Legal News

Altria Revisited: Preemption Redemption for Justice Stevens

By Ashby Jones

Today’s Supreme Court ruling on preemption, Altria Group Inc. v. Good, represented the second of three opinions to be issued by the Court on the topic. In the first, Riegel v. Medtronic Inc., which came down in February, the Court ruled 8-1 that federal medical-device regulations preempt state product liability suits unless there’s a parallel FDA violation. (Click here for that opinion; here for the WSJ story.) The third case, Wyeth v. Levine, was argued last month. In Wyeth, a woman sued the drug company in Vermont after the incorrect administration of a drug caused her to develop gangrene in her arm. The FDA, alongside Wyeth, argued that federal drug-approval and warning-label standards should trump stricter state laws.

In today’s case, the Court ruled 5-4 that a group of Maine consumers can continue with its suit against Altria Group Inc.’s Philip Morris unit under state unfair-trade laws even though cigarette labeling is regulated by the Federal Trade Commission. The Maine consumers alleged that Philip Morris’s ads involving light and low-tar cigarettes were deceptive. We checked in with WSJ Supreme Court reporter Jess Bravin to get a little more of the detail on what the decision means and were we’re headed in the preemption debate.

Hi Jess, thanks for taking the time. You mentioned in an email to us that the ruling represents a bit of vindication for Justice John Paul Stevens, who authored the majority opinion. What did you mean by that?

In 1992, in a decision called Cipillone v. Liggett Group Inc., the Court ruled that specific language in a federal act regulating cigarette labeling and requiring specific warnings did not preempt all state tort law. But the ruling wasn’t that neat; it was a plurality ruling, rather than a majority opinion, in which Justice Stevens attempted to draw a distinction between state regulations pertaining to smoking and health, and liability for deceptive advertising.

For years, lower courts have wrestled with the Cipillone ruling, partly because the distinction is tricky and partly because the ruling was issued only by a plurality. But today’s ruling endorses Cipillone with a majority, narrow though it may be. So it’s largely a win for Justice Stevens.

And it’s presumably a loss for the tobacco industry?

Yes. I know from talking to lawyers on the side of tobacco that they were hoping to get rid of the Cipillone decision altogether. Obviously, they didn’t get that.

So what makes this case important?

It’s important on a couple levels. First, as I touched on earlier, it reaffirms that there are limits on preemption, at least when it comes to cigarette advertising claims. Second, I think it makes a broader point about preemption. The Court is reaffirming a position that had seemed to fade in recent years, namely that a presumption against the preemption of state law unless it unambiguously interferes with federal regulation.

What about Justice Thomas’s dissent?

Justice Thomas really disagreed on both levels; he thought Cipillone should be overturned and said that the Court should not, as he put it, “distort the statutory text” to preserve a role for state law.

He also felt that the majority opinion departed from the Court’s recent trend on preemption — that it didn’t square with the Court’s 8-1 ruling in Riegel.

Did the majority address Thomas’s arguments?

Well, I think the Court made it clear that it’s going to look at these preemption cases on a case-by-case basis; just because it ruled one way in Riegel doesn’t mean it’s going to follow suit in Altria. After all, the cases deal with different situations. In Altria, you’re dealing with the Federal Trade Commission, which plays more of a policing role than do other regulatory agencies. Historically, it’s looked at efforts by states, through lawsuits and state regulations, as helpful and complementary to its own mission. The Riegel case dealt with the Food and Drug Administration, whose mission is different. It works closely with a regulated industry to promote, one hopes, bringing safe and effective medical products to people who are ill.

Additionally, the statutes at issue are different. The Cigarette Labeling Act is written differently than the Medical Device Amendments at issue in Riegel.

And so where does this leave us? Do we have more clarity on preemption?

We do. Again, I think the big takeaway here is that the Court is going to undertake factually and textually specific inquiries in these cases; that there might not be a one-size-fits-all approach to preemption.

Great. Anything else to note?

Well, one more thing. Preemption is one area in which the Court will give some deference to what the executive branch says about whether an individual statute preempts state law.

Generally, the Bush Administration has favored preemption — although not in the Altria case, which is one instance where the Court rejected preemption. But heading into an Obama Administration, these cases could start looking different largely because President-elect Obama is likely to have a more aggressive take on regulation, and therefore is likely to back off a bit on preemption.

And how does it change the calculus heading into Wyeth v. Levine?

It’s really hard to know, but it’s clear that they’re going to track the language in the statute closely.

Thanks, Jess, for taking the time.

No problem.

Photo: Getty Images

Full post as published by Law Blog - WSJ.com on December 15, 2008 (boomark / email).