Amicus Curiae Brief — Rowe v. New Hampshire Motor Transport Ass'n
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IN THE
Supreme Court of the Anited
AUG 2 2 2007
OF TH 2
SUPREME COURT
G. STEVEN Rowe, In His Official Capacity as
Attorney General of the State of Maine,
Petitioner,
Vv.
NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION,
MASSACHUSETTS MOTOR TRANSPORTATION, INC., and
VERMONT TRUCK & BUS ASSOCIATION, INC.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the First Circuit
BRIEF FOR AMICUS CURIAE
TOBACCO CONTROL LEGAL CONSORTIUM,
CAMPAIGN FOR TOBACCO-FREE KIDS,
AMERICAN LUNG ASSOCIATION, AMERICAN
LUNG ASSOCIATION OF MAINE, AMERICAN
CANCER SOCIETY, AMERICAN HEART
ASSOCIATION, AMERICAN LEGACY
FOUNDATION, AMERICANS FOR NONSMOKERS’
RIGHTS, AMERICAN MEDICAL ASSOCIATION,
AND MAINE MEDICAL ASSOCIATION
IN SUPPORT OF PETITIONER, STATE OF MAINE
KATHLEEN HOKE DACHILLE *
LEGAL RESOURCE CENTER FOR
TOBACCO REGULATION,
LITIGATION & ADVOCACY
500 W. Baltimore Street
Baltimore, MD 21201
(410) 706-1294
* Counsel of Record Counsel for Amicus Curiae
a
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WasHinGTON, D.C. 20002
ieee
I.
II.
TABLE OF CONTENTS
TOBACCO USE IN THE UNITED STATES
PRESENTS A SERIOUS NATIONAL
ee | |.
AS YOUTH USE OF THE INTERNET
INCREASES AND THE NUMBER OF
ONLINE TOBACCO RETAILERS MULTI-
PLIES, THE STATES’ ABILITY TO
PREVENT YOUTH ACCESS TO TOBACCO
i icinhinnilnidecnceunieniinciiiiiinaniaiiialaiiehadiaenes
THE FIRST CIRCUIT'S DECISION
UNREASONABLY PREVENTS MAINE
AND OTHER STATES FROM COMPRE-
HENSIVELY CONTROLLING YOUTH
oe Bt | & + | en eee
A. Maine’s Tobacco Delivery Law Was
Properly Enacted Pursuant To The State's
Police Powers And Is A Necessary Re-
sponse To Congress’s Call Reduce Youth
I ee I ccieicntiiinienicitisinnaniinntisiennnnie
B. Maine's Tobacco Delivery Law Is Not
Preempted By The FAAAA And Therefore
The First Circuit’s Exceedingly Broad
Interpretation Of FAAAA Preemption
En
(1)
13
13
ii
TABLE OF CONTENTS—Continued
Page
C. The Decision Below Prevents Maine From
Regulating The Critical Point Of Delivery
Of Tobacco To Minors, Thus Impairing
Maine From Fulfilling The Goal Of The
Synar Amendment To Reduce Minors’
ID Se I iciirtccicctinineisseltsdiiiacenieiiicenns 20
STATEMENT OF INTEREST OF AMICUS CURIAE 23
URGED ssdihicstiniishinnitintctiechieinaniossiiiinitindtattanlbanhita 27
ill
TABLE OF AUTHORITIES
CASES Page
Brown & Williamson Tobacco Corp. v. Food &
Drug Admin., 153 F.3d 155 (4th Cir. 1998),
Fy Fee hie BaP Grier stncesnseccssocnerennsscseees 14
Columbus v. Ours Garage & Wrecker Serv., 536
3 _ RIE eee renee eee Deen 18
Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120 (2000) ................ 5
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525
TT insisteciceinactoeceeiahililethsaiadinatensiheiiiabbaiidiaancenin 14
Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996)....... 18
Morales v. Trans World Airlines, Inc., 504 U.S.
PE icssitiibeaitinctiitiiprtaitinanatitubiatiinntinmeineninests 19
New Hampshire Motor Transp. Ass'n v. Rowe,
448 F.3d 66 (Ist Cir. 2006)... ec eeeeeeeees 2
New Hampshire Motor Transport Ass'n v. Rowe,
377 F. Supp. 197 (D. Me. 2005)............. eee 16
Sprictsma v. Mercury Marine, 537 U.S. 51
I hntndlediénidialiniisamsisceareneasinpdacianiabsediiniiphiornnionenen 18
United Parcel Serv., Inc. v. Flores-Galarza, 385
fA ERE Ee ste 23
STATUTES
Federal
es i IE iciciniisdepttiineisiiidealaciivestiniainaiionaabin 21
Oe ee te TD sesiccicecintsiennctiminsituiinndinbiones 5
rs ae I iteinsicntiatnccinniciiensinnipveniieenss 17
FT ~ Br Fe Ric eecccmncenccevmentanneniinenee 17
Federal Aviation Administration Authorization
Act of 1994, Pub. L. No. 103-305, § 601, 108
A a
ty
iV
TABLE OF AUTHORITIES—Continued
Page
State
720 Ill. Comp. Stat. Ann. §§ 678/5, 678/10,
NLA a a a Oe eT I 16
Pe I ai ciccnscnuendannisitinotunsiedionss 16
Ariz. Rev. Stat Ann. § 42-3225(A)(2)...............04. 16
Cal. Bus. & Prof. Code § 22963 ............::ccccccccseeees 16
Conn. Gen. Stat. Ann. § 12-285...............00000000000s 16
Del. Code. Ann. tit. 30, § 5365(a)(2).............00000.. 16
Laaho Code Anni. § 59-5701 .......c..cccccssessscsssosepesees 16
Ind. Code Ann. § 24-3-5-5(a) ...........ccccceseeeceeeeeeeees 16
I I, I a ccccnamnsemanniiis 16
La. Rev. Stat. Ann. § 47:874(A)(2)..................000. 16
Me. Rev. Stat. Ann. tit. 22, § 1553-A......00000000.... 6
Me. Rev. Stat. Ann. tit. 22, § 1555-B.................... 6
Me. Rev. Stat. Ann. tit. 22, §§ 1555-C...... 3
Me. Rev. Stat. Ann. tit. 22, § 1555-D..000... 3
Md. Code Ann., Bus. Reg. § 16-223... 16
Mich. Comp. Laws Ann. § 205.431 we 16
BN Rs HT I ccs thtccicccnsicncecescsasnsacnsies 16
Nev. Rev. Stat. Ann. § 202.24935 .000..........ccceceee 16
N.Y. Pub. Health Law § 1399-Il...0..000 16
Okla. Stat. Ann. tit. 68, § 317.4(A)(2)......00 ee. 16
Or. Rev. Stat. Ann. § 323.718(1)(b) ...........0.....28. 16
FT 8 | cn 17
Tenn. Code Ann. § 39-17-1504(d) wo... cceeeeeeeees 17
Tex. Health & Safety Code Ann. § 161.455(a)(2). 16
Utah Code Ann. § 76-10-105.1 .00.....cc cece 16
Va. Code Ann. § 18.2-246.10(2) .............:cceeceeeeeee 16
Wash. Rev. Code Ann. §§ 70.155.010 .................. 17
W. Va. Code Ann. § 16-9E-4(a)(2) 0.0.0.0... 16
V
TABLE OF AUTHORITIES—Continued
OTHER AUTHORITIES
Christopher Banthin et al., Legal Approaches to
Regulating Internet Tobacco Sales, 32 J. of
Law, Med. & Ethics 64 (2004) .000...cccccccccceceeee.
J. A. Bryant et al. Online Sales: Profit Without
Question, 11 Tobacco Control 226 (2002)........
Campaign for Tobacco-Free Kids, Broken
Promise to Our Children: The 1998 State
Tobacco Settlement Seven Years Later (2005)..
Campaign for Tobacco-Free Kids, Smoking and
Ct _, a ren ean
Campaign for Tobacco-Free Kids, Where Do
Youth Smokers Get Their Cigarettes (2007)......
