enacted (see note 1, supra),
the First Circuit ignored this key consideration.
The appeals courts also disagree regarding the inter-
play between the interpretations of the similar “related to”
preemption language of the FAAAA, Airline Deregulation
Act (“ADA”), and ERISA. The Ninth Circuit read Morales
and American Airlines, Inc. v. Wolens, 513 U.S. 219, 234-
35 (1995), both of which dealt with the ADA, as not estab-
lishing a rigid and boundless rule of preemption, and
incorporated into its FAAAA analysis this Court's practical
approach toward preemption found in subsequent ERISA
cases “to preserve the proper and legitimate balance
between federal and state authority.” Mendonca, 152 F.3d
at 1188-89. The First Circuit read Morales and Wolens as
requiring courts only to “focus ... on the effect that the
state law has on ... operations,” and, as noted previously,
27
specifically declined to apply this Court’s ERISA analysis
to the FAAAA. (App. 15-20).
Subsequently, in Ace Auto Body & Towing, Ltd. v. City
of New York, 171 F.3d 765 (2d Cir. 1999), the Second
Circuit dealt with the scope of the FAAAA’s tow truck
exception to preemption, deciding that certain New York
City towing regulations were not preempted by the
FAAAA. That appeals court, like the Ninth Circuit, began
with the basic proposition that a state’s historic police
powers are not superseded unless that was the “clear and
manifest purpose of Congress.” Id. at 771. The Second
Circuit found that FAAAA preempts economic regulation,
and applied the “common sense” approach towards pre-
emption from its ERISA cases. Id. at 773-74. Again, the
First Circuit takes the opposite approach.
Three lower courts have directly found tobacco con-
traband and delivery laws not to be preempted by the
FAAAA. In New York State Motor Truck Assoc. v. Pataki,
2004 U.S. Dist. Lexis 25519 (S.D. N.Y. 2004), the court
rejected a claim that the FAAAA facially preempted New
York’s law mandating, inter alia, that if the carrier trans-
ported cigarettes to a home or residence, the carrier is
presumed to know that such person was not a statutorily
authorized recipient. In Ward v. New York, 291 F. Supp. 2d
188 (W.D. N.Y. 2003), brought by tobacco retailers and
manufacturers, the court denied a motion for a temporary
restraining order against enforcement of that law, conclud-
ing plaintiffs’ FAAAA preemption claim was not likely to
succeed. The courts concluded that Congress -was con-
cerned with “state economic regulation,” not public health
laws. Pataki, 2004 U.S. Dist. Lexis 25519, at *16; Ward,
291 F. Supp. 2d at 209-10. The Pataki court put it best,
holding “there is nothing within the body of the federal
28
law or in the legislative history suggesting Congress
intended to usurp the states’ power to regulate the manner
in which cigarettes are shipped into their borders in order
to protect their citizenry from the pernicious effects of
tubacco which negatively impacts on the states’ economy.”
Pataki, 2004 U.S. Dist. Lexis 25519, at *21.
Finally, in Robertson v. State of Washington Liquor
Control Board, 10 P.3d 1079 (Wash. App. Ct. 2000), the
court rejected a claim that Washington’s law governing the
forfeiture of unstamped cigarettes was preempted by the
FAAAA. Using reasoning similar to that of the New York
district courts, the Washington court upheld the Washing-
ton law even though it did have an impact on the use of
plaintiff ’s truck to haul contraband cigarettes, noting that
if the FAAAA preempted state laws prohibiting the “ser-
vice” of transporting contraband, “a motor carrier would be
exempt from forfeiture for transporting a methampheta-
mine lab, poached game, or contraband cigarettes.” Jd. at
858. The First Circuit’s decision draws that obvious and
correct conclusion into question.
Sd
29
CONCLUSION
The petition for writ of certiorari should be granted.
Respectfully submitted,
G. STEVEN ROWE
Attorney General
PAUL STERN
Deputy Attorney General
(Counsel of Record)
MELISSA REYNOLDS O’DEA
PETER B. LAFOND
CHRISTOPHER C. TAUB
Assistant Attorneys General
Six State House Station
Augusta, ME 04333-0006
(207) 626-8568
Counsel for Petitioner
App. 1
NEW HAMPSHIRE MOTOR TRANSPORT
ASSOCIATION; MASSACHUSETTS MOTOR
TRANSPORTATION ASSOCIATION, INC.;
VERMONT TRUCK & BUS ASSOCIATION, INC.,
Plaintiffs, Appellees, v.G. STEVEN ROWE, in his
official capacity as Attorney General for the State
of Maine, Defendant, Appellant.
No. 05-2136.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
448 F.3d 66; 2006 U.S. App. LEXIS 12264
May 19, 2006, Decided
COUNSEL: Paul Stern, Deputy Attorney General, with
whom G. Steven Rowe, Attorney General, Melissa Rey-
nolds O’Dea, Peter B. LaFond, and Christopher C. Taub,
Assistant Attorneys General, Office of the Attorney Gen-
eral, were on brief, for appellant.
Ruth N. Borenstein, with whom Paul T. Friedman, Law-
rence R. Katzin, Morrison & Foerster LLP, Michael A.
Nelson and Jensen Baird Gardner & Henry, were on brief,
for appellees.
JUDGES: Before BOUDIN, Chief Judge, STAHL, Senior
Circuit Judge, and HOWARD, Circuit Judge.
OPINION BY: HOWARD
OPINION:
HOWARD, Circuit Judge. In 2003, Maine enacted a
law to restrict and regulate the sale and delivery of tobacco
products purchased via the internet or other electronic
means. Several trade associations, representing air and
motor carriers of property, brought this action against the
App. 2
Maine Attorney General alleging that certain provisions of
this law are preempted by the Federal Aviation Admini-
stration Authorization Act of 1994 (FAAAA). The district
court granted summary judgment for the associations and
enjoined Maine’s Attorney General from enforcing the law.
We affirm in all respects but one.’
I.
A. The FAAAA
There are two FAAAA preemption provisions at issue
in this case. See Pub. L. No. 103-305, § 601; 108 Stat.
1569. The first provides that a “State ... may not enact or
enforce a law . . . related to a price, route, or service of any
motor carrier ... with respect to the transportation of
property.” 49 U.S.C. § 14501(c)(1). The second states that a
“State may not enact or enforce a law . .. related to a price,
route, or service of an air carrier or carrier affiliated with a
direct air carrier through common controlling ownership
when such carrier is transporting property by aircraft or by
motor vehicle. . . .” 49 U.S.C. § 41713(b)(4)(A).
These provisions combine to bar states (subject to
certain exceptions discussed later) from enacting laws
related to prices, routes, or services of air or motor carriers
of property. They are “intended to function in the exact same
manner with respect to [their] preemptive effects.” H.R.
Conf. Rep. 103-677 at 85, reprinted in 1994 U.S.C.C.A.N. at
1757.
' We are grateful for the amicus curiae briefs filed by several state
attorneys general, the American Trucking Association, the Federal
Express Corporation and the United States Chamber of Commerce.
App. 3
B. The Maine Tobacco Delivery Law
In 2003, the Maine Legislature adopted “An Act to
Regulate the Sale of Tobacco Products and to Prevent the
Sale of Cigarettes to Minors.” See L.D. 1236 (121st Maine
Leg.) (codified at 22 M.R.S.A. §§ 1551, 1555-C & 1555-D)
(Tobacco Delivery Law). The Tobacco Delivery Law was
prompted by the recent increase in internet tobacco sales
which are consummated by direct delivery to consumers
through the mail or by commercial carriers. See Testimony
of Representative Glen Cummings Before the Joint Stand-
ing Committee on Health & Human Services (Apr. 29,
2003). This phenomenon has complicated Maine’s efforts
to regulate “the sale of tobacco products to minors” and
caused it to lose “tremendous tax revenues as a result of
tax free sales by unlicensed companies.” Jd. The associa-
tions persuaded the district court that §§ 1555-C(3)(C) &
1555-D are preempted by the FAAAA.
1. § 1555-C(3)(C)
Maine’s Tobacco Delivery Law permits a licensed
tobacco retailer to sell tobacco products’ directly to con-
sumers via the internet or other electronic means so long
as the retailer takes specified steps to ensure that sales
are not made to minors. See id. §§ 1555-C(2) & (3). One
such step requires the retailer to use a carrier that will
ensure that: (1) the purchaser of the tobacco products is
the same person as the addressee of the package; (2) the
* Tobacco products are broadly defined to include “any form of
tobacco and any material or device used in the smoking, chewing, or
other form of tobacco consumption, including cigarette papers and
pipes.” 22 M.R.S.A. § 1551(3).
App. 4
addressee is of legal age to purchase tobacco products and
sign for the package; and (3) if the addressee is under 27
years of age, that she show a valid government-issued
identification verifying that she is old enough to purchase
tobacco products. Id. § 1555-C(3)(C). Penalties are imposed
only against the retailer for violations of this provision.
See id. §§ 1555-C(3)(E) & (F).
2. § 1555-D
Section 1555-D makes it illegal for any person to
knowingly deliver tobacco products to a Maine consumer if
the products were purchased from an unlicensed retailer.’
The section also states that a person delivering a package
“is deemed to know” that the package contains tobacco
products if it (1) so indicates on any side other than the
side directly opposite the label, see Code of Me. R. ch. 203,
§ 11, or (2) was shipped by a person listed by the Attorney
General as an unlicensed tobacco retailer.*
C. The Effect of the Tobacco Delivery Law on
United Parcel Service (UPS)
As discussed in further detail below, one way for the
associations to prove that the challenged provisions of the
Tobacco Delivery Law are preempted by the FAAAA is to
demonstrate that they have a forbidden significant effect
* It does not, however, bar the delivery of tobacco products pur-
chased from an unlicensed retailer to a licensed tobacco retailer or
distributor operating in Maine. See id.
‘ The Attorney General maintains a list of unlicensed tobacco
retailers that he distributes to carriers operating in Maine. 22 M.RS.A.
§ 1555-D (2).
App. 5
on carrier services. See infra at 25. The associations have
attempted to make this showing by highlighting the effect
of the challenged provisions on UPS, a motor/air carrier of
property operating in Maine.’
UPS, which delivers approximately 65,000 packages
per day in Maine, offers door-to-door delivery service of
packages and delivery of packages on an express basis. Its
delivery operations function as an integrated system,
requiring extensive planning and coordination among its
operating facilities and ground and air fleet. Delays and
disruptions in the sorting and delivery of packages can
affect the timely delivery of thousands of packages within
the UPS system.
Prior to the enactment of § 1555-C(3)(C), UPS did not
require that its drivers deliver a package only to the
addressee, and it did not require a signature from the
recipient of the package unless the shipper paid a pre-
mium for this additional service. UPS determined that it
would not be feasible to alter its delivery operations to
provide these new services in Maine, so it stopped deliver-
ing all tobacco products to Maine consumers.
To make deliveries of tobacce products to licensed
retailers and distributors in Maine as permitted by § 1555-
D, UPS now has modified its uniform package delivery
procedures to identify packages that contain tobacco
products. UPS requires that its preloaders in Maine (the
employees who place the packages on the trucks for
delivery) specially examine each package to determine if it
* While the associations rely on UPS’ experience to prove that the
Tobacco Delivery has a forbidden significant effect on carriers, UPS is
not a party to this action.
App. 6
is marked as containing tobacco or if the name of the
addressee or shipper indicates that the package likely
contains tobacco.‘ Packages identified as likely containing
tobacco products are then segregated so that UPS employ-
ees can research whether the package is destined for a
licensed tobacco retailer or distributor. If UPS determines
that the addressee is not a licensed tobacco retailer or
distributor, it arranges to return the package to the
shipper or otherwise to dispose of the package.
D. The District Court Decision
Proceeding from the premise that the FAAAA pre-
empts a state law if it “expressly references” a carrier’s
prices, routes, or services or has a “forbidden significant
effect” on the same, the district court concluded that the
challenged provisions of the Tobacco Delivery Law are
preempted by the FAAAA. See N.H. Motor Transp. Ass’n v.
