Amicus Curiae Brief — Rowe v. New Hampshire Motor Transport Ass'n

No. 06-457 net og 298

IN THE

Supreme Court of the Anited States

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, 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

BRIEF FOR AMICUS CURIAE

TOBACCO CONTROL LEGAL CONSORTIUM,

CAMPAIGN FOR TOBACCO-FREE KIDS,

AMERICAN LUNG ASSOCIATION, AND

AMERICAN CANCER SOCIETY

IN SUPPORT OF STATE OF MAINE

PETITION FOR A WRIT OF CERTIORARI

MATTHEW MYERS *

Campaign for Tobacco-Free Kids

1400 Eve Street

Suite 1200

Washington, D.C. 20005

(202) 296-5469

i

-

* Counsel of Record Counsel for Amicus Curiae

—_———

WiLSON-EPES PRINTINGCO , INC - (202) 789-0096 ~— WASHINGTON. D.C. 20001

TABLE OF CONTENTS

TE

INTEREST OF AMICUS CURIAE .........ccccsccseeseseeserees

ITY ctnnicesereencinstensiasninnintonnpantennenenssensesioninsin

I.

Il.

Ii.

TOBACCO USE PRESENTS A PUBLIC

HEALTH CRISIS OF UNPRECEDENTED

a ictnssccensinnaniennnieaninstecenencsenetie

REDUCING THE AVAILABILITY OF

TOBACCO THROUGH RESTRICTIONS

ON INTERNET PURCHASES WILL RE-

DUCE TOBACCO USE AMONG MINORS...

THE FIRST CIRCUIT’S DECISION UN-

REASONABLY RESTRICTS MAINE AND

OTHER STATES FROM CONTROLLING

YOUTH ACCESS TO TOBACCO..............00.

A. Application of the First Circuit’s Decision

Nationwide Will Affect Laws Similar To

Maine’s Across the Country .................00005

B. States Should Be Allowed To Regulate

Where the Federal Government Refuses

STATEMENT OF INTEREST OF AMICUS CURIAE ...

ETT siscissnsiiitiisinichineininninpleitadiinpedennseennioisisinenivnneants

(i)