Joanna E. Cohen et al., Tobacco Commerce on
the Internet: A Threat to Comprehensive To-
bacco Control, 10° Tobacco Control 364
Joseph R. DiFranza and G.F. Dussault, The
Federal Initiative to Halt the Sale of Tobacco
to. Children—the Synar Amendment, 1992-
2000: Lessons Learned, 14 Tobacco Control
i STN LN tis SS
Elisheva F. Gross, Adolescent laternet Use: What
We Expect, What Teens Report, 25 Applied
Developmental Psychology 633 (2004) ............
H.R. 2824 (2004), “Internet Tobacco Sales En-
I TID" scintaisnnrcntittntiiiamenianane nae
H.R. Cont. Rep. No. 103-677 (1994) ooo.
Health Policy Guide, Center for Health Improve-
ment, Penalties for Illegal Sales to Minors .......
Page
10
10
14
14
17
vi
TABLE OF AUTHORITIES—Continued
Page
John H. Knowles, Jr. et al., /nternet Sales of
Tobacco: Heading Off the New E-pidemic, 25
Journal of Public Health Policy 58-68 (2004)... 8
Amanda Lenhart et al., Teens and Technology:
Youth Are Leading the Transition to a Fully
Wired and Mobile Nation, Pew Internet &
American Life Project (2005) ...............:ccceceeee 7
Mechthild Maczewski, Exploring Identities
Through the Internet: Youth Experiences
Online, 31 Child & Youth Care Forum 111
LE 8
Kurt M. Ribisl et al., Are the Sales Practices of
Internet Cigarette Vendors Good Enough to
Prevent Sales to Minors?, 92 AM. J. PUB.
HEALTH 940 (Jume 2002) ...........ccceccccesseeesseeeeees 11
Kurt M. Ribis! ct al., Brief Report: Internet Sales
of Cigarettes to Minors, 290 J. Am. Med. 1356
Kurt M. Ribis! et al., Internet Cigarette Sales,
Briefing to the Congressional Task Force
on Tobacco and Health, July 17, 2006,
Te 10
Kurt M. Ribisl et al., Web Sites Selling
Cigarettes: How Many Are There in the USA
and What Are Their Sales Practices?, \0
Tobacco Control 352 (2001)... ccccccccceeees 2)
S. 1177 (2004), “Prevent All Cigarette Traffick-
a 14
Don Tapscott, Growing Up Digital: The Rise of
the Net Generation (1998)... cccccceecceeees 6
vil
TABLE OF AUTHORITIES—Continued
U.S. Dep't of Commerce, Economics and Statis-
tics Administration, Nat’! Telecommunications
and Information Administration, A Nation
Online: How Americans Are Expanding Their
Use of the Internet (Feb. 2002)...
U.S. Dep't of Education, National Center for
Educational Statistics, Computer and Internet
Use by Children and Adolescents in 2001:
Statistical Analysis Report (2003) .............00000.
U.S. Dep't of Health & Human Services, Centers
for Disease Control & Prevention, Cigarette
Smoking — Attributable Morbidity — United
States, 2000 Morbidity and Mortality Weekly
EERIE a a oe
U.S. Dep’t of Health & Human Services, Centers
for Disease Control & Prevention, Cigarette
Use Among High School Students — United
Ty |
U.S. Dep't of Health & Human Services, Centers
for Disease Control & Prevention, Promising
Practices in Chronic Disease Prevention and
Control: A Public Health Framework for
Sciatica le
U.S. Dep't of Health & Human Services, Centers
for Disease Control & Prevention, Sustaining
State Programs for Tobacco Control — Data
Highlights 2004 (2004).................cccccccscessesseseees
Page
vill
TABLE OF AUTHORITIES—Continued
U.S. Dep’t of Health & Human Services, Centers
for Disease Control & Prevention, Youth
Tobacco Surveillance — United States, 2001-
STITT ciciilacliataieainietiiehiianiaenianataabiaiiaadiamiindiade
U.S. Dep’t of Health & Human Services, The
Health Consequences of Smoking: A Report of
the Surgeon General (2004)... ceeeee eee
U.S. Dep't of Health & Human Services, Pre-
venting Tobacco Use Among Young People:
A Report of the Surgeon General (1994)...........
U.S. Dep't of Health and Human Servites, Re-
ducing Tobacco Use: A Report of the Surgeon
Se hiinecivcininictiicinenineumnicintntieapmsiniirininiitienes
U.S. General Accounting Office, Report to Con-
gressional Requestors, Internet Cigarette Sales:
Giving ATF Investigative Authority May
Improve Reporting and Enforcement (August
Zheng Yan, What Influences Children’s and
Adolescents’ Understanding of the Complexity
of the Internet?, 42 Developmental Psychol-
ee ticsiasreiunnninnenctenniiecancinsintaniiabeialsinlintanstbdecs
Page
10
IN THE
Supreme Court of the Anited States
G. STEVEN ROWE, In His Official Capacity as
Attorney General of the State of Maine,
Petitioner,
Vv.
NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION,
MASSACHUSETTS MOTOR TRANSPORTATION, INC., and
VERMONT TRUCK & BUS ASSOCIATION, INC.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the First Circuit
BRIEF FOR AMICUS CURIAE
TOBACCO CONTROL LEGAL CONSORTIUM,
CAMPAIGN FOR TOBACCO-FREE KIDS,
AMERICAN LUNG ASSOCIATION, AMERICAN
LUNG ASSOCIATION OF MAINE, AMERICAN
CANCER SOCIETY, AMERICAN HEART
ASSOCIATION, AMERICAN LEGACY
FOUNDATION, AMERICANS FOR NONSMOKERS’
RIGHTS, AMERICAN MEDICAL ASSOCIATION,
AND MAINE MEDICAL ASSOCIATION
IN SUPPORT OF PETITIONER, STATE OF MAINE
INTEREST OF AMICUS CURIAE '
Ten entities with significant interest in and expertise on
legal issues surrounding tobacco control in the United States
' Counsel to the parties took no part in preparing this brief. No person
or entity except listed amicus curiae contributed financially to the produc-
tion of this brief. All parues consented in writing to the submission of this
brief.
2
have joined to submit this brief: the Tobacco Control Legal
Consortium, the Campaign for Tobacco-Free Kids, the Amer-
ican Lung Association, the American Lung Association of
Maine, the American Cancer Society, the American Heart
Association, the American Legacy Foundation, Americans for
Nonsmokers’ Rights, the American Medical Association and
the Maine Medical Association. A full description of each
amicus and its interest in this case is presented at the end of
this brief.
ARGUMENT
In New Hampshire Motor Transport Association v. Rowe,’
the First Circuit over-broadly interprets the Federal Aviation
Administration Authorization Act of 1994° (“FAAAA”) as
preempting certain provisions of the State of Maine’s tobacco
delivery legislation and leaves Maine and other states unable
to comprehensively reduce the availability of tobacco pro-
ducts to minors. Faced with growing youth access to the
Internet, the increasing purchasing power of teens, and a
proliferation of online tobacco retailers, states have the
obligation and power to effectively regulate online tobacco
retailers. Imposing requirements on the marking and delivery
of packages containing tobacco products is an integral com-
ponent of such regulation. Because the economic-centric
FAAAA should not be read so broadly as to sharply curtail
the states’ public health authority properly exercised, this
Court should reverse the First Circuit and revive Maine’s
power to effectively police youth access to tobacco on the
Internet.
* 448 F.3d 66 (Ist Cir. 2006).
* Pub. L. No. 103-305, § 601, 108 Stat. 1569, 1605 (1994).
3
I. TOBACCO USE IN THE UNITED STATES
PRESENTS A SERIOUS NATIONAL PUBLIC
HEALTH CRISIS
Youth smoking remains a grave national concern. States
have an obligation to prevent minors from obtaining tobacco
products. That responsibility can be fulfilled under the states’
plenary public health power to pass reasonable laws to reduce
youth access to tobacco. Acting within this broad public
health power and to fulfill its obligation, in 2003, Maine
passed legislation regulating retailers who sell tobacco via the
Internet and mail or phone order venues.* The ultimate goal
of the legislation is to reduce youth access to cigarettes and
thereby reduce youth smoking prevalence.