Rowe, 377 F.Supp. 2d 197, 210 (D. Me. 2005) (citing
United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323,
334-35 (1st Cir. 2003) (UPS I). The court determined that,
while § 1555-C(3C) did not expressly reference carrier
services because that section is directed only at retailers of
tobacco products, it has a forbidden significant effect on
UPS because, for the carrier to accept packages containing
tobacco for delivery in Maine, it would have to adopt
procedures that would “alter [its] delivery practices” for
these packages. /d. at 216.
* UPS does not cross-reference packages against the Attorney
General’s list to determine if the shipper is listed as an unlicensed
tobacco retailer.
App. 7
The court also ruled that § 1555-D both expressly
references and has a forbidden significant effect on carrier
services. It concluded that the provision expressly refer-
ences services because it prohibits carriers from delivering
a certain class of tobacco products, i.e., tobacco products
purchased by Maine consumers from unlicensed retailers.
See id. at 211-12. It also concluded that the provision also
has a forbidden significant effect because it forced UPS to
depart from “its nationally uniform procedure” by inspect-
ing each package to identify the contents. Jd. at 212. The
Attorney General timely appealed from this ruling.’
II.
. A. Jurisdiction
Before reaching the merits of the Attorney General’s
appeal, we consider two threshold jurisdictional issues.
The Attorney General asserts that the associations lack
standing and that the action is moot in light of events
occurring subsequent to the noticing of the appeal.
1. Standing
The associations invoke the representational standing
doctrine recognized by the Supreme Court in Hunt v.
Washington State Apple Adver. Comm’n, 432 U.S. 333, 343,
97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). Under this doc-
trine, “an association has standing to bring suit on behalf
* The district court found that another section of the Tobacco
Delivery Law, which requires the shipper of tobacco products to inform
the carrier of the age of the purchaser, was not preempted. Jd. at 217
(citing 22 M.R.S.A. § 1555-C(3)A)). The associations have not cross-
appealed from this ruling.
App. 8
of its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the interests it
seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested
requires the participation of individualized members in
the lawsuit.” Id.
The Attorney General focuses his argument on the
third Hunt factor. He contends that evidence concerning
the effect that the challenged provisions of the Tobacco
Delivery Law have on UPS suffices only to justify preemp-
tion of the challenged provisions as to UPS. Preemption
against other carriers should occur only to the extent that
the other carriers individually prove that the challenged
provisions have a forbidden significant effect on their
prices, routes, or services.
The district court rejected this argument, observing
that “la]ssociational standing is ... granted in cases
seeking injunctive relief rather than damages, because
individualized proof is not necessary and the relief usually
inures to the benefit of all members injured.” N.H. Motor
Transp. Ass’n v. Rowe, 324 F. Supp. 2d 231, 236 (D. Me.
2004). Because the associations only sought an injunction
and a declaratory judgment against the challenged provi-
sions, the court ruled that the third Hunt factor was
satisfied. See id. at 236 (citing Playboy Enters., Inc. v. Pub.
Serv. Comm’n of P.R., 906 7.2d 25, 35 (1st Cir. 1990)).
After the district court issued this ruling, we clarified
the requirements for establishing the third Hunt factor. In
so doing, we acknowledged that “there is no well developed
test in this circuit as to how the third prong of the Hunt
test .. . applies in cases where injunctive relief is sought.”
Pharmaceutical Care Mgmt. Ass’n v. Rowe, 429 F.3d 294,
App. 9
313-14 (1st Cir. 2005). But we did not embrace the proposi-
tion that, under Playboy Enters. the third Hunt factor is
always satisfied where an association seeks injunctive
relief on behalf of all of its members. See Rowe, 429 F.3d at
314 (“Playboy is not an open door for association standing
in all injunction cases where member circumstances differ
and proof of them is important.”). We concluded that
representational standing is inappropriate if adjudicating
the merits of an association’s claim requires the court to
engage in a “fact-intensive-individual inquiry.” Jd. (quoting
Penn. Psychiatric Soc. v. Green Spring Health Servs., Inc.,
280 F.3d 278, 287 (3d Cir. 2002)). We therefore turn to
whether the associations’ preemption claim requires a
sufficiently fact-intensive inquiry to preclude representa-
tional standing.
The FAAAA provides that a state law is preempted if it
relates to the prices, routes, or services of “any motor carrier”
or “an air carrier.” 49 U.S.C. §§ 14501(c) & 41713(b)(4)(A)
(emphases supplied). “Any” means “one ... of whatever
kind,” and “an” means “one.” Merriam Webster’s Collegiate
Dictionary at 40, 53 (10th ed.2001). The language of the
FAAAA accordingly suggests that, if a state law is pre-
empted as to one carrier, it is preempted as to all carriers.”
See N.H. Motor Transp. Ass’n, 377 F. Supp. 2d at 219. Such
a reading accords with one of the FAAAA’s central pur-
poses: to establish a “level playing field” among carriers.
H.R. Conf. Rep. 103-677 at 85, reprinted in 1994
U.S.C.C.A.N. at 1757; see Californians for Safe Dump
* Even if “an” as used in § 41713(b\(4)(A) is ambiguous, “any” as
used in § 14501(c) is clear, and Congress has emphasized that these
provisions were intended to “function in the exact same manner.” H.R.
Conf. Rep. 103-677 at 85, reprinted in 1994 U.S.C.C.A.N. at 1757.
App. 10
Truck Transp. v. Mendonca, 152 F.3d 1184, 1187 (9th Cir.
1998). If preemption were judged on a carrier-specific
basis, the result would be a “patchwork” of state laws
applying to some carriers and not to others, depending on
which carriers proceeded to litigation. H.R. Conf. Rep. 103-
677 at 87 reprinted in 1994 U.S.C.C.A.N. at 1759. Such a
result would undermine Congress’ goal of encouraging
uniformity in carrier regulation. Thus, the associations
can prevail by establishing that the challenged provisions
of the Tobacco Delivery Law have a forbidden significant
effect on one carrier. The district court correctly ruled that
the associations have standing to press their preemption
claim. See Rowe, 429 F.3d at 314.”
2. Mootness
After the district court granted summary judgment,
UPS settled an enforcement action brought by the New
York Attorney General under a New York law restricting
the ability of carriers to deliver cigarettes to consumers.
See N.Y. Pub. Health Law § 1399-11(2) (McKinney 2001). In
that settlement, UPS promised to stop “shipping cigarettes
to individual consumers in the United States while still
permitting lawful shipments of cigarettes to licensed
tobacco businesses.” To fulfill this promise, UPS agreed (1)
to identify all shippers that may be cigarette retailers and
* The Attorney General also argues that representational standing
should not be allowed because “the increased use of [representational]
standing by large businesses [makes] the defense of suits ... more
difficult by controlling discovery and access to information.” We do not
foreclose the possibility that representational standing may be im-
proper in a particular case because of some hardship imposed on a
defendant in conducting discovery. But the Attorney General has not
attempted to demonstrate such a hardship here.
App. 11
advise them that UPS will not accept cigarettes for deliv-
ery to consumers; (2) to discipline shippers that violate
UPS's non-delivery policy; (3) to impose measures to
ensure that employees “actively” look for indications that a
package contains cigarettes; and (4) to instruct drivers not
to deliver cigarette packages to consumers.
The Attorney General argues that, as a result of the
settlement, this appeal has become moot, the judgment
should be vacated and the case should be dismissed. See
Duke Power Co. v. Greenwood County, 299 U.S. 259, 267,
57 S. Ct. 202, 81 L. Ed. 178 (1936) (stating that where a
case becomes moot while on appeal, the appellate court
must set aside the judgment and remand the case with
instructions that it be dismissed). He contends that, by
agreeing not to deliver cigarettes directly to consumers
throughout the United States and directing employees
actively to look for cigarettes, UPS is no longer affected by
the Tobacco Delivery Law.
Article III considerations require that an actual case
or controversy exist between the parties throughout the
course of litigation. See Ramirez v. Sanchez Ramos, 438
F.3d 92, 100 (1st Cir. 2006). A case must be dismissed as
moot “if, at some time after the institution of the action,
the parties no longer have a legally cognizable stake in the
outcome.” Goodwin v. C.N.J., Inc., 436 F.3d 44, 46 (1st Cir.
2006). This rule applies even where the case becomes moot
while pending on appeal. See Great Western Sugar Co. v.
Nelson, 442 U.S. 92, 93, 99 S. Ct. 2149, 60 L. Ed. 2d 735
(1979) (per curiam). But “[t]he burden of establishing
mootness rests squarely on the party raising it, and the
burden is a heavy one.” Mangual v. Rotger-Sabat, 317 F.3d
45, 60 (1st Cir. 2003) (citation omitted). To establish moot-
ness, the party raising it must show that the court cannot
App. 12
grant any “effectual relief whatever” to its opponent.
Church of Scientology of Cal. v. United States, 506 U.S. 9,
12, 113 S. Ct. 447, 121 L. Ed. 2d 313 (1992).
The Attorney General has not met this heavy burden.
The New York settlement agreement applies only to the
delivery of cigarettes, but the Tobacco Delivery Law
applies to “any form of tobacco and any material or device
used in the smoking, chewing or other form of tobacco
consumption.” 22 M.R.S.A. § 1551-3. UPS could therefore
adhere to the terms of the settlement agreement and
nevertheless violate the Tobacco Delivery Law by unlaw-
fully delivering non-cigarette tobacco products. Because
enjoining the challenged provisions would permit UPS to
deliver all tobacco products, effectual relief remains
available.
B. Preemption
We turn now to the merits of the district court’s
preemption ruling. We review the ruling de novo, consider-
ing the record and all reasonable inferences in the light
most favorable to the Attorney General. See Mullin v.
Raytheon Co., 164 F.3d 696, 698 (1st Cir. 1999). We may
affirm on any ground revealed by the record. See Houlton
Citizens’ Coalition v. Houlton, 175 F.3d 178, 183-84 (1st
Cir. 1999).
The Attorney General presents two arguments for
reversal. First, he contends that the FAAAA does not
preempt state laws enacted pursuant to a state’s police
power to protect the health and welfare of its citizens. The
Attorney General asserts that the FAAAA preempts only
state laws that impose traditional economic regulation on
carriers — e.g. entry and commodity controls, tariff filing
App. 13
requirements, and price ceilings. Because the Tobacco
Delivery Law does not impose such traditional economic
restrictions, the Attorney General argues that the FAAAA
does not apply. Alternatively, the Attorney General con-
tends that, even if the Act applies, neither challenged
provision is “related to” carrier services within the mean-
ing of the FAAAA.
1. Applicability of the FAAAA to a State’s
Police-Power Enactments
A fundamental tenet of our federalist system is that
constitutionally enacted federal law is supreme to state
law. See U.S. Const. Art. VI. cl. 2. As a result, federal law
sometimes preempts state law either expressly or by
implication. See Gade v. Nat’l Solid Wastes Mgmt. Ass’n,
505 U.S. 88, 98, 112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992).
“Express preemption occurs when Congress has unmis-
takably ... ordained that its enactments alone are to
regulate a , oujuet and state laws regulating that subject
must fall.” Mass. Ass’n of Health Maintenance Organiza-
tions v. Ruthardt, 194 F.3d 176, 179 (1st Cir. 1999) (cita-
tion omitted). In every preemption case, “the purpose of
Congress is the ultimate touchstone.” Medtronic, Inc. v.
Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 135 L. Ed. 2d 700
(1996). The primary focus is on the “plain wording” of the
statute because the text “contains the best evidence of
Congress’ pre-emptive intent.” Sprietsma v. Mercury
Marine, 537 U.S. 51, 62, 123 S. Ct. 518, 154 L. Ed. 2d 466
(2002). But “[allso relevant is the structure and purpose of
the statute as a whole as revealed . . . through the reviewing
court’s reasoned understanding of the way in which Congress
intended the statute and its surrounding regulatory scheme
App. 14
to affect business, consumers and the law.” Medtronic, 518
U.S. at 486.”°
We begin with the text. As mentioned above, the
FAAAA prohibits states from enacting laws “related to a
price, route, or service” of a carrier. 49 U.S.C. §§ 14501(c)
& 41713(b\4\A). This language was patterned after the
preemption provision of the Airline Deregulation Act of
1978. See H.R. Conf. Rep. 103-677 at 85, reprinted in 1994
U.S.C.C.A.N. 1757, 1759; Mendonca, 152 F.3d at 1184;
Desardouin v. United Parcel Serv., Inc., 285 F. Supp. 2d
153, 162 (D. Conn. 2003). Therefore, in addition to cases
interpreting the FAAAA, we look to cases interpreting the
Airline Deregulation Act. UPS I, 318 F.3d at 335-36;
Mastercraft Interiors, Ltd. v. ABF Freight Sys., Inc., 284
F. Supp. 2d 284, 287 (D. Md. 2003).
The parties devote a great deal of argument to whether we
should conduct our preemption analysis with a presumption against
preemption because the state law at issue was enacted to further
Maine’s police-power interest. See Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947) (stating that a
preemption analysis starts “with the assumption that the historic police
powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress”). The
circumstances in which the presumption is to apply are not altogether
clear. Compare Medtronic, 518 U.S. at 485 (stating that the presump-
tion against preemption applies “in all preemption cases”) with United
States v. Locke, 529 U.S. 89, 108, 120 S. Ct. 1135, 146 L. Ed. 2d 69
(2000) (holding the presumption inapplicable where “the State legis-
lates in an area where there has been a history of significant federal
presence”). In any event, the presumption can be overcome where the
congressional purpose is sufficiently clear. See Egelhoff v. Egelhoff 532
U.S. 141, 151, 121 S. Ct. 1322, 149 L. Ed. 2d 264 (2001). For the reasons
discussed infra, we think that the congressional intent to preempt state
police-power enactments that are related to carrier prices, routes, or
services is sufficiently clear to overcome any presumption that would
apply here.
App. 15
The seminal case is Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 112 S. Ct. 2031, 119 L. Ed. 2d 157
(1992). Like the FAAAA, the version of the Airline Deregu-
lation Act considered in Morales preempted state laws
“relating to rates, routes or services of any air carrier.” ”
The Court identified “relating to” as the key phrase in
determining the breadth of the preemption provision and
concluded that the “words . . . express a broad pre-emptive
purpose.” Jd. at 383. It relied on several cases in which the
Court had interpreted a similarly-worded provision of the
Employment Retirement Security Act of 1974 (ERISA)
preempting all state laws that “relate to” an employee
benefit plan. Jd. at 384. The Morales Court emphasized
that this language had an “expansive sweep” and that it
was “conspicuous for its breadth.” Jd. In light of Congress’
use of similarly broad language, the Court concluded that
Congress intended the Airline Deregulation Act to preempt
any state law that has “a connection with or reference to
airline rates, routes, or services.” Id.
The FAAAA’s drafters were familiar with Morales and
approved of its reasoning. The Conference Committee
Report explains that “the conferees [did] not intend to
alter the broad preemption interpretation adopted by the
United States Supreme Court in Morales... .” H.R. Conf.
Rep. 103-677 at 83, reprinted in 1994 U.S.C.C.A.N. at
1755. The sweep of the FAAAA’s text and the drafters’
expressed intent to use Morales as a roadmap are strong
evidence that the FAAAA was not intended to preempt
In 1994 Congress replaced “relating” with “related” and “rates”
with “price” but did not intend these revisions to substantively change
the law. See Pub. L. No. 103-272, § 1(a); 108 Stat. 745. This provision is
currently codified at 49 U.S.C. § 41713(b)(1).
App. 16
only a narrow class of economic regulations while exclud-
ing the many laws enacted by the states under their police
powers. If Congress had such a limited purpose in mind, it
likely would have employed narrower language in fashion-
ing the FAAAA preemption provisions. Cf. Botz v. Omni
Air Intl, 286 F.3d 488, 493-94 (8th Cir. 2002) (“Although
Congress could easily have selected more restrictive
terminology to describe the type of ... enactment the
{Airline Deregulation Act] pre-empts, the provision as
written is without language that would produce a more
limited pre-emptive effect.”).
The Attorney General argues that we should disre-
gard Morales because, post-Morales, the Supreme Court
has narrowed its understanding of ERISA’s “relat[ing] to”
language. We previously rejected this identical argument:
The Secretary argues that the broad preemption
standard adopted in Morales has been overruled
by a number of Supreme Court cases narrowing
the preemptive effect of [ERISA]. While the
Morales Court undoubtedly took its interpretive
cues from the ERISA preemption jurisprudence
then in existence, it does not follow that any
change in the ERISA law necessitates a parallel
change in the law affecting . . . carriers. As Judge
Easterbrook has put it: [I]f developments in pen-
sion law have under-cut holdings in air-
transportation law, it is for the Supreme Court
itself to make the adjustments. Our marching
orders are clear: follow decisions until the Su-
preme Court overrules them.
UPS I, 318 F.3d at 335 n. 19 (quoting United Airlines, Inc.
v. Mesa Airlines, Inc., 219 F.3d 605, 608 (7th Cir. 2000)).
Absent extraordinary circumstances not present here, we
are not at liberty to disregard this ruling. See United
App. 17
States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991) (“We
have held, time and again, that in a multi-panel circuit,
prior panel decisions are binding upon newly constituted
panels in the absence of supervening authority sufficient
to warrant disregard of established precedent.”).
We look also to the FAAAA’s structure and legislative
history. The FAAAA includes a series of exceptions to the
general preemption rule. The excepted areas are:
the safety regulatory authority of a State with
respect to motor vehicles, the authority of a State
to impose highway route controls or limitations
based on the size or weight of the motor vehicle
or the hazardous nature of the cargo, or the au-
thority of a State to regulate motor carriers with
regard to minimum amounts of financial respon-
sibility relating to insurance requirements and
self-insurance authorization.
49 US.C. §§ 14501(cX2) & 41713(b)4)(BXi). The Attorney
General acknowledges that the challenged provisions of the
Tobacco Delivery Law do not fall within any of these excep-
tions. He contends, however, that these statutory exceptions
suggest broader congressional purpose to permit states to
regulate carriers to protect citizen health and safety. The
Attorney General points to a passage from the FAAAA’s
legislative history indicating that the enumerated excep-
tions were “not intended to be all inclusive,” H.R. Conf. Rep.
103-677 at 84, reprinted in 1994 U.S.C.C.A.N. at 1756, to
argue that we may establish an additional exception to
FAAAA preemption for laws enacted pursuant to a state’s
police power to protect the health and welfare of its
citizens.
We have cautioned that an overly broad interpretation
of the FAAAA exceptions “would swallow the rule of
App. 18
preemption.” United Parcel Serv., Inc. v. Flores-Galarza,
385 F.3d 9, 14 (1st Cir. 2004) (UPS II). An exclusion from
preemption for police-power enactments would surely
“swallow the rule of preemption,” as most state laws are
enacted pursuant to this authority. Jd. The exceptions
preserving the states’ authority to regulate motor vehicles
do not support the Attorney General’s argument. See id.
{rejecting an argument that the FAAAA preemption
exceptions indicate a congressional intent to preserve state
authority over safety issues generally).
While the statute’s structure does not support the
Attorney General’s police-power argument, there is some
support in the legislative history for his view that the
FAAAA preempts only state economic regulation. The
Conference Committee Report observed that “(state
economic regulation of motor carriers ... is a huge prob-
lem for national and regional carriers attempting to
conduct a standard way of doing business.” H.R. Conf.
Rep. No. 103-677 at 85, reprinted in 1994 U.S.C.C.A.N. at
1757. The conferees identified “typical forms” of harmful
regulation to include “entry controls, tariff filing, price
regulation,” and regulation of the “types of commodities
carried.” Jd. at 1758. This history led the Supreme Court
to remark that “the problem to which the [FAAAA] con-
gressional conferees attended was state economic regula-
tion.” Columbus v. Ours Garage & Wrecker Serv., 536 U.S.
424, 440, 122 S. Ct. 2226, 153 L. Ed. 2d 430 (2002). This
history, however, does not indicate that preempting eco-
nomic regulation was the FAAAA’s only purpose. And, in
any event, the legislative history cannot trump the stat-
ute’s text. See Cipollone v. Liggett Group, Inc., 505 U.S.
504, 521, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992) (declin-
ing to adopt a limited interpretation of a preemption
App. 19
provision suggested by legislative history because “the
language of the [cigarette labeling] Act plainly reaches”
further); Morales, 504 U.S. at 385 n.2. (The “legislative
history need not confirm the details of changes in the law
effected by statutory language before we will interpret
that language according to its natural meaning.”). Con-
gress often acts to address a specific problem but ulti-
mately settles on a broader remedy. See Penn. Dep't of
Corr. v. Yeskey, 524 U.S. 206, 213, 118 S.Ct. 1952, 141
L. Ed. 2d 215 (1998) (“[T]he fact that a statute can be
applied in situations not expressly anticipated by Con-
gress does not demonstrate ambiguity. It demonstrates
breadth.”).
In addition, the legislative history reveals a second
goal for FAAAA preemption which is inconsistent with the
Attorney’s General argument: “to create a completely level
playing field between air carriers . .. on the one hand and
motor carriers on the other.” H.R. Conf. Rep. 103-677 at
85, reprinted in 1994 U.S.C.C.A.N. at 1757. In other
words, the conferees intended the scope of FAAAA and
Airline Deregulation Act preemption to be coterminous.
See Ace Auto Body & Towing Ltd. v. City of New York, 171
F.3d 765, 772 (2d Cir. 1999); Mendonca, 152 F.3d at 1187.
In the Airline Deregulation Act context, the Supreme
Court has focused on the effect that a state law has on
carrier operations, not on the state’s purpose for enacting
the law. In Morales, the Court found that the Airline
Deregulation Act preempted a directive promulgated by
several state attorneys general informing airlines that
certain advertising practices would be considered to
violate state consumer-protection laws. 504 U.S. at 379.
And, in American Airlines, Inc. v. Wolens, 513 U.S. 219,
227-28, 115 S. Ct. 817, 130 L. Ed. 2d 715 (1995), the Court
App. 20
held that the Airline Deregulation Act preempted a cause
of action under the Illinois Consumer Fraud Act concern-
ing the redemption of frequent-flier miles. In both cases,
the Court’s preemption analysis centered on the impact
that the challenged state laws had on airline services and
rates and not on the fact that the preempted laws were
enacted pursuant to the states’ police power to combat
consumer fraud. See Fla. Lime & Avocado Growers v. Paul,
373 U.S. 132, 150, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963)
(describing the traditional state authority to pass laws to
combat consumer fraud). The Court reached these conclu-
sions over dissents by Justice Stevens arguing (similarly
to the Attorney General here) that the state laws at issue
should not be preempted because there was insufficient
evidence of congressional intent to preempt state police-
power enactments. See Am. Airlines, 513 U.S. at 235-31
(Steven, J. dissenting in part); Morales, 504 U.S. at 419-27
(Stevens, J., dissenting).
Morales and American Airlines thus teach that, under
the Airline Deregulation Act, the focus should be on the
effect that the state law has on airline operations. Accept-
ing the Attorney General’s argument would shift the
analysis under the FAAAA away from that state law’s
effect and towards the state’s purpose for enacting the law.
A purpose-related limitation on FAAAA preemption would
thus inevitably create a gap between the scope of FAAAA
and Airline Deregulation Act preemption - a gap which
the FAAAA drafters sought to avoid.
In the end, the Attorney General’s argument founders
because it cannot be reconciled with the FAAAA’s text. The
Act’s drafters chose to express the preemptive scope of the
FAAAA in words that they understood to be exceedingly
broad. In the preemption context, we are to give effect to
App. 21
the ordinary meaning of a congressional enactment
“unless there is good reason to believe that Congress
intended the language to have some more restrictive
meaning.” Cipollone, 505 U.S. at 521. We do not find a
sufficiently compelling basis in either the structure or
history of the FAAAA to interpret the Act contrary to its
“deliberately expansive text.” Morales, 504 U.S. at 384. We
therefore conclude that the FAAAA preempts state police-
power enactments to the extent that they are “related to” a
carrier’s prices, routes, or services.”
