Altria Group, Inc. v. Good

70

Syllabus

et al.

v.

et al.

certiorari to the united states court of appeals for the first circuit

No. 07–562. Argued October 6, 2008—Decided December 15, 2008 Respondents, smokers of petitioners’ “light” cigarettes, filed suit, alleging that petiti oners violated the Maine Unfair Trade Practices Act (MUTPA) by fraudulently advertising that their “light” cigarettes deliv­ ered less tar and nicotine than regular brands. The District Court granted summary judgment for petitioners, finding the state-law claim pre-empted by the Federal Cigarette Labeling and Advertising Act (La­ beling Act). The First Circuit reversed, holding that the Labeling Act neither expressly nor impliedly pre-empts respondents’ fraud claim.

either the Labeling Act’s pre-emption provision nor the Federal Trade Commission’s actions in this field pre-empt respondents’ state-law fraud claim. Pp. 76–91. (a) Congress may indicate pre-emptive intent through a statute’s ex­ press lang uage or through its structure and purpose. See Jones

v.

Rath Packing Co.,

430 U. S. 519, 525. When the text of an express pre­ emption clause is susceptible of more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates

v.

Dow Agrosciences

544 U. S. 431, 449. The Labeling Act’s stated purposes are to inform the public of the health risks of smoking while protecting commerce and the economy from the ill effects of nonuniform requirements to the extent consistent with the first goal. Although fi­ delity to these purposes does not demand the pre-emption of state fraud rules, the principal question here is whether that result is nevertheless required by 15 U. S. C. § 1334(b), which provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.” Pp. 76–80. (b) Respondents’ claim is not expressly pre-empted by § 1334(b). As determi ned in Cipollone

v.

Liggett Group, Inc., 505 U. S. 504, and Loril­ lard Tobacco Co.

v.

Reilly,

533 U. S. 525, the phrase “based on smoking and health” modifies the state-law rule at issue rather than a particular application of that rule. The Cipollone

plurality concluded that “the phrase ‘based on smoking and health’ fairly but narrowly construed” did not pre-empt the Cipollone

plaintiff’s common-law claim that cigarette manufacturers had fraudulently misrepresented and concealed a mate­ rial fact, because the claim alleged a violation of a duty not to deceive—

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71

Cite as: 555 U. S. 70 (2008) Syllabus a duty that is not “based on” smoking and health. 505 U. S., at 528–529.

Respondents here also allege a violation of the duty not to deceive as codified in the MUTPA, which, like the common-law duty in Cipollone,

has nothing to do with smoking and health. Respondents’ claim is not analogous to the “warning neutralization” claim found to be pre-empted in Cipollone.

Reilly

is consistent with Cipollone ’s analysis. This Court disagrees with petitioners’ alternative argument that the express pre-emption framework of Cipollone

and Reilly should be rejected.

American Airlines, Inc.

v.

Wolens, 513 U. S. 219, and Riegel v.

Med­ tronic, Inc.,

552 U. S. 312, are distinguished. Pp. 80–87. (c) Various Federal Trade Commission decisions with respect to statements of tar and nicotine content do not impliedly pre-empt state deceptive practices rules like the MUTPA. Pp. 87–90.

501 F. 3d 29, affirmed and remanded.

Stevens,

., delivered the opinion of the Court, in which Kennedy , Souter, Ginsburg,

and Breyer, JJ., joined.

Thomas, J., filed a dissent­ ing opinion, in which Roberts,

Scalia and Alito, JJ., joined, post,

p. 91.

Theodore

Olson argued the cause for petitioners. With him on the briefs were Mark

Perry, Amir

Tayrani, Kenneth

Parsigian, Kenneth

Geller, and Guy Miller Struve.

David

.

Frede rick argued the cause for respondents.

With him on the brief were Mark

Evans, Gerard

Mant­ ese, Mark Rossman, Thomas

Urmy, Jr., Todd

Heyman, and Samuel

Lanham, Jr.

Douglas

a llward-Driemeier argued the cause for the United States as amicus curiae

in support of respondents.

With him on the brief were Solicitor General Garre, Deputy Solicitor General

Kneedler, Assistant

ttorney General Hertz, Mark

Stern, and Alisa

Klein. * *Briefs of amici curiae

urging reversal were filed for the Chamber of Commerce of the United States of America by Jeffrey

Lamken, Allyson

Ho, Rob in

Conrad, and Amar

Sarwal; for the National Associa­ tion of Manufacturers by Peter

Barile

Jan

Amundson, and Quentin Riegel; for the Product Liability Advisory Council, Inc., by John

Thomas; and for the Washington Legal Foundation by Daniel

Popeo and Richard

Samp.

Briefs of ami c i curiae urging affirmance were filed for the State of Maine et al. by

Steven Rowe, Attorney General of Maine, Paul Stern,

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72

v.

Opi nion of the Court Justice Stevens delivered the opinion of the Court.