Tobacco use continues to be the leading preventable cause
of death in the United States, accounting for an estimated
440,000 deaths each year.” In addition, for every one person
who dics as a result of a smoking-related disease, twenty
more people suffer from at least one serious illness due to
smoking.” In an ongoing effort to investigate the health
effects of smoking, the U.S. Surgeon General has repeatedly
concluded that smoking causes a substantial number of dis-
cases and other adverse health effects.’ The list of cancers,
cardiovascular and respiratory diseases, reproductive effects,
and other health conditions associated with smoking, as
*L.D. 1236 (121st Maine Leg.) (codified at Mr. REV. STAT. ANN. tit.
22 $$ 1551, 1855-C, & 1555-D (West 2004)).
* U.S. Der’r of HeacTu & HUMAN Services, THE HEALTH CONSE-
QUENCES OF SMOKING: A REPORT OF THE SURGEON GENERAL 9 (2004)
{hereinafter HEALTH CONSEQUENCES].
“US. Derr oF HteacrH & HUMAN SERVICES, CENTERS FOR DISEASE
CONTROL & PREVENTION, CIGARETTE SMOKING - ATTRIBU TABLE Mor-
BiDITY — UNITED STATES. 2000 Morpipify AND MORTALITY WEEKLY
Report (2003), available at hip: ‘www.cde.gov mmwr preview/mmwr
html’mm523Sa4.htm.
” HEALTH CONSEQLENCES, supra note 5, at | (executive summary).
4
identified by the Surgeon General over the past 43 years, is
far too long to enumerate here.” Further, the Surgeon
General has concluded that smoking harms nearly every
bodily organ and generally diminishes the overall health of
smokers.
The national public health crisis resulting from tobacco use
is perpetuated by the tobacco industry’s success in addicting
America’s children. A majority of tobacco users initiate use
before age eighteen.'’ An estimated 4,000 kids try their first
cigarette each day, and about 416,000 minors enter the ranks
of daily smokers every year.'' The Centers for Disease Con-
trol and Prevention (CDC) reports that about thirteen percent
of middle school students and twenty-eight percent of high
school students are current tobacco users. '* Cigarette smok-
ing is by far the most common form of tobacco use exhibited
“Jd. at 2-6 thl.1.1. Most recently, the Surgeon General expanded that
list to include the following newly discovered smoking-attributable dis-
cases: abdominal aortic aneurysms, acute mycloid leukemia, cataracts,
cervical cancer, kidney cancer, pancreatic cancer, pneumonia, periodonti-
tis, and stomach cancer. /d. at |.
* Id at &.
U.S. Dep't OF HEALTH & HUMAN SERVICES, PREVENTING TOBACCO
Ust AMONG YOUNG PEOPLE: A REPORT OF THE SURGEON GENFRAL
(1994) (executive summary) [hereinafter PREVENTING TOBACCO USE
AMONG YOUNG PEOPLE].
' Campaign for Tobacco-Free Kids, Smoking and Kids Factsheet
(2007), available at http://tobaccofreekids.org/research/ factsheets’pdf/
0001 pdf
' U.S. Der’ oF HEALTH & HUMAN SERVICES, CENTERS FOR DISEASE
CONTROL & PREVENTION, YOUTH TOBACCO SURVEILLANCE — UNITED
STATES, 2001- 2002 (May 19. 2006), available at http.) /www.cde gov!
mmwr/preview/ mmwrhtml/ss5503al. htm [hereinafter YOUTH TOBACCO
SURVEILLANCE]. Percentages are based on data collected from 2001 to
2002.
5
by this vulnerable population.'’ While cigarette smoking
among high school students decreased from the late 1990s to
2003, its pervasiveness from 2003 to 2005 remained un-
changed. '*
Smoking at an early age means more exposure to the
harmful effects of tobacco and more harm to the smoker. Of
all children under eighteen years old living today, an
estimated 6.4 million will die prematurely as adults because
they began to smoke during adolescence. '° Accepting the
conclusions of the Surgeon General and scores of medical
and public health professionals, this Court has recognized that
“tobacco use, particularly among children and adolescents.
poses perhaps the single most significant threat to public
health in the United States.”'*
The CDC has urged states to develop and maintain com-
prehensive tobacco control programs to reduce tobacco use
among youth and routinely evaluates and rates states’ pro-
grams and recommends improvements. |’ Congress, pursuant
to its spending power, has conditioned federal funding of
state block grants for substance abuse prevention and treat-
ment on states’ enactment and enforcement of youth tobacco
‘Id The Centers for Disease Control and Prevention report that 9.8
percent of middle school students and 22.5 percent of high school students
curiciitly siwOKe Cigarettes. Ad
“U.S. Der’) OF HEALTH & HUMAN SERVICES, CENTERS FOR DISEASE
CONTROL & PREVENTION, CIGARETTE UsF AMONG HIGH SCHOOL
STUDENTS—UMTED STATES, 1991-2005 (uly 7, 2006), available at
hitp:// www. cde zov/mmwr preview/mmwrhtml/mmS526a2.htm.
U.S. Der’ r OF HEALTH & HUMAN SERVICES, CENTERS FOR DISEASE
CONTROL & PREVENTION, SUSTAINING STATE PROGRAMS FOR TOBACCO
CONTROL DATA HIGHLIGHTS 2004 (2004), available at http://www.cde.
gov tobacco datahighhights: index.htm.
* Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 161 (2000).
YOUTH TOBACCO SURVEILLANCE. supra note 12.
6
laws.'* In an attempt to ameliorate the public health crisis
caused by smoking and in response to the federal govern-
ment’s instigation, states have taken necessary steps to pre-
vent children and teens from easily obtaining tobacco
products from brick-and-mortar retailers like local conven-
ience stores or readily available vending machines.'? How-
ever, states now face a new, more insidious challenge:
youngsters easily and increasingly accessing tobacco products
from Internet-based retailers.
il. AS YOUTH USE OF THE INTERNET
INCREASES AND THE NUMBER OF ONLINE
TOBACCO RETAILERS MULTIPLIES, THE
STATES’ ABILITY TO PREVENT YOUTH
ACCESS TO TOBACCO DIMINISHES
Internet use among children and adolescents is widespread
and begins at an early age.’ As a result, children and adoles-
cents today have been referred to as the “Net Generation.”
Once children reach grades five and six, their level of under-
standing of the complexity of the Internet matches that of
5
adults.” A vast majority of teenagers in the United States—
' Synar Amendment, 106 Stat. 394, P.L. 102-394, July 10, 1992, Sec.
1926, 42 U.S.C. § 300x-26(b)(1) (2000). U.S. Department of Health and
Human Services promulgated final regulations in 1996 implementing the
Synar Amendment. See 45 C.F.R. Part 96.
See, e.g., Me. REV. STAT. ANN. tit. 22 §§ 1555-B(1) (retail sales),
§ 1555-B(2) (sales to minors prohibited), § 1553-A (vending machines)
(West 2004). Maine has had great success in this regard.
““U.S. Dep’t OF EDUCATION, NATIONAL CENTER FOR EDUCATIONAL
STATISTICS, COMPUTER AND INTERNET USE BY CHILDREN AND ADOLES-
CENTS IN 200]: STATISTICAL ANALYSIS REPORT 37 (2003).
“'Don Tapscort, GROWING Up DicirAt: THE RISE OF THE NET
GENERATION 15 (1998).
“Zheng Yan, What Influences Children’s and Adolescents’ Under-
standing of the Complexity of the Internet, 42 Developmental Psychol.
418. 426 (2006).
7
almost ninety percent of those aged twelve to seventeen—use
the Internet, an increase of four million teens since 2000.”°
More than half of these youth say they log on at least once
every day and almost one-quarter access the Internet several
times daily.“* Teens’ use of the Intermet exceeds that of adults
by over twenty percent.”