2. FAAAA Preemption of the Tobacco
Delivery Law
We turn now to whether the challenged provisions of
the Tobacco Delivery Law are preempted because they are
“related to” carrier services. The parties do not contest
that carriers provide the service of delivering “packages on
an express or time-guaranteed basis.” See N.H. Motor
* The Attorney General offers a narrower argument for excluding
from FAAAA preemption state laws intended to address underage
smoking. He cites the Synar Amendn-ent, a federal law conditioning the
states’ receipt of certain federal funds on their enacting laws to ban the
sale of tobacco products to minors. See 42 U.S.C. § 300x-26. The
Attorney General contends that the Synar Amendment demonstrates
Congress’ intent that the states be able to regulate the delivery of
tobacco products irrespective of the FAAAA. We disagree. The Synar
Amendment indicates Congress’ intent that the states take the lead in
addressing the underage smoking problem. But the Attorney General
has not identified any evidence that Congress intended the states do so
in derogation of other federal laws. The FAAAA and Synar Amendment
can exist harmoniously because the states may pass laws to curb
underage smoking without passing laws “related to” carrier prices,
routes, or services. See UPS I, 318 F.3d at 333-34 (stating that courts
should endeavor to read congressional enactments in harmony when-
ever possible).
App. 22
Transp. Ass’n, 377 F. Supp. 2d at 209 (quoting UPS I, 318
F.3d at 336). But they disagree over whether the chal-
lenged provisions are “related to” this service.
We have previously interpreted the phrase “related to”
as used in the FAAAA:
The phrase “related to” has a broad meaning in
ordinary usage: to stand in some relation; to
have bearing or concern; to pertain; refer; to
bring in association or connection with. When
used in a preemption provision, such as [in the
FAAAA], it has a similarly broad reach. State
laws and regulations having a connection with or
reference to a... carrier’s ... services are pre-
empted under the [FAAAA). A sufficient nexus
exists if the law expressly references the .. . car-
riers’... services or has a forbidden significant
effect on the same.
UPS I, 318 F.3d at 335. We therefore consider whether the
district court correctly concluded that the challenged
provisions of the Tobacco Delivery Law either expressly
reference carrier services or have a forbidden significant
effect on UPS’ services.
We begin with § 1555-C(3)(C). As set forth above, this
statute requires tobacco retailers seeking to ship tobacco
products directly to Maine consumers to use only carriers
that deliver the package directly to the addressee/purchaser,
require a signature from the addressee/purchaser, and
conduct age verification if the addressee/purchaser is
under 27 years of age. Another section penalizes retailers
that use carriers that do not provide these services. 22
M.R.S.A. §§ 1555-C(3)(E) & (F).
App. 23
Section 1555-C(3)(C) expressly references a carrier’s
service of providing the timely delivery of packages. The
statute prescribes the method by which a carrier operating
in Maine must deliver packages containing tobacco prod-
ucts in a way that would affect the ability of the carrier to
meet package-delivery deadlines. Delays in searching for
the purchaser, making multiple delivery attempts if the
purchaser cannot be located, obtaining the purchaser’s
signature, and verifying the purchaser’s age all could
affect timely deliveries. See UPS I, 318 F.3d at 336 (find-
ing that the FAAAA preempted a state law that “affect {ed]
the timeliness and effectiveness” of a carrier’s service).
The Attorney General responds that there is no
FAAAA preemption because § 1555-C(3)(C) regulates
retailers of tobacco products and not carriers. He also
argues that we should decline to find preemption because
any carrier can avoid the requirements of § 1555-C(3)(C)
by declining to provide tobacco-product deliveries to Maine
consumers.
The Attorney General’s first argument amounts to a
claim that there can be no FAAAA preemption unless the
state law imposes a direct regulation on carriers. This
argument cannot be squared with the FAAAA’s text because
it reads the broad phrase “related to” out of the statute and
replaces it with the narrower term “regulates.” See Morales,
504 U.S. at 385. (rejecting an argument that would have
read “relating to” out of the Airline Deregulation Act and
replaced it with “regulate”); UPS I, 318 F.3d at 335 (rejecting
an argument for narrowing scope of the FAAAA that “would
read ‘the related to language’ out of the statute”).
Moreover, limiting preemption to direct regulation of
carriers is inconsistent with the FAAAA’s purpose to bar
App. 24
states from policing carrier operations. See Am. Airlines,
513 U.S. at 228. A state may use its coercive power to
cause carriers to conform to state-imposed rules in at least
two ways: it may directly regulate carriers or it may limit
retailers to hiring only those carriers that comply with the
state-imposed mandates. Either way the state is employ-
ing its coercive power to police the method by which
carriers provide services in the state. In short, the Attor-
ney General’s argument would lead to the untenable result
of permitting states to regulate carrier services indirectly
by regulating shippers. Cf. Abington Sch. Dist. v. Schemp,
374 U.S. 203, 230, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963)
(declining to adopt an interpretation that would permit
states to do indirectly what they cannot do directly).
The Attorney General’s alternative argument — that
there is no preemption because a carrier can forgo certain
tobacco-product deliveries in Maine — also fails. Declining
to find preemption simply because a carrier can limit its
in-state business to avoid a particular requirement would
undermine the FAAAA’s goal of creating an environment in
which “[sjervice options will be dictated by the marketplace,”
and not by state regulatory regimes. H.R. Conf. Rep. 103-677
at 88, reprinted in 1994 U.S.C.C.A.N. at 1760. The district
court correctly concluded that the FAAAA preempts § 1555-
C(3\(C).
We turn finally to whether the FAAAA preempts
§ 1555-D. In considering this question, we are mindful
that courts should “not nullify more of a legislature’s work
than is necessary, for ... a ruling of unconstitutionality
frustrates the intent of the elected representative of the
people.” Ayotte v. Planned Parenthood of N. New England,
126 S. Ct. 961, 967, 163 L. Ed. 2d 812 (2006) (internal
citation omitted). The first part of § 1555-D makes it
App. 25
unlawful for any person knowingly to deliver to Maine
consumers certain contraband tobacco products — Le.,
those tobacco products purchased by consumers from
unlicensed retailers. The second part of § 1555-D charges a
carrier with knowledge that a package contains tobacco
products if the package is so marked or if the shipper
appears on the Attorney General’s list of unlicensed
tobacco retailers.
Under Maine law, tobacco products purchased by a
consumer from an unlicensed retailer are contraband. See
22 M.R.S.A. § 1555-C(7). The first part of § 1555-D is a
corollary to § 1555-C(7) in that it makes the knowing
delivery of contraband tobacco products illegal. Thus, the
question we face is whether a generally applicable law
barring any person from knowingly delivering contraband
tobacco is preempted by the FAAAA insofar as the law
pertains to carriers.
While the FAAAA’s preemptive effect is broad, see
UPS I, 318 F.3d at 335, it is not unlimited, see Mendonca,
152 F.3d at 1188. State laws that only have a “tenuous,
remote, or peripheral” relation to services are beyond the
FAAAA’s reach. Morales, 504 U.S. at 390; Mendonca, 152
F.3d at 1188. In describing this limitation on preemption in
the Airline Deregulation Act context, the Supreme Court
explained that its broad interpretation of the statute’s
preemption provision did not place it “on a road that leads to
pre-emption of gambling and prostitution as applied to
airlines.” Morales, 504 U.S. at 390. We understand the
Morales Court to have meant that states may continue to
enjoy the power to ban primary conduct, and that the ADA
and FAAAA do not preempt laws applying these prohibi-
tions to airlines and carriers.
App. 26
Accordingly, Morales suggests that § 1555-D’s ban on
the knowing delivery of contraband tobacco products is not
preempted by the FAAAA - even only insofar as it pertains
to carrier services. Section 1555-D requires that carriers
do not act as knowing accomplices in the illegal sale of
tobacco products. It does not, however, require that carri-
ers modify their delivery methods other than by declining
to transport a product that Maine has legitimately
banned. We think that this effect on services is “too tenu-
ous” to warrant preemption. Mendonca, 152 F.3d at 1189
(stating that a state law is too tenuous to be preempted by
the FAAAA where the law does not frustrate the FAAAA’s
deregulatory purposes).
If the rule were otherwise, states would be unable to
bar a primary method by which contraband crosses state
lines. We do not believe that this was Congress’ intent in
enacting the FAAAA. Other courts applying the FAAAA to
prohibitions on the delivery of contraband tobacco have
reached similar conclusions. See Robertson v. Liquor
Control Bd., 102 Wn. App. 848, 10 P.3d 1079, 1084-85
(Wash. App. Ct. 2000) (concluding that the FAAAA did not
preempt a state law banning the transport of contraband
cigarettes because otherwise “a motor carrier would be
exempt from forfeiture for transporting a methampheta-
mine lab or poached game”); see also N.Y. State Motor Truck
Ass’n v. Pataki, No. 03-CV-2386 (GBD), 2004 WL 2937803,
at *6 (W.D.N.Y. Aug. 19, 2003) (concluding that the FAAAA
did not preempt a state law making it unlawful for carriers
to deliver cigarettes directly to New York consumers be-
cause “the mere fact that a statute concerns the transporta-
tion of a particular cargo by . . . carriers . . . does not render
it ... unconstitutional on preemption ground Ward uv.
App. 27
New York, 291 F. Supp. 2d 188, 210-211 (S.D.N.Y. 2004)
(similar).
But, while Maine may ban a carrier from knowingly
transporting contraband tobacco products, it may not
dictate the procedures that a carrier should employ to
locate these products in its delivery chain. See UPS I, 318
F.3d at 336 (concluding that the FAAAA preempted a
Puerto Rico revenue-collection scheme that mandated
procedures that carriers had to follow to deliver certain
packages). The second part of § 1555-D violates this
principle.
As noted, § 1555-D imposes upon a carrier construc-
tive knowledge that it has delivered a tobacco product if
the package containing the product is marked as contain-
ing tobacco or if the seller’s name appears on the Attorney
General's list. As UPS’ experience demonstrates, a carrier
seeking to comply with § 1555-D must specially inspect
every package destined for delivery in Maine. Once the
carrier has finished this inspection, it must segregate the
* There are many state laws barring the transport and delivery of
contraband. E.g., Ala. Code § 2-14-5 (barring transport of certain
products related to bee keeping); Ariz. Rev. Stat. § 3-209 (barring the
transport of quarantined produce); Ariz. Rev Stat. § 13-3102 (barring
transport of prohibited weapons); Cal. Bus. & Prof. Code § 17533.9
(barring transport of tear gas); Cal. Fish & Game Code § 4800 (barring
the transport of mountain lions); N.Y. Penal Law § 190.50 (barring
transport of slot machines or other gambling devices). We have not a
found a single case, outside the tobacco context, in which bans on the
transport of contraband have been challenged as preempted by the
FAAAA. Cf. Sir Arthur Conan Doyle, Silver Blaze (1890) (William S.
Baring-Gould, ed., The Annotated Sherlock Holmes, Vol. Il, 1967)
(Detective Gregory: “‘Is there any other point to which you would wish
to draw my attention?” Sherlock Holmes: “To the curious incident of the
dog in the night-time.” Gregory: “The dog did nothing in the night-
time.” Holmes: “That was the curious incident.”).
App. 28
packages that contain tobacco and research whether the
addressee is a Maine-licensed retailer or distributor who
can receive the package. While the second part of § 1555-D
does not expressly reference carrier services, it “impermis-
sibly affect[s] ... services .. . because it requir[es] UPS to
identify the contents of the packages (a deviation from
standard procedures used in deliveries elsewhere in the
United States)... .” UPS II, 385 F.2d at 14 (parenthesis in
original). UPS can only provide timely package delivery if
it follows uniform procedures that allow for “an orderly
flow of packages.” UPS I, 318 F.3d at 336. Because the
second part of § 1555-D has the effect of forcing UPS to
change its uniform package-processing procedures, the
district court correctly found it to be preempted.”
In reaching this conclusion, we recognize that there is
a potential tension between saying that, on the one hand,
Maine is free to punish the knowing delivery of material that
it has classified as contraband, while, on the other hand,
ruling that it may not dictate or interfere with a carrier’s
delivery procedures. What we are saying here, however, is
that Maine cannot use the mechanisms outlined in the
statute to impute knowledge based on a failure to read
labels or consult lists — an imputation which—would
amount to prescribing how carriers must operate.