Page

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15

18

ii

TABLE OF AUTHORITIES

CASES Page

Brown & Williamson Tobacco Corp. v. Food &

Drug Admin., 153 F.3d 155 (4th Cir. 1998),

Fg Be | ee 15

Food & Drug Admin. v. Brown & Williamson

Tobacco Corp., 529 U.S. 120 (2000) ................ 3,13

Granholm v. Heald, 544 U.S. 460 (2005) ............. 13

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525

SUTIN sciisienaieniliciienstiechdaiintieisdaaensisipeiinmasansiinienis 15

N.H. Motor Transp. Ass'n v. Rowe, 448 F.3d 66

ee SE GU icicicnccscinbasersenensapiindiaisniemumintnnieninis 9,10, 11

STATUTES

Federal

eg A Tt cinsisiecsninticinietsiinnninbiieinneniaiin 12

| le | neon 4,12, 15

te ie I iiiirtcnincccennnienninionteniicastosiiioe 9

GO UBAL. © PGSGIGO AIC) neccccccccccceseccresevessscessees 9

gf et St a 9

8 ey) a 9

49 U.S.C. § 41713(D)(4)(B)....... ccc ccceeceseeeesteeeeeeees v)

Federal Aviation Administration Authorizatioii

Act of 1994, Pub. L. No. 103-305, § 106, 108

Is I 8,9

Interstate Commerce Commission Termination

Act of 1995, Pub. L. No. 104-88, § 103, 109

Fe RI SI a cecinicticynnicninscinininiscsenninenestnadneieneiciasiios 9

State

720 Ill. Comp. Stat. Ann. §§ 678/5, 678/10,

ST ecncsscehaichianbeieinesiedidiabsuiianiaaibisaibiibietianibeneiiaininiios 14

2003 Me. Legis. Serv. Ch. 444 oo. eeceeeseeeeeneees 7

i te A ctcietcteciisiictieventenatinniivennin 14

Ariz. Rev. Stat Ann. § 42-3225(A)(2) -cccsseccsssseeeee 13

iil

TABLE OF AUTHORITIES—Continued

Page

Cal. Bus. & Prof. Code § 22963 .............cccceseceeenes 14

Conn. Gen. Stat. Ann. § 12-285¢.0..........cceceeeeeee 14

Del. Code. Ann. tit. 30, § 5365(a)(2)........0..c. 13

Idaho Code Ann. § 39-5701 ef Seq. ......ccccceceeeeeeees 14

Ind. Code Ann. § 24-3-5-5(a) ........ccccccceccceeseeeeeeeees 13

Sy es SA: Oe SI cintentinctcsnnrtonenncsccnnseieneens 14

La. Rev. Stat. Ann. § 47:874(A)(2) ........cccceeeceeeeeee 13

Me. Rev. Stat. Ann. tit. 22, § 1555-C(1) 0... 8

Me. Rev. Stat. Ann. tit. 22, §§ 1555-C(3)(B),

a ee islaieitiaciansesiiteitaiaienisainlaeiiiieinnidiidiiimeneseanane 8

Me. Rev. Stat. Ann. tit. 28-A, §§ 2073, 2077........ 11

Me. Rev. Stat. Ann. tit. 8, §§ 221 ef seq. ....0.......... 12

Me. Rev. Stat. Ann. tit. 17-A, § 1001(a)(B).......... 12

Md. Code Ann., Bus. Reg. § 16-223 ...........000...... 14

Mich. Comp. Laws Ann. § 205.431 wo... eee 14

Mo. Ann. Stat. §§ 407.925 ef Seq. .....cccccccecseeeeneees 14

Nev. Rev. Stat. Ann. § 202.24935 oon 14

N.Y. Pub. Health Law § 1399-11... 14

Okla. Stat. Ann. tit. 68, § 317.4(A)(2)..... eee 13

Or. Rev. Stat. Ann. § 323.718(1)(b) ........... eee 13

R.L. Gen. Laws. § 11-9-13.11 ef seq. .......cccceceeeeee 14

Tenn. Code Ann. § 39-17-1504(d) ........c cece eeeeeeeeeee 14

Tex. Health & Safety Code Ann. § 161.455(a)(2).. 13

Utah Code Ann. § 76-10-105.1 wo... eeeceeeeeee eens 13

Va. Code Ann. § 18.2-246.10(2) ........ecceeeseeeeees 13

Wash. Rev. Code Ann. §§ 70.155.010 ef seq. ....... 14

W. Va. Code Ann. § 16-9E-4(a)(2) .......ccccccceceeeeeee 13

OTHER AUTHORITIES

Centers for Disease Control and Prevention, Best

Practices for Comprehensive Tobacco Control

Programs (August 1999) 00.0... ccceseeeeeeceeeeeees 12

iV

TABLE OF AUTHORITIES—Continued

Frank J. Chaloupka et al., Prices, Policies and

Youth Smoking, 98 Addiction $1 (May 2003)...

H.R. Conf. Rep. No. 103-677 ..........:ccccseseeceeeseeeees

Jennifer B. Unger et al., Are adolescents attempt-

ing to buy cigarettes on the internet?, 10

Tobacco Control 360 (2001).........cccccceseeeeseeeeeee

Kurt M. Ribis!l et al., Brief Report: Internet Sales

of Cigarettes to Minors, 290 Journal of Ameri-

can Medicine 10 (Sept. 10, 2003).............. eee

National Household Survey on Drug Abuse, How

Youths Get Cigarettes (Nov. 22, 2002) .............

Robert Rubin et al., Online Tobacco Sales Grow

and States Lose, Forrester Research, Inc.

aes TT cissiisaetitesesinnicnitinaimsctieepintgnnnnnnicnee

Sara M. Abrams et al., /nternet cigarette pur-

chasing among ninth-grade students in West-

ern New York, 36 Preventative Medicine 731

Thomas Friedman, THE WORLD IS FLAT: A

BRIEF HISTORY OF THE TWENTY-FIRST CEN-

TURY, Flattener #8. Insourcing, What the Guys

in the Funny Brown Shorts are Really Doing

IT that iain atlnicnniantninineninnmnenbedes

U.S. Department or Health & Human Services,

Center for Disease Control and Prevention,

Pathways to Freedom: Winning the Fight

Aapeheast TOBACCO (TFFZ) ..c0ccccccsesescsessosssseceseseese0s

U.S. Department of Health and Human Services,

The Health Consequences of Smoking: A

Report of the Surgeon General (2004) ..............

U.S. Department of Health and Human Services,

The Heatih Consequences of Involuntary Ex-

posure to Tobacco Smoke: A Report of the

Surgeon General (2006) .......cccccccseeeeceeeeereeeeees

Page

5

8

5,6

11

2,3

Vv

TABLE OF AUTHORITIES—Continued

U.S. Department of Health and Human Services,

Preventing Tobacco Use Among Young Peo-

ple: Report of the Surgeon General (1994).......