Unmonitored access to the Internet is readily available to
children and teens. Teenagers can log onto the Internet from
home, school, a friend’s house, a library, or other locations
such as a community center or house of worship.*° While
many parents try to monitor and restrict their children’s
Internet use by using “filters”—software designed to block
** Amanda Lenhart et al., Teens and Technology: Youth Are Leading
the Transition to a Fully Wired and Mobile Nation, Pew Internet &
American Life Project, at i (2005). See also U.S. Dep’T OF COMMERCE.
ECONOMICS AND STATISTICS ADMINISTRATION, NAT'L TELECOM-
MUNICATIONS AND INFORMATION ADMINISTRATION, A NATION ONLINE:
HOW AMERICANS ARE EXPANDING THEIR USE OF THE INTERNET
(Feb. 2002) | (executive summary), available at http://www.ntia.doc.gov
‘ntiahome/dn/anationonline2.pdf:; Health Policy Guide, Center for Health
Improvement, Penalties for Illegal Sales to Minors, available at www.
healthpolicyguide.org/do.asp?id=3148 (“U.S. Census data show that house-
holds with children younger than age 18 are more likely to have Internet
access than houscholds without children (62% versus 53%), and that 90%
of children between the ages of 5 and 17 used computers in 2001.”
(citations omitted)).
“* Lenhart, supra note 23, at 4. Fifty-one percent of youth log on daily,
up trom forty-two percent in 2000. /d.
Another study, which sampled 261 seventh and tenth graders from sub-
urban California public schools. found that 9| percent of participants used
the Internet at home on an occasional or regular basis. Elisheva F. Gross.
Adolescent Internet Use: What We Expect, What Teens Report, 25 Ap-
plicd Developmental Psychol. 633. 640 (2004). Between forty and sixty
percent of participants reported going online on a random single day
within the period of the study. /d
~* Lenhart, supra note 23, at i.
"Id at &.
8
access to sites parents do not want their children to visit—this
software often fails to restrict minors’ access to online to-
oan a ae
bacco retailers’ websites.
Not only has youth Internet use grown exponentially, but
“the scope of teens’ online lives has also broadened” and
“intensified,”** including making online purchases.”” Over
forty percent of online teens, or nine million youth, have
made an Internet purchase.*” The number of teen online
shoppers has grown a strikingly significant seventy-one per-
cent since 2000.*' Today, “{b]Jecoming an online consumer is
a rite of passage that many Americans now experience during
their teenage years.”** Hence, “(mJarketing and selling
[tobacco products] to minors is almost a logical consequence
of Web-based retailing.”**
As the number of youths logging on to the Internet steadily
rises, sO too does the number of Internet retailers selling
*” Id. at 7-8. Compare www.cigarettesexpress.com (stating site is reg-
istered with parental control software, including CyberSitter™, Net
Nanny ®), Cyber Patrol®, and Surf Watch) with John H. Knowles, Jr. ct
al., Internet Sales of Tobacco: Heading Off the New E-pidemic, 25 J. oF
PUB. HEALTH POL’ y, 58, 64 (2004) (“It is hardly a challenge for computer
Savvy teenagers to find a cyber-café or a friend with unrestricted access to
the [I|nternet. One tobacco retailing site, www.peacefire.org, even en-
courages users to go to their instructions on ‘How to disable your block-
ing software, by proclaiming, ‘It's not a crime to be smarter than your
parents.””).
*“ Lenhart, supra note 23, at i. Youths tend to get involved in online
activities that are unavailable in their local communities. Mechthild
Maczewski, Exploring Identities Through the Internet: Youth Experiences
Online, 31 CHitD & YouTH Care F., LLL, 117 (2002).
>
-
* Lenhart, supra note 23, at i.
" Id.
"Id.
"Id. at 36.
* Knowles, supra note 27, at 60.
9
tobacco products.** From February to November 2000 alone,
the number of websites selling cigarettes increased by seventy
percent.” > Due to the evanescent nature of these ventures, it
is virtually impossible to enforce youth access laws at the
point of purchase.
Given the enormity of the public health crisis created by
tobacco use, legislators and public health scholars agree that
limiting youth access to tobacco is critical, since tobacco
addiction most often begins during childhood or adoles-
cence.” However, to be effective tobacco control must be
comprehensive.’’ As access to tobacco products from brick-
See, e.g, Kurt M. Ribisl et al., Weh Sites Selling Cigarettes: How
Many Are There in the USA and What Are Their Sales Practices?, \0
TOBACCO CONTROL 352, 355 (2001) (exploring keyword search results
from various popular internet search engines to estimate the number of
online cigarette vendors).
** A. Bryant et al., Online Sales: Profit Without Question, 11 TOBACCO
CONTROL 226, 226 (2002). These websites are easily accessed in a matter
of seconds. For example, a Google™ search using the phrase “buy
cigarettes” yielded hundreds of “hits” for online cigarette vendors’
websites, in only .15 second. The search, which was done on a personal
computer without filtering software, yielded 2,250,000 results of various
websites containing the exact phrase “buy cigarettes.” Nineteen of the
first twenty results included the following online retailers: www.discount
cheapeigarettes.com,; www.telesmokes.com, www.!00I cigarettes.com;
www.oklahoma outlet.com; www. cigaretescapress.com;, WWW.cigarettcs-
online.biz; www.smoker-heaven.com, www.bigchiefcigarettes.com; www.
cheap-cigarettes-shop.net, www.smokesonsale.com: www.cigline.net, www.
totalsmokes.com; www.buycheapeigareties.com, www.onlinecheapeigar-
ettes.com; www.dirtcheapcigarettes.com.
© PREVENTING TOBACCO USE AMONG YOUNG PEOPLE, supra note 10.
* See U.S. Dep't oF HEALTH & HUMAN SERVICES, CENTERS FOR Dis-
FASE CONTROL & PREVENTION, PROMISING PRACTICES IN CHRONIC
DISEASE PREVENTION AND CONTROL: A PUBLIC HEALTH FRAMEWORK
FOR ACTION 8-2 (2003) (“[T]he comprehensive approach . . . has been the
most successful in reducing tobacco use, and . . . statewide comprehensive
approaches [are] particularly effective”); U.S. DeP’T OF HEALTH &
HUMAN SERVICES, REDUCING TOBACCO USt: A REPORT OF THE SURGEON
10
and-mortar retailers becomes more difficult due to effective
enforcement, adolescents will increasingly turn to Internet
vendors to purchase tobacco. Studies confirm that the nature
of the Internet, so immensely broad in scope and dynamic in
nature,» allows minors to purchase cheaper, untaxed tobacco
products with relative ease.’ As cyberspace acts as a risk-
free zone where minors can anonymously purchase tobacco,”
unrestricted online tobacco sales create a major barrier to
comprehensive youth tobacco control. “Left unchecked,
rising Internet cigarette sales have the potential to undermine
decades of progress in reducing youth and adult smoking
rates achieved by raising prices.”*!
GENERAL I 1 (2000) (“A comprehensive approach . . . has emerged as the
guiding principle for future efforts to reduce tobacco use.”).
* Joanna E. Cohen ct al., Tobacco Commerce on the Internet: A Threat
to Comprehensive Tobacco Control, 10 TOBACCO CONTROL 364, 366
(2001).
” Bryant, supra note 35, at 226. See also U.S. General Accounting
Office, Report to Congressional Requestors, /nternet Cigarette Sales:
Giving ATF Investigative Authority May Improve Reporting and Enforce-
ment (August 2002)\(describing the difficulties of enforcing tax laws on
Internct cigarette vendors and the evanescent nature of such vendors),
available at www.gao.gov/new.items/d20743.pdf.
* Christopher Banthin et al., Legal Approaches to Regulating Internet
Tobacco Sales, 32 J. of LAW, MED. & ETHICS 64, 64 (2004).
*' Kurt M. Ribisl ct al., Internet Cigarette Sales, Briefing to the Con-
gressional Task Force on Tobacco and Health, July 17, 2006, Washington,
DC, available at http://www.sph.unc.edu/images/stories/news/Ribisl_
InternetCigaretteSales.pdf . See also Knowles et al., supra note 27, at 59
(pointing out that “{I}nternet sales have the potential to erode the gains
made by tobacco control”) (citations omitted).