* The Attorney General argues that the associations have failed to
establish a forbidden significant effect on UPS because they did not
offer studies conducted by UPS on the cost of compliance. We agree
with the district court that there is no such quantification requirement.
The cases in this area have looked to the logical effect that a particular
scheme has on the delivery of services or the setting of rates and have
not required the presentation of empirical evidence. See N.H. Motor
Transp. Ass’n, 377 F. Supp. 2d at 217 n. 92 (collecting cases).
App. 29
If, however, Maine could prove that a carrier employee
had actual knowledge that a package being delivered was
contraband tobacco, then it might have a colorable en-
forcement case — although such circumstances, as a
practical matter, may be difficult to prove. True, the
“related to” language could stretch to such a case but it
could also stretch to the knowing delivery of hard drugs —
and Congress cannot have intended such a result.
II.
“[T]obacco use, particularly among children and
adolescents, poses perhaps the single most significant
public health problem in the United States.” FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 161, 120 S. Ct.
1291, 146 L. Ed. 2d 121 (2000). There is no question that
Maine has sought to achieve a worthy objective by passing
the Tobacco Delivery Law to combat this pernicious
problem. See N.H. Motor Transp. Ass’n, 377 F. Supp. 2d at
219. But the FAAAA focuses on the effect that a state’s law
has on carriers, and not on the state’s objective in passing
the law. To the extent that Maine’s Tobacco Delivery Law
requires (or has the effect of requiring) carriers to imple-
ment state-mandated procedures in the processing and
delivery of packages, it is preempted by the FAAAA. But to
the extent that the Tobacco Delivery Law merely bars all
persons (including carriers) from knowingly transporting
contraband tobacco into Maine, the FAAAA is not impli-
cated.
We affirm the judgment as it pertains to 22 M.R.S.A.
§ 1555-C(3)(C) and the second part ef 22 M.R.S.A. § 1555-
D but reverse the judgment as it pertains to the first part
of § 1555-D. We remand the case to the district court with
App. 30
instructions to amend the judgment consistent with this
opinion. No costs are awarded.
So ordered.
App. 31
NEW HAMPSHIRE MOTOR TRANSPORT
ASSOCIATION, ET AL., PLAINTIFFS v. G. STEVEN
ROWE, IN HIS OFFICIAL CAPACITY AS
ATTORNEY GENERAL FOR THE STATE OF
MAINE, DEFENDANT
CIVIL No. 03-178-B-H
UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MAINE
377 F. Supp. 2d 197; 2005 U.S. Dist. LEXIS 10394
May 27, 2005, Decided
COUNSEL: For NEW HAMPSHIRE MOTOR TRANS-
PORT ASSOCIATION, MASSACHUSETTS MOTOR
TRANSPORTATION ASSOCIATION, INC., VERMONT
TRUCK AND BUS ASSOCIATION, INC., Plaintiffs; MI-
CHAEL A. NELSON, Jensen, Baird, Gardner & Henry,
Portland, ME; LAWRENCE R. KATZIN, PAUL T. FRIED-
MAN, RUTH N. BORENSTEIN, Morrison & Foerester LLP,
San Francisco, CA
For G. STEVEN ROWE, in his official capacity as Attorney
General for the State of Maine, Defendant; MELISSA
REYNOLDS O’DEA, PAUL D. STERN, Office of the Main
Attorney General, Augusta, ME.
JUDGES: D. BROCK HORNBY, UNITED STATES DIS-
TRICT JUDGE.
OPINION BY: D. BROCK HORNBY
OPINION: DECISION AND ORDER ON CROSS MO-
TIONS FOR SUMMARY JUDGMENT
App. 32
The Interstate Commerce Clause gives Congress the
authority “[tlo regulate commerce with foreign nations,
and among the several States.” Congress has exercised
this constitutional power to enact legislation that limits
state authority over the transportation of goods by air and
motor carriers. Does this federal legislation preempt a
Maine statute that regulates carriers when they deliver
tobacco products in Maine? Maine lawmakers had two
worthy objectives in enacting the state statute: to reduce
Maine teenagers’ access to tobacco products and to collect
tobacco taxes.’ But worthy motives are not enough to avoid
federal preemption, as other states learned when they
tried to regulate consumer fraud or deceptive advertising
in the airline industry.’ I denied a preliminary request to
enjoin enforcement of the Maine statute.“ But now I
conclude that two of the three challenged state provisions
cannot survive the broad preemptive language of the
federal legislation and two recent First Circuit decisions.
If there is to be regulation in this area, it will have to come
from the federal government.
* US. Const. art. I, § 8, cl. 3.
* I have provided more detail on the reasons for the Maine
legislation in New Hampshire Motor Transport Ass’n v. Rowe (“N.H.
Motor I”), 301 F.Supp.2d 38, 44-45 n.12 (D.Me.2004).
* See Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228, 115 S. Ct. 817,
130 L. Ed. 2d 715 (1995); Morales v. Trans World Airlines, Inc., 504 U.S.
374, 388-89, 112 S. Ct. 2031, 119 L. Ed. 2d 157 (1992).
* N.H. Motor I, 301 F.Supp.2d at 46. Judge Daniels issued a similar
decision in New York State Motor Truck Ass'n v. Pataki, 2004 WL
2937803, at *3-*6 (S.D.N.Y. Dec. 17, 2004).
App. 33
I. PROCEDURAL BACKGROUND
New Hampshire Motor Transport Association, Massa-
chusetts Motor Transportation Association and the Ver-
mont Truck & Bus Association (“the associations”) are non-
profit trade associations. Their members include motor
carriers and air/ground carriers in the cargo transporta-
tion business.’ The associations sued the Maine Attorney
General, seeking a declaration that the Federal Aviation
Administration Authorization Act of 1994 (“FAAAA”),°
preempts three provisions of Maine’s law regulating the
retail sale and delivery of tobacco (“the Maine Tobacco
* See Statement of Undisputed Material Facts in Support of Pls.’
“As Applied” Mot. for Summ. J. (“Pls.’” SMF”) 9 1 (Docket Item 61);
Def.’s Resp. to Pls.’ Statement of Undisputed Material Facts (“Def.’s
Responsive SMF” ) J 1 (Docket Item 69).
The associations ask me to take judicial notice of the following
items as facts “not subject to reasonable dispute” under Federal Rule of
Evidence 201: the affidavits filed in their earlier motion for summary
judgment; the Maine Department of Health and Human Services’
(“DHHS”) proposed (now final) “Rules Related to the Retail Sale and
Delivery of Tobacco Products in Maine”; and the public hearing and
comment period for those rules. Req. for Judicia) Notice in Support of
Pls.’ “As Applied” Mot. for Summ. J. (Docket Item 62). The Attorney
General does not object to this motion. Def.’s Resp. to Pls.’ Req. for
Judicial Notice (Docket Item 67).
The associations cite the affidavits only in paragraph one of their
Statement of Material Facts for the basic fact, admitted by the Attorney
General, that the associations engage in the commercial delivery of
property. I consider the affidavits only for this limited purpose. I am not
sure that Rule 201 judicial notice is necessary for the state rules and
the procedures for enacting them, but I do not need to decide the issue
because there is no dispute about these rules and procedures.
* Pub.L. No. 103-305, 108 Stat. 1569 (codified in scattered sections
of 49 U.S.C.).
App. 34
Delivery Law”).’ They also ask that I permanently enjoin
enforcement of these provisions.
I previously denied the associations’ motion for sum-
mary judgment, and granted the Maine Attorney General’s
subsequent motion for partial summary judgment, reject-
ing the argument that the FAAAA facially preempts the
Maine law.’ Both parties now move again for summary
judgment. The associations continue to argue facial
preemption, and also bring an as-applied challenge based
upon the Maine law’s effects on one of their members,
United Parcel Service (“UPS”). The Maine Attorney
” 22 M.R.S.A §§ 1551 to 1560. The associations challenge 22
M.R.S.A. §§ 1555-C(3)(A), 1555-C(3\(C) and 1555-D.
* N.H. Motor Transp. Ass’n v. Rowe (“N.H. Motor IT”), 324
F.Supp.2d 231, 234 (D.Me.2004); N.H. Motor I, 301 F.Supp.2d at 46.
* Pls.’ “As Applied” Mot. for Summ. J. with Incorporated Memo. of
Law (Docket Item 60). Commentators note some confusion over the
distinction “etween as-applied and facial challenges. See, e.g.. Richard
H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party
Standing, 113 Harv. L.Rev. 1321, 1335-41 (2000) (discussing the
relationship between facia! and as-applied challenges and stating that
“[flacial challenges are not sharply categorically distinct from as-
applied challenges to the validity of statutes”); Gillian E. Metzger,
Facial Challenges and Federalism, 105 Colum. L.Rev. 873, 879-83
(2005) (addressing the confusion about what constitutes a facial
challenge and noting that it arises in part from the Supreme Court's
statement in U.S. v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107
S. Ct. 2095 (1987), that a facial challenge is only successful if the»
statute has no valid application); see also McGuire v. Reilly, 386 F.3d 45,
57 (1st Cir. 2004) (indicating that the standard for a facial challenge
may not be as demanding as Salerno suggests). On this motion and
throughout this case, I use the term “facial” to refer to the challenge
based solely on the words of the Maine statute and “as-applied” to refer
to the challenge based solely on the actual effect of the law. See N.H.
Motor II, 324 F. Supp.2d at 233-34 n.1; N.H. Motor I, 301 F.Supp.2d at
40 n. 2. This distinction is based on the associations’ bifurcated
summary judgment approach (first asserting a challenge based on the
face of the statute, then bringing this effects-based challenge) and the
(Continued on following page)
App. 35
General argues that the FAAAA does not preempt the
challenged provisions either facially or as applied.”
II. LEGAL BACKGROUND
(A) Federal Regulation of the Transportation
Industry
Federal regulation of the transportation industry
dates back to the Interstate Commerce Act of 1887, which
created the Interstate Commerce Commission (“ICC”) to
regulate interstate railroad carriers. Congress sought
national uniformity in the regulation of interstate rail
transport. It therefore limited state authority over railroad
carriers (and other industries later regulated by the
6c.) *
Congress placed motor carriers under ICC control
with the Motor Carrier Act of 1935.” The Motor Carrier
Supreme Court’s holding in Morales, 504 U.S. at 388, 112 S. Ct. 2031,
that the FAAAA preempts statutes that expressly refer to (based on the
face of the statute) or have a forbidden significant effect on (based on
the statute’s application) a carrier’s prices, routes or services.
Def.’s Mot. for Summ. J. with Incorporated Memo. of Law
(Docket Itera 64); Def.’s Opp’n to Pls.’ “As Applied” Mot. for Summ. J.
(“Def.’s Opp’n”) at 9 (Docket Item 68).
" See Act to Regulate Commerce (Interstate Commerce Act), ch.
104, 24 Stat. 379 (1887). For a comprehensive history of federal
regulation of transportation, see Paul Stephen Dempsey, Transporta-
tion: A Legal History, 30 Transp. L.J. 235 (2003).
" See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450
US. 311, 318, 325-26, 101 S. Ct. 1124, 67 L. Ed. 2d 258 (1981); see also
W. Union Tel. Co. v. Boegli, 251 U.S. 315, 316-17, 40 S. Ct. 167, 64 L.Ed.
281 (1920) (placing telegraph companies under ICC control showed
congressional intent “to subject such companies to a uniform national
rule” and thus preclude state regulation).
” Ch. 498, 49 Stat. 543 (1935).
App. 36
Act authorized the ICC to regulate the entry, routes,
business practices, rates and safety of motor carriers
engaged in interstate or foreign commerce. A few years
later, Congress created the Civil Aeronautics Authority, an
agency similar to the ICC, to regulate air transportation.“
The Civil Aeronautics Authority governed entry, routes,
rates, business practices and safety of the airline industry.
The Federal Aviation Act of 1958 recodified the Civil
Aeronautics Act, continued the Civil Aeronautics Board
(the reorganized form of the Civil Aeronautics Authority)”
and established and transferred authority over safety
regulation to the Federal Aviation Agency (later renamed
the Federal Aviation Administration).