Respondents, who have for over 15 years smoked “light” cigarettes manufac tured by petitioners, Philip Morris USA, Inc., and its parent company, Altria Group, Inc., claim that petitioners violated the Maine Unfair Trade Practices Act Deputy Attorney General, Linda

onti, Chief, Consumer Protection Divi­ sion, and Jennifer Willis and Carolyn

Silsby, Assistant Attorneys Gen­ eral, by Peter

Nickles,

Interim Attorney General of the District of Co­ lumbia, and by the Attorneys General for their respective States as

Troy King of Alabama, Talis

Colberg of Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, Edmund

Brown, Jr., of Cali­ fornia, John

Suthers of Colorado, Richard Blumenthal of Connecticut, Joseph

Biden

of Delaware, Bill McCollum of Florida, Thurbert

Baker of Georgia, Mark

Bennett of Hawaii, Lawrence

Wasden of Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Thomas

Miller of Iowa, Stephen

Six of Kansas, Jack Conway of Kentucky, James

Caldwell of Louisiana, Douglas

Gansler of Maryland, Martha Coakley of Massachusetts, Lori Swanson of Minnesota, Jim

Hood of Mississippi, Jeremiah

(Jay) Nixon of Missouri, Mike McGrath of Montana, Jon Bruning of Nebraska, Catherine

Cortez Masto of Nevada, Kelly

Ayotte of New Hampshire, Anne Milgram of New Jersey, Gary

King of New Mexico, Andrew

Cuomo of New York, Wayne Stenehjem of North Da­ kota, Nancy

Rogers of Ohio,

Drew Edmondson of Oklahoma, Hardy Myers of Oregon, T om Corbett of Pennsylvania, Patrick

Lynch of Rhode Island, Henry

McMaster of South Carolina, Lawrence

Long of South Dakota, Robert

Cooper, Jr., of Tennessee, Greg Abbott of Texas, Mark

Shurtleff of Utah, William

Sorrell of Vermont, Robert

McKenna of

ashington, Darrell

McGraw, Jr., of West Virginia,

a n

o l l e n of Wisconsin, and Bruce

Salzburg of Wyoming; for the American Medical Association et al. by Gerson

Smoger; for Former Commissioners of the Federal Trade Commission by Robert

King; for the Maryland Consumer Rights Coalition et al. by Kathleen Hoke

Da­ chille;

for the Tobacco Control Legal Consortium et al. by D a v i dC .V l a ­ deck,

Leslie

Brueckner, and Julie Nepveu; and for Allan M. Brandt et al. by Robert

Peck and Francine

Hochberg.

Briefs of ami c i curiae

were filed for Constitutional and Administrative Law Scholars by Ernest

Young, pro se, and Erin Glenn Busby;

and for Former Commissioners et al. of the Federal Trade Commission by Michael

Fried,

hristian

.

Vergonis, and Robert

Smith.

[01-13-14 19:03:36] PAGES PGT:

73

Cite as: 555 U. S. 70 (2008) Opinion of the Court (MUTPA). Specifically, they allege that petitioners’ adver­ tising fraudulently conveyed the message that their “light” cigarettes deliver less tar and nicotine to consumers than regular brands despite petitioners’ knowledge that the mes­ sage was untrue. Petitioners deny the charge, asserting that their advertisements were factually accurate. The merits of the dispute are not before us because the District Court entered summary judgment in favor of petitioners on the ground that respondents’ state-law claim is pre-empted by the Federal Cigarette Labeling and Advertising Act, as amended (Labeling Act or Act). The Court of Appeals re­ versed that judgment, and we granted certiorari to review its holding that the Labeling Act neither expressly nor im­ pliedly pre-empts respondents’ fraud claim. We affirm.

Respondents are Maine residents and longtime smokers of Mar lboro Lights and Cambridge Lights cigarettes, which are manufactured by petitioners. Invoking the diversity juris­ diction of the Federal District Court, respondents filed a complaint alleging that petitioners deliberately deceived them about the true and harmful nature of “light” cigarettes in violation of the MUTPA, Me. Rev. Stat. Ann., Tit. 5, § 207 (Supp. 2008).

1

Respondents claim that petitioners fraudu­ lently marketed their cigarettes as being “light” and contain­ ing “ ‘[l]owered [t]ar and [n]icotine’ ” to convey to consumers that they deliver less tar and nicotine and are therefore less harmful than regular cigarettes. App. 28a–29a.

1

The MUTPA provides, as relevant, that “[u]nfair methods of competi­ tion and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.” § 207. In construing that section, courts are to “be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 45(a)(1) of the Federal Trade Commission Act (15 United States Code 45(a)(1)), as from time to time amended.” § 207(1).

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74

v.

Opi nion of the Court Respondents acknowledge that testing pursuant to the Cambridge Filter Method

2

indicates that tar and nicotine yields of Marlboro Lights and Cambridge Lights are lower than those of regular cigarettes.

Id.,

at 30a. Respondents allege, however, that petitioners have known at all relevant times that human smokers unconsciously engage in compen­ satory behaviors not registered by Cambridge Filter Method testing that negate the effect of the tar- and nicotine­ reducing features of “light” cigarettes.

Id.,

at 30a–31a. By covering filter ventilation holes with their lips or fingers, taking larger or more frequent puffs, and holding the smoke in their lungs for a longer period of time, smokers of “light” cigarettes unknowingly inhale as much tar and nicotine as do smokers of regular cigarettes.

Ibid.

“Light” cigarettes are in fact more harmful because the increased ventilation that results from their unique design features produces smoke that is more mutagenic per milligram of tar than the smoke of regular cigarettes.

Id.,

at 31a–32a. Respondents claim that petitioners violated the MUTPA by fraudulently concealing that information and by affirmatively represent­ ing, through the use of “light” and “lowered tar and nicotine” descriptors, that their cigarettes would pose fewer health risks.