While the potential for youth online tobacco sales is present, and con-
trolled studies demonstrate the case with which youth can make such
purchases (see infra notes 42-47 and accompanying text), scant data is
available on the actual level of youth online tobacco purchases. See
Campaign for Tobacco-Free Kids, Where Do Youth Smokers Get Their
Cigarettes (2007), available at http:’/tobaccofreekids.org/research/fact
1]
The Internet serves as a virtually effortless conduit to un-
derage smokers’ access to tobacco products largely because
online tobacco vendors do not adequately prevent tobacco
sales to minors.*” A central obstacle to online youth tobacco
control is vendors’ nominal—if any—efforts at verifying a
customer's age.** A 2003 study reported that online cigarette
vendors sold cigarettes to minors in about 92 percent of
sheets/pdf/0073.pdf (“The 2003 National Survey on Drug Use and Health
(NSDUH) found that among 12 to 17 year olds who had smoked in the
last month, more than three out of five (77%) had purchased their own
cigarettes. . .. and a small portion purchased cigarettes over the Internet or
through the mail (2.6% and 2.9%, respectively)... . While there have
been more recent NSDUH surveys, no questions on youth access have
been asked since 2003.” Id. (emphasis added).
Even if current rates are low nationally, a state with an effective en-
forcement program at brick-and-mortar stores may push kids to the Inter-
net for tobacco purchases. The irony of the impact of the First Circuit's
striking down of the Maine law is that Maine is left with little ability to
effectively stop youth online sales, sales that are likely to increase due to
the State’s successful efforts at brick-and-mortar stores.
* See, e.g., Bryant, supra note 35, at 226-27; see also Knowles, supra
note 27, at 59 (“Unger, Rohrbach and Ribisl (9) reported that only 8 % of
vendors required submission of a photo ID for proof of legal age, with
most sites asking only that customers ‘certify’ they are over 18 years of
age.”). Compare websites listed supra note 35: Of those nine-teen sites,
vily tues tad meaningful age verification and purchaser identification
procedures in place. Other sites, while posting that the purchaser must be
at least 18 (21 in some cases), did not require any proof, but put the onus
on the purchaser with language such as: “By placing an order at Cigline.
you attest that you are at least 21 years of age and legally able to purchase
and possess online cigarettes in your own state and community.” See
www.cigline.net.
* Banthin, supra note 40, at 64. See also Kurt M. Ribisl et al., Are the
Sales Practices of Internet Cigarette Vendors Good Enough to Prevent
Sales to Minors?, 92 AM. J. PUB. Heatru 940, 940 (June 2002) (*Most
Internet cigarette vendors use inadequate procedures for age verification.
Youths who misrepresent their age and obtain a money order could poten-
tially purchase cigarettes on-hne without difficulty.”).
12
attempted purchases.’ In each successful purchase, the con-
sumer’s age was never verified upon delivery;* rather, most
packages were left at the door.*° In another study, over 70
percent of online tobacco retailers who received money
orders from minors sent cigarettes to the underaged customers
without any age verification.*”
No simple solution exists to resolve the unique challenges
presented by online tobacco commerce.” Public health and
tobacco control scholars suggest that proactive solutions be
made to address online threats to comprehensive control.
Recognizing the Internet “gap” in youth access enforcement
and desiring to close that casy avenue to cigarette purchases,
Maine enacted legislation regulating the delivery of tobacco
via the Internet. This law is a critical component of Maine’s
comprchensive plan to curtail youth access to tobacco prod-
ucts, and thereby reduce youth smoking prevalence.
“Kurt M. Ribisl et al., Brief Report: Internet Sales of Cigarettes to
Minors, 290 J. AM. MED. 1356, 1357 (2003).
* fd. at 1358. In a 2004 study, 82 of 89 young participants reported
that they pretended to be older while online, and some said they did so “to
evade online age restrictions.” Gross, supra note 24, at 643.
* Ribisl, supra note 44, at 1359.
*” Bryant, supra note 35, at 227.
* Although state enforcement actions against individual websites or
vendors have been used in some instances, such actions have a narrow and
fleeting impact. The website operator can easily establish a new web ad-
dress and begin selling cigarettes from that site almost immediately after a
state has taken action. State enforcement actions also have modest impact
because the Internet tobacco sellers are often based overseas, presenting
serious hurdles to service of process and jurisdiction. Hence, a state desir-
ing to have a comprehensive and effective impact on Internet tobacco
sales must focus, as Maine has, on the delivery process. See generally
GAO Report, supra note 39.
13
lil. THE FIRST CIRCUIT’S DECISION UNREA-
SONABLY PREVENTS MAINE AND OTHER
STATES FROM COMPREHENSIVELY CON-
TROLLING YOUTH ACCESS TO TOBACCO
The First Circuit improperly ruled that the FAAAA pre-
empts provisions of the Maine tobacco delivery law requiring
retailers to use carriers that monitor the point of delivery and
imputing knowledge to those carriers that deliver contraband
tobacco despite identifiable markings. The decision severely
limits Maine’s ability to regulate Internet or mail-order to-
bacco sales as part of the State’s comprehensive plan to
reduce youth smoking. This Court should reverse the First
Circuit, reinstating state police power as it is traditionally
exercised in this area.
A. Maine’s Tobacco Delivery Law Was Properly
Enacted Pursuant to the State’s Police Powers
and is a Necessary Response to Congress’s Call
to Reduce Youth Access to Tobacco
The states’ authority to enact and enforce laws designed to
prevent minors’ access to tobacco products sold via the
Internet is as broad as the power to prevent such sales at
brick-and-mortar stores. The states’ obligation to regulate
Internet tobacco sales is no less than the obligation to regulate
brick-and-mortar sales. Tiadiiional police powers include
such regulation and federal law suggests such an obligation.
The First Circuit's decision virtually obliterates the states’
police power in this area as it relates to Internet sales and
Clashes with important federal public health laws that impose
on states the obligation to prevent youth access to tobacco.
Congress has directly recognized and encouraged the states’
role in enforcing youth access tobacco laws. Pursuant to the
1992 Synar Amendment, Congress directly mandates state
regulation of youth access to tobacco by conditioning federal
funding on state enactment and enforcement of laws banning
14
the sale of tobacco to minors.*” Congress has not yet taken
action to restrict Internet tobacco sales, but has, so far, left
that to the states. ©
The judiciary has also acknowledged that states play a role
in preventing youth access to tobacco. In Lorillard Tobacco
Co. v. Reilly, 533 U.S. 525, 552 (2001), this Court recognized
“established congressional policy that supports” a state role in
the regulation of tobacco sales. Similarly, the Fourth Circuit
emphasized the “clear congressional intent that States exer-
cise their traditional police powers and take a primary role in
attacking the problem of youth access to tobacco products.”
Brown & Williamson Tobacco Corp. v. Food and Drug
Admin., 153 F.3d 155, 175 (4th Cir. 1998), aff'd, 529 U.S.
120 (2000).
Pursuant to its police powers and to help it comply with the
Synar Amendment, Maine properly enacted a public health
law “to Regulate the Sale of Tobacco Products and to Prevent
the Sale of Cigarettes to Minors.”*' Maine’s tobacco delivery
* 42 U.S.C. § 300x-26(b)(1) (2000) (“Synar Amendment”) (States will
enforce their tobacco laws “in a manner that can be reasonably expected
to reduce the extent to which tobacco products are available to individuals
under the age of 18.") The Synar Amendment was originally enacted in
1992 as Section 1926 of Title XIX of the Federal Public Health Service
Act. See also Joseph R. DiFranza and G.F. Dussault, The Federal
Initiative to Halt the Sale of Tobacco to Children—the Synar Amendment,
1992-2000: Lessons Learned, \4 TOBACCO CONTROL 93, 97 (2005)
(noting that Maine 1s one of the few states that has endeavored to promote
maximum public health benefits by successful enforcement of laws ban-
ning the sale of tobacco to minors).