U.S. Department of Health and Human Services,

Reducing Tobacco Use: A Report of the

Surgeon General (2000) ..........:ccccseeccscessssesseeeees

U.S. General Accounting Office, Report to

Congressional Requestors, /nternet Cigarette

Sales: Giving ATF Investigative Authority May

Improve Reporting and Enforcement (August

Page

IN THE

Supreme Court of the United States

No. 06-457

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, 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

BRIEF FOR AMICUS CURIAE

TOBACCO CONTROL LEGAL CONSORTIUM,

CAMPAIGN FOR TOBACCO-FREE KIDS,

AMERICAN LUNG ASSOCIATION, AND

AMERICAN CANCER SOCIETY

iN SUPPORT OF STATE OF MAINE

PETITION FOR A WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE '

Four entities with significant interest in and expertise on

legal issues surrounding tobacco control in the United States

' Counsel for 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 parties 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

American Lung Association, and the American Cancer

Society. A full description of each amicus and its interest in

this case is presented at the end of this brief.

ARGUMENT

The enormity of the public health crisis caused by tobacco

use in the United States instigates state and local governments

to take action to reduce smoking prevalence, especially

among youth. Given the profound need for such regulation,

federal restraint on state and local government regulation in

this area should be narrowly construed. The First Circuit

Court of Appeals’ overly broad and unreasonable application

of the federal preemption provision of the Federal Aviation

Administration Authorization Act of 1994 (“FAAAA”) not

only strikes down an important statute for the State of Maine,

it creates an unnecessary shadow over similar efforts to

control tobacco distribution in other states. This overreaching

unnecessarily impairs state efforts that have been encouraged

and condoned by the federal government; reversal is neces-

sary, therefore, certiorari is appropriate.

I. TOBACCO USE PRESENTS A_ PUBLIC

HEALTH CRISIS OF UNPRECEDENTED

PROPORTIONS.

The dimensions of the public health crisis presented by the

use of tobacco in the United States cannot be understated.

Tobacco use continues to be the leading preventable cause of

death in the United States. See U.S. Department of Health

and Human Services, The Health Consequences of Smoking:

A Report of the Surgeon General (2004). Each and every

year, tobacco use results in nearly 450,000 deaths and health-

related costs of $156 billion. Jd. The dangers associated with

the use of tobacco extend beyond the damage done to the

3

health of the user; an estimated 60% of non-smokers in the

United States have been impacted by secondhand, or en-

vironmental, tobacco smoke. See U.S. Department of Health

and Human Services, The Health Consequences of Invol-

untary Exposure to Tobacco Smoke: A Report of the Surgeon

General (2006). The catalog of disease and illness caused

by smoking or secondhand smoke exposure continues to

expand, as will the continued damage to our economy and

public health.

Because of the continued and varied dimensions of this

public health dilemma, the Surgeon General of the United

States has issued 29 reports detailing the enormous risk posed

by tobacco use. /d. The most recent report that examines the

impact of smoking on primary users concluded that smoking

has a harmful impact on nearly every bodily organ. See U.S.

Department of Health and Human Services, The Health

Consequences of Smoking: A Report of the Surgeon General

(2004). Most important, the report expanded the list of

diseases previously identified as being caused by smoking to

include abdominal aortic ancurysms, acute myeloid leukemia,

cataracts, cervical cancer, kidney cancer, pancreatic cancer,

pneumonia, periodontitis, and stomach cancer. /d.

There is no doubt that the molecular and cellular damage

caused by tobacco is only exacerbated by the onset of tobacco

use in early adolescence. See U.S. Department of Health and

Human Services, Preventing Tobacco Use Among Young

People: A Report of the Surgeon General (1994). “The [Food

& Drug Administration] has amply demonstrated that tobacco

use, particularly among children and adolescents, poses

perhaps the single most significant threat to public health

in the United States.” Food & Drug Admin. v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 161 (2000). The

long-term effects of tobacco use begin in youth smokers;

nearly all first-time tobacco use begins prior to high school

graduation. The commencement of smoking in adolescence

4

results in a longer period of exposure and heavier use during

adulthood. In an attempt to curtail youth access to tobacco

products and thereby reduce youth smoking prevalence, the

State of Maine passed legislation regulating the sale of

tobacco via the Internet and mail or phone order venues.

II. REDUCING THE AVAILABILITY OF TO-

BACCO THROUGH RESTRICTIONS ON

INTERNET PURCHASES WILL REDUCE

TOBACCO USE AMONG MINORS.

Reducing youth access to tobacco products has been an

integral component of many state and local governments’

efforts toward reducing adolescent tobacco use. See U.S.