Id., at 32a, 33a.

Petitioners moved for summary judgment on the ground that the Labeling Act, 15 U. S. C. § 1334(b), expressly pre­ empts respondents’ state-law cause of action. Relying on our decisions in Cipollone

v.

Liggett Group, Inc.,

504 (1992), and Lorillard Tobacco Co.

v.

Reilly,

2

The Cambridge Filter Method weighs and measures the tar and nico­ tine collected by a smoking machine that takes 35 milliliter puffs of two seconds’ duration every 60 seconds until the cigarette is smoked to a speci­ fied butt length. App. 294a, 668a. As discussed below, the Federal Trade Commission (FTC or Commission) signaled in 1966 that the Cambridge Filter Method was an acceptable means of measuring the tar and nicotine content of cigarettes, but it never required manufacturers to publish test results in their advertisements.

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Cite as: 555 U. S. 70 (2008)

75

Opinion of the Court 525 (2001), the District Court concluded that respondents’ MUTPA claim is pre-empted. The court recast respondents’ claim as a failure-to-warn or warning neutralization claim of the kind pre-empted in

The claim charges peti­ tioners with “produc[ing] a product it knew contained hidden risks . . . not apparent or known to the consumer”—a claim that “runs to what [petitioners] actually said about Lights and what [respondents] claim they should have said.” 436

Supp. 2d 132, 151 (Me. 2006). And the difference between what petiti oners said and what respondents would have them say is “ ‘intertwined with the concern about cigarette smok­ ing and health.’ ” Id.,

at 153 (quoting Reilly,

533 U. S., at 548). The District Court thus concluded that respondents’ claim rests on a state-law requirement based on smoking and health of precisely the kind that § 1334(b) pre-empts, and it granted summary judgment for petitioners.

Respondents appealed, and the Court of Appeals reversed.

The Cour t of Appeals first rejected the District Court’s char­ acterization of respondents’ claim as a warning neutraliza­ tion claim akin to the pre-empted claim in Cipollone.

501

3d 29, 37, 40 (CA1 2007). Instead, the court concluded that respondents’ claim is in substance a fraud claim that alleges that petitioners falsely represented their cigarettes as “light” or having “lowered tar and nicotine” even though they deliver to smokers the same quantities of those compo­ nents as do regular cigarettes.

Id.,

at 36. “The fact that these alleged misrepresentations were unaccompanied by ad­ ditional statements in the nature of a warning does not transform the claimed fraud into failure to warn” or warning neutralization.

Id.,

at 42–43. Finding respondents’ claim indistinguishable from the non-pre-empted fraud claim at issue in Cipollone,

the Court of Appeals held that it is not expressly pre-empted. The court also rejected petitioners’ argument that respondents’ claim is impliedly pre-empted because their success on that claim would stand as an obsta­

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76

v.

Opi nion of the Court cle to the purported policy of the FTC allowing the use of descriptive terms that convey Cambridge Filter Method test results. Accordingly, it reversed the judgment of the Dis­ trict Court.

In concluding that respondents’ claim is not expressly pre­ empted, the Court of Appeals considered and rejected the Fifth Circuit’s reasoning in a similar case. 501 F. 3d, at 45.

Unlike the court below, the Fifth Circuit likened the plain­ tiffs’ challenge to the use of “light” descriptors to Cipollone ’s warning neutralization claim and thus found it expressly pre-empted.

Brown v.

Brown & Williamson Tobacco Corp.,

479 F. 3d 383, 392–393 (2007). We granted the petition for certiorari to resolve this apparent conflict. 552 U. S. 1162 (2008).

Article VI, cl. 2, of the Constitution provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Consistent with that command, we have long recognized that state laws that con­ flict with federal law are “without effect.” Maryland

v.

Louisiana,

Our inquiry into the scope of a statute’s pre-emptive effect is g uided by the rule that “ ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Med­ tronic,

Inc.

v.

Lohr, 518 U. S. 470, 485 (1996) (quoting Retail Clerks v.

Schermerhorn,

375 U. S. 96, 103 (1963)). Congress may indicate pre-emptive intent through a statute’s express language or through its structure and purpose. See Jones

v.

Rath

acking

o.,

430 U. S. 519, 525 (1977). If a federal law contains an express pre-emption clause, it does not im­ mediately end the inquiry because the question of the sub­ stance and scope of Congress’ displacement of state law still remains. Pre-emptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law to occupy the legislative field, or if there is an actual

[01-13-14 19:03:36] PAGES PGT:

77

Cite as: 555 U. S. 70 (2008) Opinion of the Court conflict between state and federal law.

Freightliner Corp.

v.

Myrick,

514

When addressing questions of express or implied pre­ empti on, we begin our analysis “with the assumption that the historic police powers of the States [are] not to be super­ seded by the Federal Act unless that was the clear and mani­ fest purpose of Congress.” Rice

v.

Santa Fe Elevator Corp.,

331 U. S. 218, 230 (1947). That assumption applies with par­ ticular force when Congress has legislated in a field tradi­ tionally occupied by the States.

Lohr, 518 U. S., at 485; see also Reilly,

533 U. S., at 541–542 (“Because ‘federal law is said to bar state action in [a] fiel[d] of traditional state regu­ lation,’ namely, advertising, we ‘wor[k] on the assumption that the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress’ ” (citation omitted)). Thus, when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily “accept the reading that disfavors pre-emption.” Bates

v.