© See. e.g.. H.R. 2824 (2004), the “Internet Tobacco Sales Enforce-
ment Act” and S. 1177 (2004), the “Prevent All Cigarette Trafficking
Act“ (PACT), both of which were failed attempts at federal legislation
regulating Internet sales and sellers of tobacco.
*' L.D. 1236 (121st Maine Leg.) (codified at Mt. REV. STAT. ANN. tit.
22 §§ 1551, 1555-C, & 1555-D (West 2004)).
15
law does so by imposing, among other things, ~ three
requirements. First, the law compels licensed retailers to
choose a delivery service or carrier that provides age and
identity verification and signature services at the point of
delivery
to consumers in Maine.°? Second, the Act mandates that
tobacco retailers “clearly mark the outside of the packages of
tobacco products to be shipped to indicate that the contents
are tobacco products and to show the name and State of
Maine tobacco license number of the tobacco retailer.”™*
Third, the law imposes penalties on any person who “know-
ingly transport[s} . . . a tobacco product purchased from a
person who is not licensed [in Maine] as a tobacco retailer.”””
A carricr is “deemed to know” that a given package contains
a tobacco product if the package contains markings in accor-
dance with § 1555-C(3)\(b) or if the package was received
3
*" Maine’s law also consists of several additional provisions designed
to comprehensively curtail youth tobacco access. For one, all retailers
must be licensed and are subject to several restrictions on the acceptance
of an order for delivery within the State of Maine. Mr. Rtv. STAT. ANN.
tt. 22 $$ 1855-C(1)-(2); see also id. at § 1555-C(2\B) (requiring retailers
tO receive payiicnt by cicdu card or check for sales linked to online
advertisements). Retailers must also report sales to the Maine Bureau of
Revenue Services. /d. at § 1555-C(4). Further, Maine's legislation pro-
hibits the use of another person's name in ordering tobacco products. /.
§ 1555-C(5).
Mer. REV. STAT. ANN. tit. 22 $$ 1555-C(3"C\1)-(3). The statute
requires the package addressee to be the purchaser, who must be over age
eighteen and personally sign for the package upon delivery. A valid photo
ID ts required for any purchaser appearing to be under age twenty-seven.
“Jd at $ 1855-C(3B). This provision ts not a contested issue in the
Case at hand, but bears on the imputed knowledge provision in § 1555-D.
Jd. at § 1555-D.
16
from a known unlicensed retailer as identified by the At-
torney General. °
At least ten other states have passed similar legislation
aimed at preventing youth access to tobacco online.*’ Like
the Maine law, tobacco control delivery laws in other juris-
dictions require retailers to use a carrier with age and signa-
ture verification upon delivery of tobacco products. For
example, the State of Virginia requires retailers to use a deliv-
ery service that provides signature acceptance of delivery and
proof of age through “a valid, government-issued identifica-
tion” at delivery time.** Similarly, the State of Utah allows
mail-order tobacco sales if the retailer requires a “postal
authority or other common carrier to,” among other things,
obtain a signature and verify the age of the person taking the
delivery.” Many other states regulate youth access to to-
bacco via Internet delivery sales cither by banning such
* Id. Maine’s Office of the Attomey Gencral maintains lists of licensed
retailers and known unlicensed retailers, which are made available to car-
riers. /d. § 1555-D-1. See also New Hampshire Motor Transport Ass‘n v.
Rowe, 377 F. Supp. 197, 211 & n.60(D. Me. 2005).
” See, e.g., ARIZ. REV. STAT. ANN. § 42-3225(A)(2) (West 2004); DEL.
Cope. ANN. tit. 30, § 5365(a)(2) (West 2004); IND. CODE ANN. § 24-3-5-
S(a) (West 2004): LA. REV. STAT. ANN. § 47:874(A)(2) (West 2004);
OKLA. STAT. ANN. tit. 68, § 317.4(A)(2) (West 2004); Or. REV. STAT.
ANN. § 323.718(1)(b) (West 2004); TEX. HEALTH & SAFETY CODE ANN.
§ 161.455(aX(2) (Vernon 2004); UTAH CODE ANN. § 76-10-105.1(3)(a)
(West 2004); Va. CODE ANN. § 18.2-246.10(2) (West 2004); W. VA.
Covet ANN. § 16-9E-4(a)(2) (West 2004).
“Va. CODE ANN. § 18.2-246.10(2) (West 2004).
* Ura CODE ANN. § 76-10-105.1 (West 2004).
17
60 bd . . . .
sales” or by regulating retailers or affecting carricrs in some
- OF
fashion.
B. Maine’s Tobacco Delivery Law Is Not Pre-
empted By The FAAAA And Therefore The
First Circuit’s Exceedingly Broad Interpre-
tation Of FAAAA Preemption, Should Be
Reversed |
Enacted in 1994, the FAAAA prohibits states from regulat-
ing the prices, routes, or services of air or motor carriers that
transport property.” The FAAAA is not a tobacco control
measure and was not intended to limit states’ powers to police
minors’ access to tobacco. Rather, the FAAAA is specifi-
cally intended to prevent states from engaging in economic
regulation that would eliminate non-uniform air and motor
carrier operations.’
See, e.g. N.Y. PuB. HEALTH LAW § 1399-1 (McKinney 2004); Mb.
CODE ANN., Bus. REG. § 16-223 (2004).
"' See. e.g., ALASKA STAT. § 43.50.105 (Michie 2004); CaL. Bus. &
PROF. CODE § 22963 (West 2004); CONN. GEN. STAT. ANN. § 12-285Sc
(West 2004); IDAHO CODE ANN. $$ 39-5701 to -5718; 720 ILL. Coup.
STAT. ANN. $$ 678/5, -/10, -/99 (West 2004); KAN. STAT. ANN. § 79-
3333 (2004), Mic. Compe. LAWS ANN. § 205.431 (West 2004); Mo
ANN. STAT. $$ 407.925 to 932 (West 2004); Nev. REV. STAT. ANN
§ 202.24935 (West 2004); Rl. GEN. LAWS §8§ 11-9-13.11 to -13.19
(2004); TENN. Cope ANN. § 39-17-1504(d) (West 2004); Was. REV.
Copt ANN. §$§ 70.155.010, -.105, -.1 10 (West 2004),
"49 U.S.C. § 14501(c)(1) (2000) (°{A] State . . . may not enact or
enforce a law . . . related to a price, route, service of any motor carrier . . .
with respect to the transportation of property.”); 49 U.S.C. § 41713(b\4)(A)
(2000) (“[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 ts transporting
property by aircraft or by motor vehicle. . . .”).
" HLR. Conf. Rep. No. 103-677, at 85-88 (1994), reprinted in 1994
U.S.C.C.A.N. 1715, 1758-60.
18
Maine's tobacco delivery law is a public health measure
aimed at regulating online tobacco retailers and preventing
the illegal delivery of tobacco products to minors by any-
one—including carriers. As such, the tobacco delivery law
does not significantly affect carrier services in any way
sufficient to trigger FAAAA preemption. The FAAAA trumps
only state laws that impose on carriers economic regulations
such as rate and tariff measures; contrary to the First Circuit's
conclusion, the FAAAA was not intended to reach essential
public health laws that are clearly within the province of a
state's police powers.
The First Circuit acknowledged that the ‘cgislative history
of the FAAAA reveals Congress's intent to preempt only
state economic regulation,” and further noted the limited
preemptive interpretation this Court applied in its only case
involving the FAAAA.®° Nevertheless, the First Circuit side-
lined all evidence of Congress’s preemptive intent, emphasiz-
ing instead that “legislative history cannot trump the statute’s
[plain] text.”°° Relying on other federal legislation and case
™ The First Circuit noted that “there is some support in the legislative
history .. . that the FAAAA preempts only state economic regulation” and
cited to support in the Conference Committee Report for the Act New
Hampshire Motor Transport Ass'n v. Rowe, 448 F.3d 66, 77 (Ist Cir.
2006).
* See Rowe, 448 F.3d at 77 (citing Columbus v. Ours Garage &
Wrecker Serv., 536 U.S. 424, 440 (2002)).