Department of Health and Human Services, Reducing

Tobacco Use: A Report of the Surgeon General (2000).

Indeed, the federal government all but requires states to enact

youth tobacco sales restrictions and to enforce those restric-

tions in some manner. See 42 U.S.C. § 300x-26(b)(1) (con-

ditioning state substance abuse funds on achieving certain

goals to reduce youth tobacco sales).’ There is evidence that

the best predictor of tobacco experimentation among adoles-

cents is the perception of ready access.’ Consistent with that

evidence is data demonstrating that attempts to limit youth

access are generally ineffective when piecemeal; the best

? Interestingly, federal law does not establish a minimum age for the

purchase or use of tobacco and, of course, does not establish penalties for

retailers who sell tobacco to minors.

* See United States Department of Health & Human Services, Center

for Disease Control and Prevention, Pathways to Freedom: Winning the

Fight Against Tobacco (1992) (available at http://www.cdc.gov/tobacco/

quit/pathways.pdf) (last visited October 9, 2006).

5

approach is a comprehensive scheme that stresses enforce-

ment of retailer compliance with minor access laws.*

The Internet has become an increasingly popular desti-

nation for minors seeking to purchase products they cannot

buy readily in brick-and-mortar retail establishments. Due to

age restrictions and state and local enforcement of those

restrictions, tobacco is one such product. Although studies

show that Internet purchases comprise a smaller percentage of

youth tobacco sales than do traditional commercial sources,

there is evidence that minors are aware of the potential of the

Internet as a source for illicit tobacco purchases—an avenue

that presents fewer obstacles than the typical convenience

store, gas station, or vending machine.” Internet sales to

adolescents will likely increase as retail access becomes an

increasingly difficult proposition for minors.°

That youth perceive the Internet to be an avenue of ready

access to tobacco is validated by recent studies of youth

smokers in California and New York. The California study

examined tobacco access patterns of California high school

sophomores and seniors in the 1999-2000 school year, while

the New York study focused on the Western New York ninth

grade population.’ Both studies showed that Internet tobacco

* See Frank J. Chaloupka et al., Prices, Policies and Youth Smoking, 98

Addiction S$! (May 2003).

* See National Household Survey on Drug Abuse, How Youths Get

Cigarettes (Nov. 22, 2002) (available at http://www.oas.samhsa.gov/2k2/

YouthCigs/Y outhCigs.pdf) (last visited October 9, 2006).

*In fact, the sale of cigarettes via the Internet to all consumers is

growing. See Robert Rubin et al., Online Tobacco Sales Grow and States

Lose, Forrester Research, Inc. (April 27, 2001) (available at http://www.

forrester.com/ER/Research/Brief/Excerpt/0, 1 317,12253,00.html) (last vis-

ited October 17, 2006).

” See Sara M. Abrams et al., Internet cigarette purchasing among

ninth-grade students in Western New York, 36 Preventative Medicine 731

6

purchases accounted for between 2.0% to 2.5% of tobacco

purchases by study participants.® In the New York study,

proof of age was requested of only 30% of Internet pur-

chasers, and youth aged 14 and under were “significantly

more likely to report using the Internet to purchase ciga-

rettes.”? Of the participants in the California study who

reported ever having used the Internet to attempt to purchase

cigarettes, 32% had made their most recent purchase through

that medium. '°

As savvy “cyber-shoppers,” adolescents will likely turn

to the Internet more frequently as a source of tobacco.

Participants in the New York study indicated that 9% of

current youth smokers intended to purchase cigarettes over

the Internet within the year following the study.'' As youth

access to the Internet grows—at home or at school, through

laptops or cell phones—minors will more readily and more

frequently circumvent state and local sales restrictions by

purchasing online. And online retailers willing to sell to kids

will continue to provide that opportunity. A 2003 study of

the proportion of Internet cigarette vendors that would sell

cigarettes to minors resulted in overwhelming evidence that

minors face little or no difficulty in purchasing cigarettes

online.'? In that study, Internet cigarette vendors sold ciga-

rettes to minors in 92% of attempted purchases.'’ Of the

successful purchases made by adolescents, the age of the

(2003); Jennifer B. Unger et al., Are adolescents attempting to buy ciga-

rettes on the internet?, 10 Tobacco Control 360 (2001).

* See Abrams, supra note 7; Unger supra note 7.

” See Abrams, supra note 7, at 732.

'° See Unger, supra note 7, at 361.

'' See Abrams, supra note 7, at 731.

'? See Kurt M. Ribisl et al., Brief Report: Internet Sales of Cigarettes to

Minors, 290 Journal of American Medicine 10 (Sepi. 10, 2003).