Dow Agro­ sciences

Congress enacted the Labeling Act in 1965

3

in response to the Surgeon General’s determination that cigarette smoking is harmful to health. The Act required that every package of cigarettes sold in the United States contain a conspicuous warning, and it pre-empted state-law positive enactments that added to the federally prescribed warning. 79 Stat.

283.

Congress amended the Labeling Act a few years later by enac ting the Public Health Cigarette Smoking Act of 1969.

4

The amendments strengthened the language of the prescribed warning, 84 Stat. 88, and prohibited cigarette ad­ vertising in “any medium of electronic communication sub­ ject to [Federal Communications Commission] jurisdiction,” id.,

at 89. They also broadened the Labeling Act’s pre­

3

79 Stat. 282.

4

Pub. L. 91–222, 84 Stat. 87. Though actually enacted in 1970, Con­ gress directed that it be cited as a “1969 Act.”

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78

v.

Opi nion of the Court emption provision. See Cipollone,

505 U. S., at 520 (plural­ ity opinion) (discussing the difference in scope of the pre­ emption clauses of the 1965 and 1969 Acts). The Labeling Act has since been amended further to require cigarette manufacturers to include four more explicit warnings in their packaging and advertisements on a rotating basis.

5

The stated purpose of the Labeling Act is “to establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, whereby— “(1) the public may be adequately informed that ciga­ rette smoking may be hazardous to health by inclusion of a warning to that effect on each package of ciga­ rettes; and “(2) commerce and the national economy may be

protected to the maximum extent consistent with th is declared policy and (B) not impeded by diverse, non­ uniform, and confusing cigarette labeling and advertis­ ing regulations with respect to any relationship between smoking and health.” 79 Stat. 282, 15 U. S. C. § 1331.

The requirement that cigarette manufacturers include in their packag ing and advertising the precise warnings man­ dated by Congress furthers the Act’s first purpose. And the Act’s pre-emption provisions promote its second purpose.

As amended, the Labeling Act contains two express pre­ empti on provisions. Section 5(a) protects cigarette manu­ facturers from inconsistent state labeling laws by prohibiting the requirement of additional statements relating to smoking and health on cigarette packages. 15 U. S. C. § 1334(a).

Section 5(b), which is at issue in this case, provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to the adver­

5

Comprehensive Smoking Education Act, Pub. L. 98–474, § 4(a), 98 Stat.

2201, 15 U. S. C. § 1333(a).

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Cite as: 555 U. S. 70 (2008)

79

Opinion of the Court tising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chap­ ter.” § 1334(b).

Together, the labeling requirement and pre-emption provi­ si ons express Congress’ determination that the prescribed federal warnings are both necessary and sufficient to achieve its purpose of informing the public of the health conse­ quences of smoking. Because Congress has decided that no additional warning statement is needed to attain that goal, States may not impede commerce in cigarettes by enforcing rules that are based on an assumption that the federal warn­ ings are inadequate. Although both of the Act’s purposes are furthered by prohibiting States from supplementing the federally prescribed warning, neither would be served by limiting the States’ authority to prohibit deceptive state­ ments in cigarette advertising. Petitioners acknowledge that “Congress had no intention of insulating tobacco compa­ nies from liability for inaccurate statements about the rela­ tionship between smoking and health.” Brief for Petition­ ers 28. But they maintain that Congress could not have intended to permit the enforcement of state

fraud rules because doing so would defeat the Labeling Act’s purpose of preventing nonuniform state warning requirements. 15

6

As we observed in Cipollone,

however,

6

Petitioners also urge us to find support for their claim that Congress gave the FTC exclusive authority to police deceptive health-related claims in cigarette advertising in what they refer to as the Labeling Act’s “saving clause.” The clause provides that, apart from the warning requirement, nothing in the Act “shall be construed to limit, restrict, expand, or other­ wise affect the authority of the Federal Trade Commission with respect to unfair or deceptive acts or practices in the advertising of cigarettes.” § 1336. A plurality of this Court has previously read this clause to “indi­ cat[e] that Congress intended the phrase ‘relating to smoking and h e a l t h ’...t ob e construed narrowly, so as not to proscribe the regulation of deceptive advertising.” Cipollone

v.

Liggett Group, Inc.,

528–529 (1992). Nothing in the clause suggests that Congress meant to proscribe the States’ historic regulation of deceptive advertising prac­

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80

v.

Opi nion of the Court fraud claims “rely only on a single, uniform standard: falsity.” 505 U. S., at 529 (plurality opinion).

Although it is clear that fidelity to the Act’s purposes does not demand the pre-emption of state fraud rules, the princi­ pal question that we must decide is whether the text of § 1334(b) nevertheless requires that result.

We have construed the operative phrases of § 1334(b) in two pr

Cipollone, 505 U. S. 504, and Reilly,

533

S. 525. On both occasions we recognized that the phrase

“ based on smoking and health” modifies the state-law rule at issue rather than a particular application of that rule.