* Rowe, 448 F.3d at 77. The First Circuit noted that “{iJn every
preemption case, ‘the purpose of Congress is the ultimate touchstone.”
id. at 74 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). The
First Circuit further remarked that “[t}he primary focus is on the ‘plain
wording’ of the statute because the text ‘contains the best evidence of
Congress’ pre-emptive intent.” " Rowe, 448 F.3d at 74 (citing Sprictsma v.
Mercury Marine, 537 U.S. 51, 62 (2002)). The court acknowledged the
relevance of “ ‘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
19
law, the First Circuit interpreted the FAAAA as “deliberately
expansive” and broadly preemptive in purpose,”’ holding that
the FAAAA was not intended to preempt only a narrow
class of economic regulations while excluding 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 fashioning
the FAAAA preemption provisions.°
Furthermore, the First Circuit erroneously applied this
Court’s requirement that to find a state law is “related to”
carrier services, the law must have a “connection or reference
to” carrier services” or a “forbidden significant effect” on
those services.’” The First Circuit dismissively read “signifi-
cant” out of the standard and substituted a “logical” effect.”'
This needlessly broadens the FAAAA’s preemptive effect
and ignores this Court’s statement in Morales that there are
instances of state regulation “relating to” prices, routes, or
scheme to affect business, consumers and the law.’” Rowe, 448 F.3d at 74
(citing Medtronic, 518 U.S. at 486).
*” Rowe, 448 F.3d at 75-78.
= Id at 75.
™ Morales v. Trans World Airlines. Inc., $04 U.S. 374, 384 (1992).
Td. at 388 (finding that “it is clear as an economic matter that state
resirichions on fare advertising have the forbidden significant effect upon
fares”).
“' “We agree with the district court that there is no such quantification
requirement [to measure forbidden significant effect]. The cases in this
area have looked to the /ogica/ effect that a particular scheme has on the
delivery of services or the setting of rates and have not required the pre-
sentation of empirical evidence.” Rowe, 448 F.3d at 82, n. 14 (emphasis
added). The First Circuit further emasculated this Court's standard by
stating that Maine's age veritication procedures “all could affect timely
deliveries.” /d at 79 (emphasis added).
20
services that would not be preempted.” This Court recog-
nized the limits of preemption in Morales, stating that its
ruling “does not give the airlines carte blanche to lie and
deceive consumers... .” ” Nor should any transporter of
contraband tobacco products have carte blanche to disregard
the contents of its cargo.
C. The Decision Below Prevents Maine From
Regulating The Critical Point Of Delivery Of
Tobacco To Minors, Thus Impairing Maine
From Fulfilling The Goal Of The Synar
Amendment To Reduce Minors’ Access To
Tobacco
The First Circuit’s conclusion that Congress intended the
FAAAA to preempt state public health laws like Maine’s
tobacco delivery provisions” is also incompatible with the
goals set forth in the Synar Amendment.’* The Synar
Amendment requires that states enforce laws prohibiting
youth tobacco sales. Although in 1992 such sales took place
almost exclusively in brick-and-mortar stores and the
enforcement mechanism focused on brick-and-mortar stores,
nothing in the Synar Amendment limits the states’ overall
obligation to such sales. Yet the First Circuit’s decision
*“Nor need we address whether state regulation of the nonprice
aspects of fare advertising (e.g. state laws preventing obscene depictions)
would similarly ‘relat([e] to’ rates; the connection would obviously be far
more tenuous.” Morales, 504 U.S. at 390. While the case at hand in-
volves carrier services rather than prices, the connection is at least equally
as tenuous.
* Id. at 390-91.
* See supra note 67 and accompanying text; see also Rowe, 448 F.3d
at 78 (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.”).
® See supra notes 18 and 49 and accompanying text.
21
substantially impairs the ability of the states to limit sales to
those covered by sound, reasonable restrictions on the retail
sale of tobacco products when the sale is consummated over
the Internet and delivered by a common carrier. With no
detail or explanation, the court blithely states that the Synar
Amendment and a broad interpretation of the FAAAA’s
preemptive force “can exist harmoniously because states may
pass laws to curb underage smoking without passing laws
‘related to’ carrier prices, routes, or services.””° Because
physical delivery is a crucial part of the illegal sale,” a
regulation that does not impact the carriers will be far less
effective. And the First Circuit's overbroad interpretation of
the FAAAA preemption clause makes such regulation far
more difficult. *
States must regulate the point of physical delivery of to-
bacco to effectively combat youth access to tobacco and
” Rowe, 448 F.3d. at 78, n.12.
™ See Mt. REV. STAT. ANN. tit. 22 § 1555-B (West 2004) (“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.”). See also Ribisl,
supra note 43, at 940 (very few “Internet cigarette vendors stated that they
required photographic age identification at the point of delivery. the
prevailing standard at [brick-and-mortar] retail outlets”).
= Although not emphasized by the First Cireuit, states also desire to
regulate Internet tobacco sales to prevent the tax evasion that such sales
inherently create. Tax evasion not only costs a state financially, such eva-
sion undercuts the public health impact of reduced consumption, espe-
cially by minors, that accompanies higher cigarette prices. The federal
government has attempted to assist states in this effort through the Jenkins
Act. 15 U.S.C. §§ 375-378, which requires tobacco sellers who ship ciga-
rettes across state lines to report sales to the appropriate state tax author-
ity. It is fair to say that the federal government has invested no resources
in enforcement of the Jenkins Act. See GAO Report, supra note 39. As
the GAO Report explains. state governments have been active in indirect
enforcement of the Jenkins Act, at least attempting to have an impact on
Internet and mat) order tobacco sales, while the federal government has
taken no action.
22
receive federal funding conditioned under the Synar Amend-
ment. Congress did not intend an expansive preemption
clause when adopting the FAAAA; the focus was and
remains On economic impact on carriers. Indeed, the district
court acknowledged that if Congress were to be presented
with the issue today, it would not have intended FAAAA
preemption of Maine’s tobacco delivery law.”” Nevertheless,
that court and the First Circuit put on blinders, performed
strict construction that denies logic, history, and this Court’s
previous decision on FAAAA preemption, and found Maine’s
tobacco delivery law preempted.
Any regulation of the point of delivery of tobacco is
naturally going to have some effect on carriers who deliver
the tobacco products. Under the First Circuit’s exceedingly
broad interpretation of “relating to” in the FAAAA,” every
hypothetical regulation policing the point of delivery—
including an outright ban on Internet sales—could have a
“forbidden significant effect” on carrier services™' and there-
” The district court opined:
Given the deadly health consequences, there are no persuasive argu-
ments 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 steps to
protect the health of its children, Congress would vote to prohibit
what Maine ts trying to do. But the federal legislation that | must
interpret comes from a push to deregulate airlines and motor carriers
gencrally, without regard for the topic or goal of the preempted state
regulation . . .
New Hampshire Motor Transport Ass'n v. Rowe, 377 F. Supp. 2d 197,
206 (D. Me. 2005).
“ See Rowe, 448 F.3d at 75, 78-79 (noting that the FAAAA’s use of
the phrase “relating to” intended the statute to have a broad preemptive
purpose).
*" Id. at 78-79.
23
fore may be rendered unenforceable through federal pre-
emption.
Maine’s inability to regulate the point in time when to-
bacco sold online is placed in the hands of a minor under-
mines the State’s attempt to achieve comprehensive youth
tobacco control, and threatens to nullify the progress Maine
has made to date."’ Therefore, the First Circuit’s overly
broad interpretation of FAAAA preemption directly conflicts
with Congress's goal that states take effective action to —
reduce youth access to tobacco.
In rejecting the Attorney General’s argument that laws
enacted pursuant to a state’s police power to protect the
health and welfare of its citizens are excepted from the
FAAAA’s preemptive force, the First Circuit reasoned that
“an overly broad interpretation of the FAAAA exceptions
‘would swallow the rule of preemption.””*’ Instead, the First
Circuit’s overly broad interpretation of FAAAA’s preemption
derogates the Synar Amendment, through which Congress
“inten[ded] that states take the lead in addressing the under-
age smoking problem.”