Id.

7

purchaser was never verified by the vendor.'* Most dis-

turbing, vendors included complimentary cigarette packs and

samples, as well as promotional items and ordering informa-

tion that the vendor suggested should be passed on to new

customers. ”°

The need for regulation and enforcement of Internet

tobacco sales is a clear imperative if the public health crisis

that tobacco use represents is to be managed and eliminated;

and the states are willing and able to impose appropriate

restrictions like those in Maine’s statute. The long-term

effects of tobacco use are made more profound when tobacco

use begins in the youth population. The danger that the

Internet poses as a new and anonymous source for minors to

purchase tobacco products in contravention of legal age

restrictions cannot be ignored, and must be addressed. The

State of Maine recognized this imperative when enacting the

tobacco delivery law at issue here.

lil. THE FIRST CIRCUIT’S DECISION UNREA-

SONABLY RESTRICTS MAINE AND OTHER

STATES FROM CONTROLLING YOUTH

ACCESS TO TOBACCO.

The First Circuit Court of Appeals ruled that Maine’s

tobacco delivery law'® was preempted by the FAAAA. The

decision severely and unnecessarily restricts Maine from

regulating direct Internet or telephone sales of tobacco.

Further, the decision threatens laws in other states that

regulate the delivery of tobacco and other dangerous

4 Id.

'S Jd. In addition, because most Internet sellers are operating outside

the tax scheme, see Rubin, supra note 6, they are able to offer lower-

priced cigarettes, a further enticement to price-sensitive consumers

like kids.

' Me. Pub. L. 2003, c. 444; see also 2003 Me. Legis. Serv. Ch. 444

(West).

8

substances. This Court should grant certiorari and reverse

the First Circuit, reinstating state and local power in this area.

A. Application of the First Circuit’s Decision

Nationwide Will Affect Laws Similar To

Maine’s Across the Country.

Maine’s tobacco delivery !aw imposes three requirements

on tobacco retailers. First, the law requires that retailers

selling tobacco over the Internet obtain age verification

before selling tobacco to a consumer. See Me. Rev. Stat.

Ann. tit. 22, § 1555-C(1) (West 2004). Second, the package

in which the tobacco is sent must be clearly marked and

identifiable as containing a tobacco product. See id. at

§ i555-C(3)(B). Third, the retailer must choose a delivery

service (or carrier) that provides age verification and

signature services at the end destination. The law allows for

the punishment of a carrier who knowingly transports a

package in violation of the Maine delivery law. Carriers

“may not knowingly transport . . . a tobacco product

purchased from a person who is not licensed as a tobacco

retailer in this State... .” /d § 1555-D. Thus, the law

provides a mechanism by which Maine can ensure that

tobacco products purchased through the Internet or telephone

do not reach minors and are not being sold in the state by

unlicensed tobacco retailers.

The FAAAA"’ was passed by Congress in 1994 to prevent

states from engaging in economic regulation that would

eliminate non-uniform air and motor carrier operations. See

H.R. Conf. Rep. No. 103-677, at 85-88 (1994), reprinted in

1994 U.S.C.C.A.N. 1715, 1758-60. The first relevant

provision provides that a state may not enact a law “related to

a price, route, or service of an air carrier . . . when such

carrier is transporting property by aircraft or by motor

'? Pub. L. No. 103-305, § 601, 108 Stat. 1569, 1605 (1994).

9

vehicle.” Pub. L. No. 103-305, § 601(b)(1), codified at 49

U.S.C. § 41713(b)4)(A). Second, the FAAAA prevents

states from passing a law “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). Finally, Congress exempted from both of

these provisions the “safety regulatory authority of a State

with respect to motor vehicles,” including regulation of haz-

ardous cargo, insurance requirements, or household goods.

Pub. L. No. 103-305, § 601(b)(1), codified at 49 U.S.C.

§ 41713(b)(4)(B).'®

Congress intended to preempt state regulation of motor

carriers only when such regulation was designed to control or

manipulate carrier costs, not when such regulation imposes

requirements only on non-carrier third parties, such as

Internet tobacco vendors. Tobacco regulation designed to

protect the public health, particularly the youth access

restriction at issue here, does not fall within the preemption

provision. Yet the First Circuit interpreted the “related to”

language of the FAAAA broadly, resulting in the preemption

of Maine’s tobacco delivery law. See N.H. Motor Transp.