Since the 1970s, Congress has reversed course and
deregulated the transportation industry.” In the Airline
Deregulation Act of 1978, Congress reduced federal regula-
tion of the airline industry to encourage maximum reliance
on free market competition.” Congress also prevented the
States from interfering with federal deregulation by includ-
ing a broad preemption provision prohibiting states from
See Civil Aeronautics Act of 1938, ch. 601, 52 Stat. 973 (1938).
** See Reorganization Plan No. IV, §7, 54 Stat. 1234, 1235-36
(1940).
See Federal Aviation Act of 1958, Pub.L. No. 85-726, 72 Stat. 731
(1958); see also Department of Transportation Act, Pub.L. No. 89-670,
§§ 3(e)(1), 6(c)(1), 80 Stat. 931, 932, 938 (1966) (renaming the Federal
Aviation Agency).
” See, e.g., ICC Termination Act of 1995, Pub.L. No. 104-88, 109
Stat. 803 (1995); Staggers Rail Act of 1980, Pub.L. No. 96-448, 94 Stat.
1895 (1980); Motor Carrier Act of 1980, Pub.L. No. 96-296, 94 Stat. 793
(1980); see also Dempsey, supra, at 327-66 (discussing deregulation of
the various transportation industries).
* See Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat.
1705 (1978) (codified in scattered sections of 49 U.S.C.).
App. 37
“enactling] or enforcling] any law ... relating to rates,
routes, or services of any air carrier.””
In the 1994 FAAAA, Congress extended the Airline
Deregulation Act’s preemption provision to prohibit state
regulation of air/ground carriers as well. It also added a
new provision preempting state regulation of motor
carriers of property.” In the same language used in the
Airline Deregulation Act’s preemption provision, the
FAAAA preemption provisions broadly prohibit states from
“enactl[ing] or enforc{ing] a law, regulation, or other provi-
sion having the force and effect of law related to a price,
route, or service” of a motor carrier, air carrier or
air/ground carrier of property.
In enacting the FAAAA preemption provisions, Con-
gress exercised its authority under the Interstate Com-
merce Clause to ease the burden intrastate regulation
imposed on interstate commerce.” Congress believed that
the need for preemption of state authority arose out of a
" Id. § 105(a); see Morales, 504 U.S. at 378-79, 112 S. Ct. 2031; see
also New England Legal Found. v. Mass. Port. Auth., 883 F.2d 157, 172-
73 (1st Cir. 1989) (“In reducing federal economic regulation of the field
{with the Airline Deregulation Act of 1978] . .. , Congress obviously did
not intend to leave a vacuum to be filled by the Balkanizing forces of
state and local regulation.”). Congress initially codified this preemption
provision at 49 U.S.C.App. § 1305(a)(1), then amended and recodified it
at its current location, 49 U.S.C. § 41713(b)(1), in Pub.L. No. 103-272,
ch. 417, 108 Stat. 745 (1994).
* See Federal Aviation Administration Authorization Act of 194,
Pub.L. No. 103-305. Section 601(b) of the FAAAA is the air/ground
carrier provision, codified at 49 U.S.C. § 41713(b)(4XA). Section 601(c)
is the motor carrier provision, which was recodified as amended at its
current location, 49 U.S.C. § 14501(c)(1), in Pub.L. No. 104-88, ch. 145,
109 Stat. 803 (1995).
* See FAAAA, Pub.L. No. 103-305, § 601(a) (findings).
App. 38
“patchwork of [state] regulation” of transportation, which
created “a huge problem for national and regional carriers
attempting to conduct a standard way of doing business.”
It believed that intrastate regulation also resulted in
higher rates for intrastate shipments. Congress designed
the preemption provisions to eliminate diverse state
regulations (such as regulation of entry, tariffs, prices and
types of commodities carried), and promote uniform
standards for air, air/ground and motor carriers engaged
in the transportation of property.”
(B) Federal Contraband Cigarette Law
Although Congress has limited state regulation over
the transportation of goods, Congress has also expressly
recognized the power of the states to regulate and confis-
cate contraband cigarettes (cigarettes on which state taxes
have not been paid). In 1978, Congress stated in the
Contraband Cigarette Trafficking Act that federal regula-
tion of contraband cigarettes does not “affect the concur-
rent jurisdiction of a State to enact and enforce cigarette
tax laws, to provide for the confiscation of cigarettes and
other property seized for violation of such laws, and to
provide for penalties for the violation of such laws.”
Congress included this provision because “/t]he major
responsibility for enforcing state cigarette tax laws is now
and must continue to be the burden of the states.”“
* H.R.Rep. No. 103-677, at 86-88 (1994), reprinted in 1994
U.S.C.C.A.N. 1715, 1758-60.
* 18 U.S.C. § 2345(a).
* H.R. Rep. 95-1778, at 13 (1978), reprinted in 1978 U.S.C.C.A.N.
5535, 5541.
App. 39
(C) Maine’s Tobacco Delivery Law
The Maine Legislature enacted the Tobacco Delivery
Law to “clarif{y] the collection of taxes with regard to the
delivery sales of cigarettes” and “to strengthen the regula-
tion of delivery sales of cigarettes, especially with regards
to preventing sales to minors.”” When the Maine Legisla-
ture enacted the law in 2003, its Health and Human
Services Committee considered testimony that nearly 25%
of Maine’s high school students smoke occasionally and
14% smoke on a regular basis.” The bill’s sponsor in-
formed the Health and Human Services Committee that
delivery sales via the internet increased minors’ access to
tobacco by giving them an opportunity to purchase tobacco
without having to verify their age. He also stated that out-
of-state retailers advertise and sell tobacco products tax-
free, thereby increasing the tobacco delivery sales through
the mail and the internet and costing the State lost tax
revenue.”
The Tobacco Delivery Law is one of many steps that
Maine has taken to restrict underage access to tobacco.
When considering the Tobacco Delivery Law, the Legisla-
ture heard testimony about Maine’s “comprehensive
program on youth smoking,” which “includes education on
* L.D. 1236, Summary for the Original Legislative Document
(121st Me.Legis.2003).
* See Committee File of the Committee on Health and Human
Services on L.D. 1236, “An Act To Regulate the Delivery Sales of
Cigarettes and To Prevent the Sale of Cigarettes to Minors” (April 29,
2003), Testimony of the Maine Coalition on Smoking or Health. This
testimony is the written testimony submitted at the time of the public
hearing held by the committee assigned the bill. There is no record of
the oral testimony presented at these hearings.
*” See id., Testimony of Representative Glenn Cummings.
App. 40
tobacco, increases in the price of cigarettes through [an]
excise tax, ... programs to help youth who smoke and
want to quit” and “tough laws regarding access.”” Accord-
ing to repeated testimony, this comprehensive approach
contributed to a decline in smoking by Maine high school
students.”
Increasing internet sales have frustrated the State’s
laudable and extensive efforts to restrict underage access
to tobacco. The Maine Tobacco Delivery Law addresses
this problem by requiring: that delivery services check for
packages marked as containing tobacco and confirm that
those packages are being sent by a Maine-licensed tobacco
distributor or retailer; that tobacco retailers tell their
delivery service (such as UPS or the other members of the
carrier associations) the age of any tobacco-product pur-
chaser; and that tobacco retailers use for tobacco-product
delivery only a delivery service that agrees to request age
identification from and deliver to the specific addressee.”
(D) Other States’ Tobacco Delivery Laws
Other states recently have passed statutes regulating
the delivery of tobacco products.” Although these state
* JId., Testimony of the Maine Coalition on Smoking or Health.
* See, e.g., id.; id., Testimony of Dora Anne Mills, Director, Bureau
of Health, Department of Human Services (“As a result of these efforts,
Maine’s tobacco addiction rates have plummeted among youth — from
nearly 40% of Maine high school students being . . . smokers in 1997 to
25% in 2001. This 36% decline is one of the largest declines seen across
the country.”).
*® See 22 M.R.S.A. §§ 1555-C(3)(A), (C), 1555-D.
* See, eg., Ariz.Rev.Stat. §§ 42-3221 to 3230 (enacted in 2004);
Conn. Gen.Stat. § 12-285c (enacted in 2003); Okla. Stat. tit. 68, § 317.4
(enacted in 2003); Wash Rev.Code § 70.155.105 (enacted in 2003). The
(Continued on following page)
App. 41
tobacco delivery laws involve similar limitati~ns on to-
bacco shipments, the specific requirements vary by state.
For example, while state limitations on tobacco
shipments often depend on whether a retailer shipping or
receiving the package is licensed, the licensing is state-
specific. Thus, for each tobacco shipment, an interstate
delivery service must determine whether the addressee is
located in a state that has such a limitation, then consult a
list of licensed retailers provided by that state to deter-
mine if the delivery is lawful.”
Many states require that tobacco retailers use a
delivery service that will confirm the addressee’s age and
deliver only to an adult.” But while some states require
that the addressee sign personally for the package, others
allow any adult to sign. States also vary in their require-
ments for checking the identification of the person signing
for the package.”
associations cite many of these statutes in paragraphs 100 to 158 of
their Statement of Material Facts. The Attorney General qualifies and
moves to strike all of these paragraphs. Def.’s Responsive SMF 7J 100-
158. I consider these state statutes as relevant law, not facts.
* See, e.g., Alaska Stat. § 43.50.105(c); Conn. Gen.Stat. § 12-
285c(a); 22 M.R.S.A. § 1555-D; N.Y. Pub. Health Law §§ 1399- // (1)-(2).
* See, e.g., Ariz.Rev.Stat. § 42-3225(AX2); Conn. Gen.Stat. § 12-
285c(c); Del Code Ann. tit. 30, § 5365(a)(2); 22 M.R.S.A. § 1555-C(3\C);
Or. Rev.Stat. § 323.718(1)(b)(A).
“ Compare Ariz.Rev.Stat. § 42-3225(2) (addressee or adult residing
at the same address must sign and identification is required if the
Signer appears to be under twenty-seven) with Conn. Gen.Stat. § 12-
285c(c) (customer receiving the delivery must provide proof of age) and
22 M.R.S.A. §§ 1555-C(3)(C)(2) to (3) (addressee must sign and identifi-
cation is required if the addressee is under twenty-seven).
App. 42
Although many of these state laws require the retailer
to mark the package to reveal that it contains tobacco, the
required location and content of the marking may differ.”
The type of tobacco regulated also varies from state to
state. Some statutes regulate only cigarettes, while others
cover a broad range of tobacco products.”
Ill. ANALYSIS
The carrier associations attack Maine’s Tobacco
Delivery Law on the basis that the FAAAA expressly
preempts state regulation that relates to a carrier’s
services.” According to Article VI of the United States
Constitution, federal statutes enacted under constitutional
authority are “the supreme Law of the Land; ... any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” The FAAAA, enacted under
Congress’s constitutional authority to regulate interstate
* Compare Del Code Ann. tit. 30, § 5365(a)(1) (shipping documents
must include a clear and conspicuous statement that Delaware law
prohibits shipping tobacco to minors and requires the payment of
applicable taxes) with 22 M.R.S.A. § 1555-C(3\B); 10-144 Code Me. R.
Ch. 203, §§ 10(C)(2) (marking must be on the outside of the package
and, at a minimum, on the same plane as the shipping label, and must
show that tobacco products are inside and list the retailer’s name and
Maine license number) and Nev.Rev.Stat. § 202.24935(3) (packaging or
wrapping must be clearly marked “cigarettes” or “tobacco products”).
* Compare Alaska Stat. § 43.50.105 (cigarettes) and Conn.
Gen.Stat. § 12-285c (cigarettes) with 22 M.R.S.A. §§ 1551(3), 1555-C,
1555-D (any form of tobacco and any material or device used for
smoking, chewing or other tobacco consumption) and Nev.Rev.Stat.
§ 202.24935(1) (“cigarettes, cigarette paper, tobacco of any description
or products made from tobacco”).
” They also argue preemption based on prices and routes, but |
find it necessary to address only service(s). Since the associations have
argued only express preemption, I do not consider implied preemption.
App. 43
commerce, prohibits states from enacting laws “related to
a...service of” an air carrier, air/ground carrier or motor
carrier “with respect to the transportation of property.”
Congress has specified some areas that are exempt from
preemption, but the Maine Tobacco Delivery Law fits none
of the exemptions.” Therefore, the associations argue, the
* See 49 USC. §§14501(c)(1), 41713(b)4)(A). 49 USC.