STATEMENT OF INTEREST OF AMICUS CURIAE
The Tobacco Control Legal Consortium (“TCLC”) is a
national network of icgai centers providing technical assis-
*" Maine has been praised by the American Cancer Society, the Ameri-
can Lung Association and the Campaign for Tobacco-Free Kids for the
State's effective use of tobacco control funds, particularly as related to
youth access to tobacco and youth smoking. See Campaign for Tobacco-
Free Kids, Broken Promise to Our Children: The 1998 State Tobacco
Settlement Seven Years Later (2008), available at hip: tobaccotreckids.
org reports’ settlements’ 2006/fullreport. pdf.
“ Rowe, 448 F.3d at 76 (citing United Parcel Serv., Inc. v. Flores-
Galarza, 385 F.3d 9, 14 (1st Cir. 2004)).
“id at 78% n.12.
24
tance to public officials, health professionals, and advocates
in addressing legal issues related to tobacco and health, and
supporting public policies that will reduce the harm caused by
tobacco use in the United States. TCLC grew out of collabo-
ration among specialized legal resource centers serving six
states and is supported by national advocacy organizations,
voluntary health organizations, and others.*° In addition,
TCLC prepares legal briefs as amicus curiae in cases in
which its experience and expertise may assist courts in
resolving tobacco-related legal issues of national significance.
TCLC has submitted amicus bricfs in recent cases before
the U.S. Supreme Court; the Supreme Courts of California,
Delaware, Florida, Kentucky, Montana, and Washington; and
the U.S. District Court for the District of Columbia.
Amicus Campaign for Tobacco-Free Kids, a nonprofit
corporation based in Washington, D.C., works to educate the
public and policymakers about effective public and private
sector policies to prevent and reduce tobacco use and its
harms, and to advocate for the adoption of such policies, with
a special focus on preventing and reducing tobacco use
among youth. The Campaign for Tobacco-Free Kids has over
100 member organizations, including health, civic, corporate,
youth, and religious groups dedicated to reducing tobacco use
““ TCLC’s coordinating office is located at the Tobacco Law Center of
the William Mitchell College of Law in St. Paul, Minnesota. Other
affiliated legal centers include the Technical Assistance Legal Center
(TALC) at the Public Health Institute of California, in Oakland,
California; the Legal Resource Center for Tobacco Regulation, Litigation
& Advocacy (TRC) at the University of Maryland School of Law in
Baltimore, Maryland; the Tobacco Control Resource Center (TCRC) at
Northeastern University School of Law in Boston, Massachusetts; the
Smoke-Free Environments Law Project (SFELP) at the Center for Social
Gerontology in Ann Arbor, Michigan; the Tobacco Control Policy and
Legal Resource Center at New Jersey GASP in Summit, New Jersey: and
the Tobacco Public Policy Center at Capital University Law School in
Columbus, Ohio.
25
and its harms, especially among children. Among other
activitics, the Campaign has done education and advocacy
work relating to Internet and mail-order sales of tobacco
products to kids articulating why such sales are harmful to
state efforts to collect applicable taxes; keep tobacco prices
at high rates to discourage smoking, especially in youth;
and diminish the ready access to tobacco products for all
consumers.
Amicus American Lung Association ("ALA") is one of the
nation's oldest voluntary health organizations, with over
300,000 volunteers and affiliates in all fifty states, the District
of Columbia and Puerto Rico. Since cigarette smoking is a
major cause of chronic obstructive lung disease, ALA has
long been active in research, education, and public policy
advocacy on the adverse health effects of tobacco products.
ALA has advocated for the regulation of tobacco products for
more than two decades. Amicus American Lung Association
of Maine” (“ALAME”) is one of the state’s oldest voluntary
health organizations. From tuberculosis to smoking to un-
healthy air, ALAME has fought the most significant threats to
lung health for nearly 100 years. Since cigarette smok:ng
remains the major cause of chronic obstructive lung disease,
the ALAME has long been active in research, education and
public policy efforts to prevent smoking, help those who want
to quit and protect everyone from the health hazard of sec-
ondhand smoke. ALAME has advocated for tobacco product
regulation for more than three decades.
Amicus American Cancer Society, Inc. (“ACS”) has over
three million volunteers nationwide, including 50,000 physi-
clans. The organization's mission is to eliminate cancer as a
major health problem by preventing cancer, saving lives, and
diminishing suffering from cancer, through research. educa-
Legally. the American Lung Association of Maine is part of the
American Lung Association of New England, a non-profit corporation.
26
tion, advocacy, and service. The organization was founded in
1913, and since that time has conducted groundbreaking
research in identifying the use of tobacco products as a major
cause of cancer, and educating the public about its deadly
effects. ACS strongly advocates for tobacco regulation at all
levels of government, including trying to ensure that children
do not have access to this lethal product.
Amicus American Heart Association (“AHA”) is a non-
profit, voluntary health organization with nearly 2,000 com-
munity organizations in the SO states, the District of Colum-
bia and Puerto Rico. AHA’‘s mission is building healthier
lives, free of cardiovascular diseases and stroke, including
reducing tobacco use. AHA has long been active before
Congress and regulatory agencies on tobacco and health-
related matters and has petitioned the FDA on several occa-
sions seeking regulation of cigarettes and other tobacco
products under the Food, Drug, and Cosmetic Act.
Amicus American Legacy Foundation, created as a result of
the 1998 Master Settlement Agreement between 46 states and
the tobacco industry, is dedicated to building a world where
young people reject tobacco and anyone can quit. The
Foundation is a national leader in youth tobacco prevention
with its proven-effective and award-winning truth® mass
media campaign targeted to those twelve to seventeen year
olds most likely to initiate smoking.
Amicus Americans for Nonsmokers’ Rights (“ANR”) is a
national non-profit tobacco control advocacy organization
based in Berkeley, California. Since its formation in 1976,
ANR has been dedicated to protecting nonsmokers’ rights to
breathe smoke-free air in enclosed public places and work-
places and to preventing tobacco addiction among youth.
ANR represents a national constituency of over 8,000 indi-
viduals and organizations concerned about the health risks
that tobacco products pose to the health and safety of smokers
27
and nonsmokers alike and committed to reducing and
preventing tobacco use.
Amicus American Medical Association (“AMA”), an IIli-
nois non-profit corporation founded in 1847, is an association
of approximately 240,000 physicians, residents, and medical
students. Its members practice in every state and in all fields
of medical specialization, and it is the largest medical society
in the United States. Its objects are to promote the science
and art of medicine and the betterment of public health. The
AMA has developed expertise in the pharmacology of nico-
tine, the toxic effects of cigarette smoke, and the socictal
implications of tobacco usage. For many years, the AMA has
been one of the leading anti-smoking organizations in the
United States.
Amicus Maine Medical Association (“MMA”) is a profes-
sional organization founded in 1853 that represents more than
2700 Maine physicians and whose purpose is “to unite and
support the physicians of Maine in promoting the health of
Maine’s citizens, protecting and promoting the quality of
medicine, and supporting the physicians’ function as advo-
cates for their patients.” The MMA is active in representing
the interests of Maine physicians and patients before the
Maine legislature and Executive Branch agencies. Through
its Public Health Committee and its role as a founding
member of the Maine Coalition on Smoking or Health more
than 25 years ago, the MMA has been involved in tobacco
control advocacy in Maine for many years. The MMA has a
particular interest in this litigation because of its advocacy
role in the legislation that is subject to dispute in this matter.
CONCLUSION
For the foregoing reasons, this Court should reverse the
First Circuit's decision, find Maine’s law enforceable. and
return to states the power to comprehensively curtail youth
access to tobacco.
* Counsel of Record
28
Respectfully submitted,
KATHLEEN HOKE DACHILLE *
LEGAL RESOURCE CENTER FOR
TOBACCO REGULATION,
LITIGATION & ADVOCACY
500 W. Baltimore Street
Baltimore, MD 21201
(410) 706-1294
Counsel for Amicus Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.