Ass'n v. Rowe, 448 F.3d 66, 75-78 (1st Cir. 2006). According

to the First Circuit, by requiring tobacco retailers to choose a

carrier that provides age verification and signature services,

the Maine law indirectly regulates carriers by potentially

impacting the timeliness of deliveries. /d at 79-80. The

court exaggerates this impact, expressing concern that carriers

'® Congress also exempted certain “State standard transportation prac-

tices” dealing with bills of lading and other credit rules. Pub. L. No. 103-

305, § 601(c), originally codified at 49 U.S.C. § 11501(h)(3), now codi-

fied at 49 U.S.C. § 14501(cX3). Later, Congress added an additional

exemption for state reguiation of tow rates. Interstate Commerce Com-

mission Termination Act of 1995, Pub. L. No. 104-88, § 103, 109 Stat.

803, 899, codified at 49 U.S.C. § 14501(c)2K(C).

10

will be required to make multiple delivery attempts, acquire a

customer signature and examine customer identification. /d.

at 79. However, even before the passage of Maine’s tobacco

delivery law, carriers such as United Parcel Service (“UPS”)

provided such services on any package if the shipper paid a

nominal fee. /d at 70. Nothing in Maine law requires nor

prohibits carriers from offering these services; the law merely

requires that shippers contract for such services when ship-

ping tobacco products. The court admits to interpreting the

preemption provision to have a “broad reach.” /d. at 78-79.

Indeed, the reach is so broad as to be illogical and certainly,

in context, unreasonable.

Further, the First Circuit concluded that the second part

of the Maine tobacco delivery law, the package labeling

requirement, was preempted to the extent that it requires

carriers to change “uniform package-processing procedures”

to inspect all packages for tobacco markings and to segregate

such packages. /d. at 81-82. As with the delivery re-

quirements, the package-marking requirement of the Maine

law is imposed not on carriers but on shippers, the carriers’

customers. Nevertheless, the First Circuit speculated about

the potential impact the requirement on shippers may have on

carriers and found that potential impact sufficient to invoke

the FAAAA preemption provision. Specifically, the court

found that any dv viation from the current package inspection

process—a process that must vary by carrier, package size,

type of delivery requested (i.e., overnight, second-day,

signature requirement, etc.), region of the country, stability of

the package contents, and more—constitutes an unlawful

infringement on carriers if adopted by a state or local

government. Carriers such as UPS, however, already check

packages for certain markings in many circumstances and had

already adopted specific practices relating to packages

11

containing tobacco products.'” In fact, in settlement of an

enforcement action by the New York Attorney General, UPS

agreed to “look for indications that a package contains

cigarettes” before making any delivery. /d. at 73.*° Thus, the

First Circuit’s conclusion that a package-labeling requirement

presents an onerous, or even more than negligible, burden on

carriers is without factual or logical support. That the court

felt the need to articulate such a tenuous and unfounded basis

for its decision demonstrates the inaccuracy of the court’s

ultimate decision on the preemption question.”!

'? The highly computerized nature of the common carrier business cuts

against the speculation that the Maine labeling requirement would impose

a burden on carriers. Such a high-tech business could readily adapt to this

requirement. See Thomas Friedman, THE WORLD IS FLAT: A BRIEF

HISTORY OF THE TWENTY-FIRST CENTURY, Flattener #8, Insourcing,

What the Guys in the Funny Brown Shorts are Really Doing 141-50

(2005) (explaining that if the Customs Service were to ask UPS to identify

a package coming from a particular country and shipped by a person

bearing a certain first or last name, UPS could readily do so—“When the

package arrives for sorting, the UPS computers will then automatically

route the package to a customs officer in the UPS hub. A computerized

arm will literally slide it off the conveyor belt and dump it into a bin for a

closer look. It makes the inspection process more efficient and does not

interrupt the general flow of packages.”). UPS takes pride in their high-

tech system. See www.ups.com for public information about the com-

pany 's process.

° A copy of the agreement can be found at http://www.oag.state.

ny.us/press/2005/oct/9tiupsaodfinal.oct.pdf (last visited October 17, 2006).

As that agreement details, UPS had already adopted certain practices

regarding the shipment of tobacco products that deviate from the “uniform

package-processing procedures.” Similar settlements were reached with

FedEx, see http://www.oag.state.ny.us/press/2006/feb/FedEx%20-%20Ex

ecuted%20AOC.pdf (last visited October 17, 2006), and DHL, see http://

www.0oag. State.ny.us/press/2005/jul/dhlaogfinal.pdf (last visited October

17, 2006).