§ 14501(c)(1) is the motor carrier provision. It provides that a state:
may not enact or enforce a law, regulation, or other provi-
sion having the force and effect of law related to a price,
route, or service of any motor carrier (other than a carrier
affiliated with a direct air carrier covered by section
41713(b)(4)) or any motor private carrier, broker, or freight
forwarder with respect to the transportation of property.
(Emphasis added.). 49 U.S.C. § 41713(b)(4)(A) is the air and air/ground
carrier provision. In very similar language, it provides that a state
may not enact or enforce a law, regulation, or other provi-
sion having the force and effect of law related to a price,
route, or service of an air carrier or carrier affiliated with a
direct air carrier through common controlling ownership
when such carrier is transporting property by aircraft or by
motor vehicle (whether or not such property has had or will
have a prior or subsequent air movement).
(Emphasis added). Congress intended that these “identical” provisions
“function in the exact same manner with respect to [their] preemptive
effects.” H.R.Rep. No. 103-677, at 85, reprinted in 1994 U.S.C.C.A.N. at
1757. Both provisions apply here because the associations include
ground carriers as well as air/ground carriers. (UPS is covered by the
air/ground carrier provision because one of its operating entities is an
air carrier. Pls.’ SMF, Def.’s Responsive SMF 7 5.)
* Savings clauses in the preemption provisions permit states to
regulate safety with respect to motor vehicles, highway route controls
or limitations based on vehicle size, weight or cargo hazards, financial
responsibility relating to insurance, household goods transportation,
and tow truck pricing for service provided without the towed-vehicle
owner's or operator’s consent. 49 U.S.C. §§ 14501(c)(2), 41713(b\4)(B).
The safety exception, 49 U.S.C. §§ 14501(c)(2A), 41713(b)(4)(BXi),
does not exempt Maine’s Tobacco Delivery Law from preemption
because the exception applies only to state regulation of motor vehicle
(Continued on following page)
App. 44
FAAAA preempts the challenged provisions of the Maine
Tobacco Delivery Law.
Congress enlarged the Airline Deregulation Act
preemption provisions to include motor carriers and
air/ground carriers because it wanted to level the playing
field between deregulated air carriers, carriers that are
affiliated with an air carrier but not otherwise covered by
the Airline Deregulation Act, and motor carriers not
affiliated with an air carrier. Jd. at 82, 87, reprinted in
1994 U.S.C.C.A.N. at 1754, 1759. The preemption is not
limited to interstate transportation. See FAAAA, Pub.L.
No. 103-305, §601(a) (finding that “the regulation of
intrastate transportation of property by the States has —
(A) imposed an unreasonable burden on interstate com-
merce; (B) impeded the free flow of trade, traffic, and
transportation of interstate commerce; and (C) placed an
unreasonable cost on the American consumers”) (emphasis
added); N.Y. State Motor Truck Ass’n, 2004 WL 2937803, at
*4 (“The FAAAA, with a few minor exceptions, effectively
preempts state regulations of intrastate motor carrier
activities.”).
Given the deadly health consequences, there are no
persuasive arguments for allowing minors to have tobacco
products. Thus, it is hard to believe that, if Congress were
confronted now with the specific question whether Maine
should be able to take ster. to protect the health of its
safety, and does not preserve the states’ genera] authority over safety
issues. See United Parcel Serv., Inc. v. Flores-Galarza (“UPS ITI”), 385
F.3d 9, 13-14 (1st Cir.2004). The exception for the transportation of
household goods, 49 U.S.C. §§ 14501(c2XB), 41713(b\4)B)ii), also
does not apply because it refers to state regulation of the services of
moving companies. See UPS II, 385 F.3d at 14.
App. 45
children, Congress would vote to prohibit what Maine is
trying to do. But the federal legislation that I must inter-
pret comes from a congressional push to deregulate air-
lines and motor carriers generally, without regard for the
topic or goal of the preempted state regulation (other than
the few, irrelevant, specified exceptions). At the time,
Congress believed that state regulation was interfering
with ordinary market forces, driving up the price of service
and hindering competition.” To avoid that state interfer-
ence, Congress enacted preemption legislation that speaks
in general categories. To interpret the scope of the result-
ing federal preemption, I must “look to Congress’s intent,
which is revealed in the language of the provision, as well
as the structure and purpose of the statute.”
“ See FAAAA, Pub.L. No. 103-305, § 601(a).
“ United Parcel Serv., Inc. v. Flores-Galarza (“UPS I”), 318 F.3d
323, 334 (1st Cir.2003). The Supreme Court has provided several
guideposts for approaching the issue of federal preemption:
(1) An express congressional definition of what is pre-
empted “supports a reasonable inference ... that Congress
did not intend to pre-empt other matters.” Freightliner
Corp. v. Myrick, 514 U.S. 280, 288, 115 S. Ct. 1483, 131
L. Ed. 2d 385 (1995);
(2) Congressional purpose is the “ultimate touchstone.”
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112
S.Ct. 2608, 120 L. Ed. 2d 407 (1992) (internal quotation
omitted);
(3) If the federal statute would “bar state action in a Seld
of traditional state regulation,” a court must “work on the
assumption that the historic police powers of the States are
not to be superseded by the Federal Act unless that is the
clear and manifest purpose of Congress.” Lorillard Tobacco
Co. v. Reilly, 533 U.S. 525, 541-42, 121 S. Ct. 2404, 150
L. Ed. 2d 532 (2001) (citations and internal quotation omit-
ted);
(Continued on following page)
App. 46
(4) This “assumption” (elsewhere called a “presumption,”
see Pharm. Research & Mfrs. of Am. v. Walsh, 538 U.S. 644,
666, 123 S. Ct. 1855, 155 L. Ed. 2d 889 (2003); UPS I, 318
F.3d at 336) disappears when a state legislates in a field
with “a history of significant federal presence.” United
States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146
L. Ed. 2d 69 (2000).
Ultimately the analysis here hinges on the second factor, congres-
sional purpose.
The parties have not argued that the first factor helps resolve this
case.
They have spent a good deal of energy on the third and fourth
factors. I conclude that I erred in my analysis in my earlier decision on
the associations’ facial motion for summary judgment, where | applied
the presumption against preemption by viewing the field narrowly as
“ground transport or delivery of dangerous products, especially to
minors in order to protect their health.” I noted there that the First
Circuit in UPS I made much of the long federal presence in air trans-
portation (which I distinguished from the history in ground transporta-
tion). See N.H. Motor I, 301 F.Supp.2d at 44. But I observe now that I
cannot make this distinction, because the purpose of the FAAAA’s
preemption provisions was to even the playing field for air and ground
transportation. See H.R.Rep. No. 103-677, at 82, reprinted in 1994
U.S.C.C.A.N. at 1754. More importantly, in determining whether there
is a presumption against federal preemption, the focus is to be on the
field where Congress legislates. (“Thle) presumption [against preemp-
tion} only arises ... if Congress legislates in a field traditionally
occupied by the states.” UPS I, 318 F.3d at 336 (citing Locke, 529 U.S.
at 108, 120 S. Ct. 1135).) I therefore adopt the approach taken in UPS /
and do not apply the presumption against preemption. But see Ward v.
New York, 291 F.Supp.2d 188, 209-10 (W.D.N.Y.2003) (distinguishing
UPS I and applying a presumption against preemption because New
York’s tobacco delivery law was “a public health law of general applica-
tion”).
Since both sides argued explicitly on this motion whether I should
apply the presumption against preemption, there is no unfairness in my
making this correction and no longer applying the presumption. See
Pls.’ “As Applied” Mot. for Summ. J. at 10-13; Def.’s Opp’n at 9-12; Def.’s
Mot. for Summ. J. at 8. Even if I continued to apply the presumption, |
would find Maine’s Tobacco Delivery Law preempted for the reasons
stated in text.
App. 47
I turn therefore to the statutory language. The pre-
emption provisions broadly prohibit states from enacting a
law “related to a price, route, or service” of an air carrier,
air/ground carrier or motor carrier “with respect to the
transportation of property.” I deal with the significant
terms in reverse order.
(A) “With respect to the transportation of
property”
The Maine statute deals with the transportation
(here, the delivery) of property, namely, tobacco products.“
(B) “Service”
Two Supreme Court cases have interpreted the Airline
Deregulation Act’s preemption provision (the statutory
predecessor to the FAAAA preemption provisions). The
Airline Deregulation Act provision that these cases inter-
pret is very similar to both of the FAAAA preemption
provisions and uses the term “services.” Unfortunately,
“@ 49 U.S.C. §§ 14501(c)(1), 41713(b)(4)(A).
“ The language “with respect to the transportation of property”
comes from the motor carrier provision, 49 U.S.C. § 14501(c\1). The
provision for air carriers and air/ground carriers, 49 U.S.C.
§ 41713(b)(4)(A), has slightly different language. This provision
prohibits state regulation of “an air carrier or carrier affiliated with a
direct air carrier ... when such carrier is transporting property by
aircraft or motor vehicle (whether or not such property has had or will
have a prior or subsequent air movement).” (Emphasis added). Under
this provision, the Maine statute regulates a motor carrier affiliated
with a direct air carrier when the motor carrier is transporting (deliver-
ing) property (tobacco products) by motor vehicle.
“ These cases interpret the original Airline Deregulation Act
provision, which provided that no state “shall enact or enforce any law,
(Continued on following page)
App. 48
these Supreme Court cases do not shed much light on the
term “services” or “service.” In one case, the state statutes
regulated the advertising of airfares. Since the federal
statute expressly prohibited state regulation that relates
to rates (fares), the Supreme Court had no need to con-
sider or define the term “services.”” The other case con-
cerned frequent flyer miles; the Supreme Court observed
summarily that frequent flyer miles relate both “to ‘rates,’
i.e., [the airline]’s charges in the form of mileage credits for
free tickets and upgrades, and to ‘services,’ i.e., access to
flights and class-of-service upgrades.” It did not elaborate
further on the meaning of the term “services,” although it
did reject an attempt to separate “matters ‘essential’ from
matters unessential to airline operations” in analyzing
what is preempted.“
rule, regulation, standard, or other provision having the force and effect
of law relating to rates, routes, or services of any air carrier having
authority under title IV of this Act . . . to provide air transportation.” 49
U.S.C.App. § 1305(a)(1) (1993). In 1994, Congress amended this
preemption provision to include its current language (the same
language used in the FAAAA provisions), which provides that a state
may not “enact or enforce a law, regulation, or other provision having
the force and effect of law related to a price, route, or service of an air
carrier.” See Pub.L. No. 103-272, ch. 417, 108 Stat. 745 (July 5, 1994)
(also recodifying the provision at its current location, 49 U.S.C.
§ 41713(bX1)). Congress did not intend the amendment to make any
substantive change, see id.; Wolens, 513 U.S. at 223 n.1, 115 S. Ct. 817,
and the parties have not cited any cases suggesting a different defini-
tion for the term “service” under the FAAAA than that used for the term
“services” under the original Airline Deregulation Act provision.
* Morales, 504 U.S. at 379-80, 112 S.Ct. 2031. The Court in
Morales instead addressed the meaning of the phrase “relating to,” as
discussed below. 504 U.S. at 383-91, 112 S. Ct. 2031.
“ Wolens, 513 U.S. at 226, 115 S. Ct. 817. Wolens considered the
meaning of the language “enact or enforce any law” as it related to the
common law of contracts. See id. at 228-29, 115 S. Ct. 817.
App. 49
Lower courts, on the other hand, have struggled with
the scope of the “services” preemption in the Airline
Deregulation Act, particularly in determining whether
federal law preempts state tort law for accidents that
happen on board an aircraft.” These courts have limited
the preempting term “service” to the frequency and sched-
uling of transportation and the choice of starting and
ending points;“ or have defined “services” as bargained-for
“ In Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1265-66
(9th Cir. 1998), the Ninth Circuit held that the Airline Deregulation Act
did not preempt state negligence and breach of contract claims because
“service” referred to “the r-ovision of air transportation to and from
various markets at various times,” not the provision of amenities such
as personal] assistance, luggage handling, and food and drink. The
Eleventh Circuit has held that a state claim of age discrimination in
employment is not preempted because it does not relate to an airline’s
services, but that claims relating to the physical capabilities of flight
personnel could relate to services and thus be preempted. Parise v.