In Cipo llone,

the plurality, which consisted of Chief Jus­ tice Rehnquist and Justices White, O’Connor, and Stevens,

read the pre-emption provision in the 1969 amendments to the Labeling Act to pre-empt common-law rules as well as positive enactments. Unlike Justices Blackmun, Kennedy,

and Souter,

the plurality concluded that the provision does not preclude all common-law claims that have some relation­ ship to smoking and health. 505 U. S., at 521–523. To de­ termine whether a particular common-law claim is pre­ empted, the plurality inquired “whether the legal duty that is the predicate of the common-law damages action consti­ tutes a ‘requirement or prohibition based on smoking and health . . . with respect to . . . advertising or promotion,’ giving that clause a fair but narrow reading.” Id.,

at 524. tices. The FTC has long depended on cooperative state regulation to achieve its mission because, although one of the smallest administrative agencies, it is charged with policing an enormous amount of activity. See 1 S. Kanwit, Federal Trade Commission §§ 1:1, 1:2 (2004 ed. and Supp.

2008). Moreover, when the Labeling Act was amended in 1969 it was not even clear that the FTC possessed rulemaking authority, see 84 Stat. 89, making it highly unlikely that Congress would have intended to assign exclusively to the FTC the substantial task of overseeing deceptive prac­ tices in cigarette advertisements.

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81

Cite as: 555 U. S. 70 (2008) Opinion of the Court Applying this standard, the plurality held that the plain­ tiff’s claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact was not pre­ empted. That claim alleged a violation of the manufactur­ ers’ duty not to deceive—a duty that is not “based on” smok­ ing and health.

Id.,

at 528–529. Respondents in this case also allege a violation of the duty not to deceive as that duty is codified in the MUTPA. The duty codified in that state statute, like the duty imposed by the state common-law rule at issue in Cipollone,

has nothing to do with smoking and health.

7

Petitioners endeavor to distance themselves from that holding by arguing that respondents’ claim is more analogous to the “warning neutralization” claim found to be pre-empted in Cipollone.

Although the plurality understood the plain­ tiff to have presented that claim as a “theory of fraudulent misrepresentation,” id.,

at 528, the gravamen of the claim was the defendants’ failure to warn, as it was “predicated on a state-law prohibition against statements in advertising and promotional materials that tend to minimize the health haz­ ards associated with smoking,” id.,

at 527. Thus under­ stood, the Cipollone

plurality’s analysis of the warning neu­ tralization claim has no application in this case.

8 7

In his dissent, Justice Thomas criticizes our reliance on the plurality opinion in Cipollone,

post,

at 96–98, 103–108, 111–112, and advocates adopting the analysis set forth by Justice

Scalia

in his opinion concur­ ring in the judgment in part and dissenting in part in that case, post,

at 95–96, 109–110. But Justice

Scalia ’s approach was rejected by seven Members of the Court, and in the almost 17 years since Cipollone

was decided Congress has done nothing to indicate its approval of that ap­ proach. Moreover, Justice

Thomas

fails to explain why Congress would have intended the result that Justice

Scalia ’s approach would produce— namely, permitting cigarette manufacturers to engage in fraudulent adver­ tising. As a majority of the Court concluded in Cipollone,

nothing in the Labeling Act’s language or purpose supports that result.

8

The Cipollone

plurality further stated that the warning neutralization claim was “merely the converse of a state-law requirement

that warnings be included in advertising and promotional materials,” 505 U. S., at 527,

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82

v.

Opi nion of the Court Petitioners nonetheless contend that respondents’ claim is like the pre-empted warning neutralization claim because it is based on statements that “might create a false impression” rather than statements that are “inherently false.” Brief for Petitioners 39. But the extent of the falsehood alleged does not alter the nature of the claim. Nothing in the Label­ ing Act’s text or purpose or in the plurality opinion in Cipol­ lone

suggests that whether a claim is pre-empted turns in any way on the distinction between misleading and inher­ ently false statements. Petitioners’ misunderstanding is the same one that led the Court of Appeals for the Fifth Circuit, when confronted with a “light” descriptors claim, to reach a result at odds with the Court of Appeals’ decision in this case. See Brown,

479 F. 3d, at 391–393. Certainly, the ex­ tent of the falsehood alleged may bear on whether a plaintiff can prove her fraud claim, but the merits of respondents’ claim are not before us.

Once that erroneous distinction is set aside, it is clear that our holdi ng in Cipollone

that the common-law fraud claim was not pre-empted is directly applicable to the statutory claim at issue in this case. As was true of the claim in Cipollone,

respondents’ claim that the deceptive statements “light” and “lowered tar and nicotine” induced them to pur­ chase petitioners’ product alleges a breach of the duty not to deceive.

9

To be sure, the presence of the federally man­ dated warnings may bear on the materiality of petitioners’ evincing the plurality’s recognition that warning neutralization and failure-to-warn claims are two sides of the same coin.

Justice Thomas’

criticism of the plurality’s treatment of the failure-to-warn claim, post,

at 106, is beside the point, as no such claim is at issue in this litigation.

9

As the Court of Appeals observed, respondents’ allegations regarding petitioners’ use of the statements “light” and “lowered tar and nicotine” could also support a warning neutralization claim. But respondents did not bring such a claim, and the fact that they could have does not, as petitioners suggest, elevate form over substance. There is nothing new in the recognition that the same conduct might violate multiple proscriptions.

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83

Cite as: 555 U. S. 70 (2008) Opinion of the Court allegedly fraudulent statements, “but that possibility does not change [respondents’] case from one about the state­ ments into one about the warnings.” 501 F. 3d, at 44.

10

Our decision in Reilly is consistent with Cipollone ’s analy­ sis.