*! Maine also has laws that restrict transportation of other dangerous

products; those laws may be affected by the First Circuit’s decision. See,

e.g., Me. Rev. Stat. Ann. tit. 28-A, §§ 2073, 2077 (liquor transportation);

12

Moreover, the First Circuit’s unreasonably broad reading

of the “related to” language of the FAAAA preemption

provision threatens to undo the proper balance of state and

federal authority in this area of public health. Historically,

states have regulated youth access to tobacco by passing and

enforcing laws designed to minimize tobacco sales and free

distribution to youth. The federal government has not only

condoned, but encouraged, such efforts.2* And while Con-

gress passed a law imposing reporting requirements on

interstate shippers of tobacco products, 15 U.S.C §§ 375 to

378 (the “Jenkins Act”), that law essentially imposes enforce-

ment responsibility on the states.”? This federal deference to

Me. Rev. Stat. Ann. tit. 8, §§ 221 ef seqg., (sale or transportation of

fireworks); Me. Rev. Stat. Ann. tit. 17-A, § 1001(a)(B) (sale or transport

of explosives).

* See 42 U.S.C. § 300x-26(b\(1) (requiring states to enforce youth

access laws at the retail level); see also Centers for Disease Control and

Prevention, Best Practices for Comprehensive Tobacco Control

Programs, Atlanta GA: U.S. Department of Health and Human Services,

Centers for Disease Control and Prevention, National Center for Chronic

Disease Prevention and Health Promotion, Office on Smoking and Health

(August 1999) (available at http://www.cdc.gov/tobacco/bestprac.htm)

(last visited October 17, 2006). That the federal government has left to

the states the responsibility for controlling youth access to tobacco is

further demonstrated by the fact that the federal government has not

established a minimum age for the use or possession of tobacco and,

therefore, has no enforcement scheme to control youth access.

** Recognizing that it is state governments interested in regulating

tobacco sales, the Jenkins Act requires that tobacco sellers who ship

cigarettes across state lines report sales to the appropriate state tax

authority. IS U.S.C. §§ 375-378. It is fair to say that the federal

government has invested no resources in enforcement of the Jenkins Act.

See U.S. General Accounting Office, Report to Congressional Requestors,

Internet Cigarette Sales: Giving ATF Investigative Authority May Improve

Reporting and Enforcement (August 2002) (available at www.gao.gov/

new.items/d20743 pdf) (last visited October 20, 2006). As this report

explains, state governments have been active in indirect enforcement of

13

State government is subverted by the broad application of

federal preemption curtailing the states’ ability to control

youth access to tobacco over the Internet. Nationwide

application of the First Circuit’s decision would be a blow to

the states’ ability to regulate Internet or mail-order tobacco

sales, cutting against existing federal-state policy on tobacco

control and allowing a real threat to the public health with

respect to youth access to tobacco products. This Court has

recognized this threat in the past, see Food & Drug Admin. v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 161

(2000), and, in the context of alcohol, has approved of state

laws requiring adult signature verification and labeling

instructions on packages. Granholm v. Heald, 544 U.S. 460,

490-91 (2005).

At least ten other states have passed laws similar to

Maine’s, requiring a retailer to use a carrier with age and

signature verification upon delivery of tobacco products.”

Those states include Virginia and Utah. Virginia’s tobacco

delivery law requires the retailer to use a delivery service that

provides signature acceptance of delivery and proof of

age through “a valid, government-issued identification” at

delivery time. Va. Code Ann. § 18.2-246.10(2) (West 2004).

Similarly, 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. Utah Code Ann. § 76-10-

the Jenkins Act, at least attempting to have an impact on Internet and mail

order tobacco sales, while the federal government has taken no action.

4 See, e.g., Ariz. Rev. Stat. Ann. § 42-3225(A)(2) (West 2004); Del.

Code. Ann. tit. 30, § 5365(a)(2) (West 2004); Ind. Code Ann. § 24-3-5-

5(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(1b) (West 2004); Tex. Health & Safety Code Ann.

§ 161.455(a)(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. Code

Ann. § 16-9E-4(a)(2) (West 2004).

14

105.1 (West 2004). Such provisions would be preempted

under the First Circuit’s interpretation of the FAAAA’s

preemption provisions. Many other states regulate youth

access to tobacco via direct Internet delivery sales either by

banning such sales”* or by regulating retailers or carriers in

some fashion”® or both. Congress could not have intended to

preempt these specific tobacco delivery laws through the

general language of the FAAAA. The First Circuit’s broad

interpretation of the preemption language in the FAAAA

threatens such state public health regulation.