Delta Airlines, Inc., 141 F.3d 1463, 1466-68 (11th Cir. 1998). Courts
have also held that a state defamation claim had too tenuous a connec-
tion with services (ticketing) to be preempted, Taj Mahal Travel, Inc. v.
Delta Airlines, Inc., 164 F.3d 186, 195 (3d Cir. 1998), but that a plain-
tiff’s claim for conversion for a carrier’s failure to deliver the contents
of a package related to the carrier’s services and was thus preempted,
Forman v. Fed. Express Corp., 194 Misc.2d 441, 753 N.Y.S.2d 348, 351-
52 (2003). The Fifth Circuit held that a state tort claim for persoual
injury was not preempted because it related to the operation of the
aircraft, not its services. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 340
(5th Cir. 1995). The court in 7rujillo. v. American Airlines, Inc., 938
F.Supp. 392, 394 (N.D. Tex. 1995), applied this services/operations
distinction, holding that negligence and consumer protection claims for
the airline’s preparation and shipping of a package were preempted
because they involved services, not operations of the airline.
Some of these cases interpret the term “services” in the original
Airline Deregulation Act preemption provision, 49 U.S.C.App.
§ 1305(a)(1), and others interpret the term “service” in the amended
provision, 49 U.S.C. § 41713(b)(1), depending on which version was in
effect.
“ Charas, 160 F.3d at 1265-66.
App. 50
provisions (preempted) distinct from “operations or main-
tenance” (not preempted).” The Third Circuit, on the other
hand, has concluded that the services/operations distinc-
tion is “strained and unsatisfactory,” and that to define the
term service, “focusing on the competitive forces of the
market ... leads to a more accurate assessment of Con-
gressional intent.””
The First Circuit has not entered this debate over the
meaning of the word “services” in the Airline Deregulation
Act.”’ But without discussing the ambiguities of the term,
the First Circuit has said that the word “service,” as used
in the FAAAA’s air and air/ground carrier provision,
includes “the delivery of packages on an express or time-
guaranteed basis.”” In that case, the First Circuit charac-
terized UPS’s delivery services as depending on the “or-
derly flow of packages.” It also quoted approvingly a Ninth
Circuit statement that “[tlerms of service determine cost.
To regulate them is to affect the price.””
* Hodges, 44 F.3d at 336-37, 338-39.
© Taj Mahal, 164 F.3d at 194.
*! See French v. Pan Am Express, Inc., 869 F.2d 1, 3 (ist Cir.1989)
(declining to address express preemption based on the Airline Deregu-
lation Act’s reference to “services” where the comprehensive federal
legal scheme set out in the rest of the Airline Deregulation Act impli-
edly preempted the plaintiff’s state claim).
*® UPS I, 318 F.3d at 336 (interpreting 49 U.S.C. § 41713(b)(4)(A)).
* Id. (quoting Fed. Express Corp. v. Cal. Pub. Utils. Comm'n, 936
F.2d 1075, 1078 (9th Cir. 1991)). Price is another preempted area of
regulation. 49 U.S.C. §§ 14501(c)(1), 41713(b)(4(A) (prohibiting states
from enacting or enforcing a law “related to a price, route, or service” of
a carrier). The Fifth Circuit has interpreted the term “price,” holding
that a negligence claim for failure to provide more leg room to prevent
the health condition of deep vein thrombosis related to price because
providing more leg room would reduce the number of seats and affect
(Continued on following page)
App. 51
I follow the First Circuit decision. The Maine statute
here deals with the delivery of packages and, in its appli-
cation to UPS, affects delivery on an express or time-
guaranteed basis. UPS has a national and international
distribution system that relies heavily on uniform proce-
dures for picking up, documenting, processing, handling
and delivering packages. The record establishes that to
comply with the Maine statute, UPS must use delivery
practices for Maine packages that vary from its nationally
and internationally uniform procedures.” This lack of
uniformity affects the price of UPS’s services and inter-
feres with the orderly flow of packages by jeopardizing the
the prices the airline charged. Witty v. Delta Air Lines, Inc., 366 F.3d
380, 383 (5th Cir. 2004).
“ Pls.’ SMF, Def.’s Responsive SMF J 7, 9, 18, 20, 24, 26, 30-31,
60-67. The Attorney General admitted paragraphs 7, 9, 18, 26, 30, 31
and 60 through 67 of the associations’ Statement of Material Facts.
He responded “qualified” to the associations’ paragraph 20, which
states that UPS preloaders must scan the exterior of every package to
be delivered in Maine for a marking indicating the package contains
tobacco products. The Attorney General responded that “[p]reloaders
are already inspecting packages for markings,” but did not deny that it
takes the preloaders more time to check the package for the marking
required by the Maine statute, see 10-144 Code Me. R. Ch. 203,
§§ 10(CX2), 11; see also footnote 67 (discussing what a carrier must do
to comply with these regulations).
In response to paragraph 24, which states that the preloaders do
not usually read the shipper’s name and only occasionally read the
addressee’s name, and that having to do so because of the Maine
statute delays the preloaders’ tasks, the Attorney General stated,
“Qualified. UPS has done no operational study to ascertain whether
there is such a delay or, if so, the magnitude of that delay.” The
Attorney General does not deny that the preloaders usually do not
check for the shipper’s or the addressee’s name, or that having to do so
causes delay. There is no need for an operational study because it is
logical that checking these names would cause some delay, however
slight.
App. 52
speed, reliability and efficiency of delivery.” Under First
Circuit precedent, therefore, the Maine statute has some
effect on a carrier’s “services.”
(C) “Related to”
In Morales, the Supreme Court determined the
meaning of the phrase “relating to” in the Airline Deregu-
lation Act.” The Court recognized that the phrase has a
broad scope both in ordinary language and in the statute.
It ruled that the relationship can be satisfied in either of
two ways: if the state law: (a) expressly references the
carrier’s prices, routes or services or (b) has a “forbidden
significant effect upon” the carrier’s prices, routes or
services.” I see no reason to interpret the FAAAA phrase,
“related to,” any differently. Indeed, the legislative history
makes clear that the drafters intended the same mean-
ing,” and the First Circuit has made it the law of this
® See Pls.’ SMF, Def.’s Responsive SMF 9 7-8, 10-11. The Attorney
General admitted paragraphs 7, 8 and 10, but responded “qualified” to
the associations’ paragraph 11. Paragraph 11 states that UPS must
avoid even minor delays to meet its delivery deadlines, and that “delays
or disruptions at any point in UPS's operations can affect thousands of
packages in transit.” The Attorney General responded that UPS’s time
projections are based on historical data, which inherently include
delays associated with non-deliverable packages, and that a number of
factors can delay UPS’s services. But the Attorney General did not deny
that delays affect delivery deadlines, and, logically, the fact that UPS
already encounters delays does not mean additional delay is acceptable.
* 504 U-S. at 383-89, 112 S. Ct. 2031.
* Id. at 388, 112 S. Ct. 2031; see also UPS I, 318 F.3d at 335 (citing
Morales, 504 U.S. at 388, 112 S. Ct. 2031).
* According to the FAAAA's legislative history:
In substituting the word “related” for the prior word “relat-
ing”... we are intending no substantive change to the pre-
viously enacted preemption provision in Section 105 of the
(Continued on following page)
App. 53
circuit that the Morales interpretation controls the FAAAA
as well.” I will address each of the three challenged Maine
provisions for whether they satisfy either or both or these
two requirements.
Federal Aviation Act and do not intend to impair the appli-
cability of prior judicial case law interpreting these provi-
sions. In particular, the conferees do not intend to alter the
broad preemption interpretation adopted by the United
States Supreme Court in Morales v. Trans World Airlines,
-
H.R.Rep. No. 103-677, at 83, reprinted in 1994 U.S.C.C_A.N. at 1755.
“ UPS I, 318 F.3d at 334-35. In interpreting the Airline Deregula-
tion Act preemption provision, the Court in Morales considered a
similar ERISA preemption provision, 29 U.S.C. § 1144(a). 504 U.S. at
383-85, 112 S. Ct. 2031. The ERISA provision preempts state laws
“insofar as they ... relate to any employee benefit plan.” 29 U.S.C.
§ 1144(a); Morales, 504 U.S. at 383, 112 S. Ct. 2031. At the time of
Morales, under the ERISA provision a law “relate{d] to” an employee
benefit plan “if it had a connection with, or reference to, such a plan.”
Morales, 504 U.S. at 384, 112 S. Ct. 2031 (internal quotation omitted).
The Supreme Court later limited the meaning of “relate to” in the
ERISA provision, stating that courts should consider the objectives of
the ERISA statute rather than look to “infinite relations” or “infinite
connections” to measure preemption, and noting that ERISA preempts
state laws that “mandate{] employee benefit structures or their
administration.” N.Y. State Conference of Blue Cross & Blue Shield
Plans v. Travelers Ins. Co., 514 U.S. 645, 656-58, 115 S. Ct. 1671, 131
L. Ed. 2d 695 (1995); see also Catholic Charities of Me., Inc. v. City of
Portland, 304 F.Supp.2d 77, 90-92 (D.Me.2004) (discussing this cutback
in the ERISA meaning of “relate to”). Despite the Supreme Court's
narrowing of the ERISA meaning of “relate to,” Congress intended the
Morales Court's broad interpretation of “relating to” in the Airline
Deregulation Act to apply to the FAAAA preemption provisions. See
H.R.Rep. No. 103-677, at 83, reprinted in 1994 U.S.C.C.A.N. at 1755;
see also UPS I, 318 F.3d at 335 n.19 (“(I)f developments in pension law
have undercut holdings in air-transportation law, it is for the Supreme
Court itself to make the adjustment. Our marching orders are clear:
follow decisions until the Supreme Court overrules them.”) (quoting
United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 608 (7th Cir.
2000)) (alteration in original).
App. 54
(1) Section 1555-D
One of the three challenged provisions of the Maine
statute expressly references carriers’ services. Specifically,
section 1555-D states: “A person may not knowingly
transport or cause to be delivered to a person in this State
a tobacco product purchased from a person who is not
licensed as a tobacco retailer in this State.”” Although this
prohibition uses the general language “a person” (rather
than “a delivery service” or “a carrier”), it expressly
references the service that carriers provide (the transpor-
tation of property). Carriers that violate this prohibition
face penalties under section 1555-D(2). Moreover, to
achieve compliance, subsection 1555-D(1) requires the
Attorney General to provide lists of licensed tobacco
retailers and known unlicensed retailers to “a delivery
service.” “Delivery service” is defined as “a person, includ-
ing the United States Postal Service, who is engaged in
the commercial delivery of letters, packages, or other
containers.” A “delivery service” under the Maine statute
that uses motor vehicle transportation fits within the
* In full, the preamble reads:
A person may not knowingly transport or cause to be deliv-
ered to a person in this State a tobacco product purchased
from a person who is not licensed as a tobacco retailer in
this State, except that this provision does not apply to the
transportation or delivery of tobacco products to a licensed
tobacco distributor or tobacco retailer. A person is deemed to
know that a package contains a tobacco product if the pack-
age is marked in accordance with the requirements of sec-
tion 1555-C, subsection 3, paragraph B or if the person
receives the package from a person listed as an unlicensed
tobacco retailer by the Attorney General under this section.
22 M.R.S.A. § 1555-D.
* Id. § 1551(1-C).
App. 55
FAAAA'’s definition of “motor carrier” (“a person providing
motor vehicle transportation for compensation”).” Section
1555-D thus expressly references carriers’ services. Under
the analysis of Morales and UPS I, that is enough to result
in preemption.
This conclusion differs from what I said in my pre-
liminary rulings.” My conclusion has changed because I no
longer apply the presumption against preemption,” and
because, since my previous rulings, I have had the oppor-
tunity for further thought and reflection, as well as the
benefit of the First Circuit’s decision in UPS II, which
sheds additional light on the issue of preemption under
the FAAAA. I follow the plain language of the statute and
the First Circuit authority in UPS I and UPS II in con-
cluding
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