Reilly

involved regulations promulgated by the Massa­ chusetts attorney general “ ‘in order to address the incidence of cigarette smoking and smokeless tobacco use by children under legal age . . . [and] in order to prevent access to such products by underage consumers.’ ” 533 U. S., at 533 (quot­ ing 940 Code Mass. Regs. § 21.01 (2000)). The regulations did not pertain to the content of any advertising; rather, they placed a variety of restrictions on certain cigarette sales and the location of outdoor and point-of-sale cigarette advertis­ ing. The attorney general promulgated those restrictions pursuant to his statutory authority to prevent unfair or de­ ceptive trade practices. Mass. Gen. Laws, ch. 93A, § 2 (West 1996). But although the attorney general’s authority de­ rived from a general deceptive practices statute like the one at issue in this case, the challenged regulations targeted ad­ vertising that tended to promote tobacco use by children in­ stead of prohibiting false or misleading statements. Thus, whereas the “prohibition” in Cipollone

was the common-law fraud rule, the “prohibitions” in Reilly were the targeted regulations. Accordingly, our holding in Reilly

that the reg­

10

Justice Thomas

contends that respondents’ fraud claim must be pre-empted because “[a] judgment in [their] favor will . . . result in a ‘re­ quirement’ that petitioners represent the effects of smoking on health in a particular way in their advertising and promotion of light cigarettes.” Post,

at 93. He further asserts that “respondents seek to require

the cigarette manufacturers to provide additional warnings about compensa­ tory behavior, or to prohibit

them from selling these products with the ‘light’ or ‘low-tar’ descriptors.” Post,

at 109–110. But this mischaracter­ izes the relief respondents seek. If respondents prevail at trial, petition­ ers will be prohibited from selling as “light” or “low tar” only those ciga­ rettes that are not actually light and do not actually deliver less tar and nicotine. Barring intervening federal regulation, petitioners would re­ main free to make nonfraudulent use of the “light” and “low-tar” descriptors.

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84

v.

Opi nion of the Court ulations were pre-empted provides no support for an argu­ ment that a general prohibition of deceptive practices is “based on” the harm caused by the specific kind of deception to which the prohibition is applied in a given case.

It is true, as petitioners argue, that the appeal of their adver tisi ng is based on the relationship between smoking and health. And although respondents have expressly repu­ diated any claim for damages for personal injuries, see App.

26a, their actual injuries likely encompass harms to health as well as the monetary injuries they allege. These argu­ ments are unava iling, however, because the text of § 1334(b) does not refer to harms

related to smoking and health.

Rather, it pre-empts only requirements and prohibitions — i.

e., r ules—that are based on smoking and health. The

A says nothing about either “smoking” or “health.” It is a general rule that creates a duty not to deceive and is therefore unlike the regulations at issue in Reilly.

11

Petitioners argue in the alternative that we should reject the express pre-emption framework established by the Cipollone

plurality and relied on by the Court in Reilly.

In so doing, they invoke the reasons set forth in the separate opinions of Justice Blackmun (who especially criticized the plurality’s holding that the failure-to-warn claim was pre­ empted) and Justice

Scalia

(who argued that the fraud claim also should be pre-empted). While we again acknowl­ edge that our analysis of these claims may lack “theoretical elegance,” we remain persuaded that it represents “a fair understanding of congressional purpose.” Cipollone,

505

S., at 529–530, n. 27 (plurality opinion).

11

In implementing the MUTPA, neither the state legislature nor the state attorney general has enacted a set of special rules or guidelines targeted at cigarette advertising. As we noted in Cipollone,

it was the threatened enactment of new state warning requirements rather than the enforcement of pre-existing general prohibitions against deceptive prac­ tices that prompted congressional action in 1969. 505 U. S., at 515, and n.

11.

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85

Opinion of the Court Petitioners also contend that the plurality opinion is incon­ sistent with our decisions in American

Airlines, Inc.

v.

Wolens, 513 U. S. 219 (1995), and Riegel v.

Medtronic, Inc.,

552 U. S. 312 (2008). Both cases, however, are inapposite— the first because it involved a pre-emption provision much broader than the Labeling Act’s, and the second because it involved precisely the type of state rule that Congress had intended to pre-empt.

At issue in Wo l ens

was the pre-emptive effect of the Airline Deregulation Act of 1978 (ADA), 49 U. S. C.

App. § 1305(a)(1) (1988 ed.), which prohibits States from enacting or enforcing any law “relating to rates, routes, or services of any air carrier.” The plaintiffs in that case sought to bring a claim under the Illi nois Consumer Fraud and Deceptive Business Practices Act, Ill. Comp. Stat., ch. 815, § 505 (West 1992). Our conclusion that the state-law claim was pre-empted turned on the unusual breadth of the ADA’s pre-emption provision. We had previously held that the meaning of the key phrase in the ADA’s pre-emption pro­ vision, “ ‘ relating

to rates, routes, or services,’ ” is a broad one.

Morales v.

Trans World Airlines, Inc.,

383–384 (1992) (emphasis added). Relying on precedents construing the pre-emptive effect of the same phrase in the Employee Retirement Income Security Act of 1974, 29

S. C. § 1144(a), we concluded that the phrase “ ‘relating

to’ ” indicates Congress’ intent to pre-empt a large area of state law to further its purpose of deregulating the air­ line industry.

504 U. S., at 383–384.

12

Unquestionably, the

12

Petitioners also point to Morales as evidence that our decision in Cipollone

was wrong. But Morales predated Cipollone,

and it is in any event even more easily distinguishable from this case than American

Air­ lines, Inc.

v.