Parental ability to control teenagers’ Internet usage is

minimal and a child can easily falsify his or her age online or

over the telephone. By requiring retailers to choose carriers

with age and adult signature verification, Maine and other

states are utilizing an already existing apparatus, through

delivery services such as UPS, to regulate the sale of tobacco

to minors. Yet the First Circuit’s decision will leave states

with no practical means to prevent youth tobacco purchases

over the Internet and telephone. Congress could not have

intended this result when enacting the FAAAA as an

economic regulation protecting common carriers.

** See, e.g., N.Y. Pub. Health Law § 1399-Il (McKinney 2004); Md.

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. § 12-285c (West

2004); Idaho Code Ann. §§ 39-5701 to -5718; 720 Ill. Comp. Stat. Ann.

§§ 678/5, -/10, -/99 (West 2004); Kan. Stat. Ann. § 79-3333 (2004); Mich.

Comp. Laws Ann. § 205.431 (West 2004); Mo. Ann. Stat. §§ 407.925 to

.932 (West 2004); Nev. Rev. Stat. Ann. § 202.24935 (West 2004); R.I.

Gen. Laws. §§ 11-9-13.11 to -13.19 (2004); Tenn. Code Ann. § 39-17-

1504(d) (West 2004); Wash. Rev. Code Ann. §§ 70.155.010, -.105, -.110

(West 2004).

15

B. States Should Be Allowed To Regulate Where

the Federal Government Refuses To.

Both Congress and the judiciary acknowledge that states

have the primary role in preventing youth access to tobacco.

Congress, through the power to withhold spending from the

states, conditions certain block grants for substance abuse on

whether a state has made efforts to enforce under-18 tobacco

laws. See 42 U.S.C. § 300x-26(b)(1) (providing that states

will enforce their tobacco laws “in a manner that can

reasonably be expected to reduce the extent to which tobacco

products are available to individuals under the age of 18”).

States are in the best position to implement and enforce such

tobacco laws, and Congress indirectly demands as much from

the states by conditioning federal funds on limited youth

access.”’ An overly broad interpretation of federal preemp-

tion in the FAAAA runs counter to the federal mandate that

states take action to reduce youth access to tobacco.

This Court <nd the Fourth Circuit have recognized the

importance of the states’ authority in this area. This Court

recognized “established congressional policy that supports”

state regulation of tobacco sales. See Lorillard Tobacco Co.

v. Reilly, 533 U.S. 525, 552 (2001). The Fourth Circuit noted

the “clear congressional intent that States exercise 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 & Drug Admin., 153 F.3d

155, 175 (4th Cir. 1998), aff'd, 529 U.S. 120 (2000). To

allow an unnecessary and overbroad interpretation of an

unrelated federal statute to interfere with this long-standing

*” Such federal demand also takes form as the “encouragement” of best

practices at the state level that include comprehensive laws to address

youth access to tobacco, see supra, note 22, and by requiring interstate

shippers to report sales to state government authorities, see supra note 23

and accompanying text.

16

federal-state practice would do a disservice to significant

public health efforts at controlling youth access to tobacco.

STATEMENT OF INTEREST OF AMICUS CURIAE

The Tobacco Control Legal Consortium (“TCLC”) is a

national network of legal centers providing technical as-

sistance to public officials, health professionals, and advo-

cates 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 collaboration 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 signifi-

cance. TCLC has submitted amicus briefs in recent cases

before the U.S. Supreme Court; the Supreme Courts of Cali-

fornia, Delaware, Florida, Kentucky, Montana, and Washing-

ton; and the U.S. District Court for the District of Columbia.

Amicus the 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

® 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, Califor-

nia; 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.

17

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

and its harms, especially among children. Among other

activities, 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: 1) collect applicable taxes; 2) keep tobacco

prices at high rates to discourage smoking, especially in

youth; and 3) diminish the ready access to tobacco products

for all consumers.

Amicus the American Lung Association (“ALA”) is one of

the nation’s oldest voluntary health organizations, with

volunteers and affiliates in all 50 states, the District of

Columbia, Puerto Rico, and the Virgin Islands. ALA has

nearly 400,000 volunteers. 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 the American Cancer Society, Inc. (“ACS”) has

over three million volunteers nationwide, including 50,000

physicians. 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,

education, advocacy, and service. The organization was

founded in 1913, and since that time has conducted ground-

breaking 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 regu-

18

lation at all levels of government, including trying to ensure

that children do not have access to this lethal product.

CONCLUSION

For the foregoing reasons, the Court should grant the

petition for a writ of certiorari.

Respectfully submitted,

MATTHEW MYERS *

Campaign for Tobacco-Free Kids

1400 Eye Street

Suite 1200

Washington, D.C. 20005

(202) 296-5469

* Counsel of Record Counsel for Amicus Curiae