Wolens, 513 U. S. 219 (1995). At issue in Morales

were guidelines regarding the form and substance of airline fare advertising implemented by the National Association of Attorneys General to give content to state deceptive practices rules. 504 U. S., at 379. Like the regulations at issue in Reilly,

the guidelines were industry-specific direc­ tives that targeted the subject matter made off-limits by the ADA’s ex­

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86

v.

Opi nion of the Court phrase “relating to” has a broader scope than the Labeling Act’s reference to rules “based on” smoking and health; whereas “relating to” is synonymous with “having a connec­ tion with,” id.,

at 384, “based on” describes a more direct relationship, see Safeco Ins.

Co.

of America v.

Burr,

47, 63 (2007) (“In common talk, the phrase ‘based on’ indi­ cates a but-for causal relationship and thus a necessary logi­ cal condition”).

Petitioners’ reliance on Ri e gel is similarly misplaced. The plaintiffs in Riegel

sought to bring common-law design, man­ ufacturing, and labeling defect claims against the manufac­ turer of a faulty catheter. The case presented the question whether those claims were expressly pre-empted by the Medical Device Amendments of 1976 (MDA), 21 U. S. C. § 360c et

seq.

The MDA’s pre-emption clause provides that no State “ ‘may establish or continue in effect with respect to a device . . . any requirement’ relating to safety or effec­ tiveness that is different from, or in addition to, federal re­ quirements.” Riegel,

552 U. S., at 328 (quoting 21 U. S. C. § 360k(a); emphasis deleted).

The catheter at issue in Ri e gel

had received premarket approval from the Food and Drug Administration (FDA).

We concluded that premarket approval imposes “require­ ment[s] relating to safety [and] effectiveness” because the FDA requires a device that has received premarket approval to be made with almost no design, manufacturing, or labeling deviations from the specifications in its approved application.

The plaintiffs’ products liability claims fell within the core of the MDA’s pre-emption provision because they sought to impose different requirements on precisely those aspects of the device that the FDA had approved. Unlike the Cipol­ lone

plaintiff’s fraud claim, which fell outside of the Labeling Act’s pre-emptive reach because it did not seek to impose a press pre-emption provisions. See also Rowe

v.

New Hampshire Motor Transp.

Assn.,

552 U. S. 364 (2008) (holding that targeted ground carrier regulations were pre-empted by a statute modeled on the ADA).

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87

Cite as: 555 U. S. 70 (2008) Opinion of the Court prohibition “based on smoking and health,” the Riegel

plain­ tiffs’ common-law products liability claims unquestionably sought to enforce “requirement[s] relating to safety or effec­ tiveness” under the MDA. That the “relating to” language of the MDA’s pre-emption provision is, like the ADA’s, much broader than the operative language of the Labeling Act pro­ vides an additional basis for distinguishing Riegel.

Thus, contrary to petitioners’ suggestion, Riegel is entirely consist­ ent with our holding in Cipollone.

In sum, we conclude now, as the plurality did in Cipo ll one,

that “the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent statements.” 505 U. S., at 529.

As an alternative to their express pre-emption argument, petiti oners contend that respondents’ claim is impliedly pre­ empted because, if allowed to proceed, it would present an obstacle to a longstanding policy of the FTC. According to petitioners, the FTC has for decades promoted the develop­ ment and consumption of low tar cigarettes and has encour­ aged consumers to rely on representations of tar and nicotine content based on Cambridge Filter Method testing in choos­ ing among cigarette brands. Even if such a regulatory pol­ icy could provide a basis for obstacle pre-emption, petition­ ers’ description of the FTC’s actions in this regard are inaccurate. The Government itself disavows any policy au­ thorizing the use of “light” and “low tar” descriptors. Brief for United States as Amicus

Curiae 16–33.

In 1966, following the publication of the Surgeon General’s repor t on smoking and health, the FTC issued an industry guidance stating its view that “a factual statement of the tar and nicotine content (expressed in milligrams) of the main­ stream smoke from a cigarette,” as measured by Cambridge Filter Method testing, would not violate the FTC Act. App.

478a. The Commission made clear, however, that the guid­

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88

v.

Opi nion of the Court ance applied only to factual assertions of tar and nicotine yields and did not invite “collateral representations . . . made, expressly or by implication, as to reduction or elimination of health hazards.” Id.,

at 479a. A year later, the FTC reiter­ ated its position in a letter to the National Association of Broadcasters. The letter explained that, as a “general rule,” the Commission would not challenge statements of tar and nicotine content when “they are shown to be accurate and fully substantiated by tests conducted in accordance with the [Cambridge Filter Method].” Id.,

at 368a. In 1970, the FTC considered providing further guidance, pro­ posing a rule that would have required manufacturers to disclose tar and nicotine yields as measured by Cambridge Filter Method testing. 35 Fed. Reg. 12671. The leading cigarette manufacturers responded by submitting a volun­ tary agreement under which they would disclose tar and nic­ otine content in their advertising, App. 899a–900a, and the FTC suspended its rulemaking, 36 Fed. Reg. 784 (1971).

Based on these events, petitioners assert that “the FTC has required

tobacco companies to disclose tar and nicotine yields in cigarette advertising using a government-mandated testing methodology and has authorized

them to use descrip­ tors as shorthand references to those numerical test results.” Brief for Petitioners 2 (emphasis in original). As the forego­ ing history shows, however, the FTC has in fact never re­ quired that cigarette manufacturers disclose tar and nicotine yields, nor has it condoned representations of those yields through the use of “light” or “low tar” descriptors.

Subsequent Commission actions further undermine peti­ tioners’ claim. After the tobacco companies agreed to re­ port tar and nicotine yields as measured by the Cambridge Filter Method, the FTC continued to police cigarette compa­ nies’ misleading use of test results. In 1983, the FTC re­ sponded to findings that tar and nicotine yields for Barclay cigarettes obtained through Cambridge Filter Method test­ ing were deceptive because the cigarettes in fact delivered

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89

Cite as: 555 U. S. 70 (2008) Opinion of the Court disproportionately more tar to smokers than other cigarettes with similar Cambridge Filter Method ratings. 48 Fed.

Reg. 15954. And in 1995, the FTC found that a manufactur­ er’s representation “that consumers will get less tar by smoking ten packs of Carlton brand cigarettes than by smok­ ing a single pack of the other brands” was deceptive even though it was based on the results of Cambridge Filter Method testing.

In re American Tobacco Co.,

3, 4. The FTC’s conclusion was based on its recognition that, “[i]n truth and in fact, consumers will not necessarily get less tar” due to “such behavior as compensatory smok­ ing.” Ibid.

13

This history shows that, contrary to petitioners’ sugges­ tion, the FTC has no longstanding policy authorizing collat­ eral representations based on Cambridge Filter Method test results. Rather, the FTC has endeavored to inform con­ sumers of the comparative tar and nicotine content of differ­ ent cigarette brands and has in some instances prevented misleading representations of Cambridge Filter Method test results. The FTC’s failure to require petitioners to correct their allegedly misleading use of “light” descriptors is not evidence to the contrary; agency nonenforcement of a fed­

13

In a different action, the FTC charged a cigarette manufacturer with violating the FTC Act by misleadingly advertising certain brands as “low in tar” even though they had a higher-than-average tar rating. See In

re American Brands, Inc.,

79 F. T. C. 255 (1971). The Commission and the manufacturer entered a consent order that prevented the manufacturer from making any such representations unless they were accompanied by a clear and conspicuous disclosure of the cigarettes’ tar and nicotine con­ tent as measured by the Cambridge Filter Method.

Id.,

at 258. Petition­ ers offer this consent order as evidence that the FTC authorized the use of “light” and “low tar” descriptors as long as they accurately describe Cambridge Filter Method test results. As the Government observes, however, the decree only enjoined conduct. Brief for United States as Amicus

Curiae

26. And a consent order is in any event only binding on

the parties to the agreement. For all of these reasons, the consent order does not support the conclusion that respondents’ claim is impliedly pre-empted.

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90

v.

Opi nion of the Court eral statute is not the same as a policy of approval. Cf.

Sprietsma v.

Mercury Marine,

537 U. S. 51 (2002) (holding that the Coast Guard’s decision not to regulate propeller guards did not impliedly pre-empt petitioner’s tort claims).

14

More te lling are the FTC’s recent statements regarding the use of “light” and “low tar” descriptors. In 1997, the Commission observed that “[t]here are no official definitions for” the terms “ ‘light’ ” and “ ‘low tar,’ ” and it sought com­ ments on whether “there [is] a need for official guidance with respect to the terms” and whether “the descriptors convey implied health claims.” 62 Fed. Reg. 48163. In November 2008, following public notice and comment, the Commission rescinded its 1966 guidance concerning the Cambridge Filter Method. 73 Fed. Reg. 74500. The rescission is a response to “a consensus among the public health and scientific com­ munities that the Cambridge Filter method is sufficiently flawed that statements of tar and nicotine yields as measured by that method are not likely to help consumers make in­ formed decisions.” Id.,

at 74503. The Commission’s notice of its proposal to rescind the guidance also reiterated the original limits of that guidance, noting that it “only ad­ dresse[d] simple factual statements of tar and nicotine yields.

It d[id] not apply to other conduct or express or implied representations, even if they concern[ed] tar and nicotine yields.” Id.,

at 40351.

In short, neither the handful of industry guidances and consent orders on which petitioners rely nor the FTC’s inac­ tion with regard to “light” descriptors even arguably justi­ fies the pre-emption of state deceptive practices rules like the MUTPA.

14

It seems particularly inappropriate to read a policy of authorization into the FTC’s inaction when that inaction is in part the result of petition­ ers’ failure to disclose study results showing that Cambridge Filter Method test results do not reflect the amount of tar and nicotine that consumers of “light” cigarettes actually inhale. See id.,

at 8–11.

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91

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting

We conclude, as we did in Cipoll one,

that the Labeling Act does not pre-empt state-law claims like respondents’ that are predicated on the duty not to deceive. We also hold that the FTC’s various decisions with respect to statements of tar and nicotine content do not impliedly pre-empt respondents’ claim. Respondents still must prove that petitioners’ use of “light” and “lowered tar” descriptors in fact violated the state deceptive practices statute, but neither the Labeling Act’s pre-emption provision nor the FTC’s actions in this field prevent a jury from considering that claim. Accord­ ingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas, w ith whom The Chief Justice, Jus­ tice Scalia, and Justice

Alito join, dissenting.

This appeal requires the Court to revisit its decision in Cipo ll one v.

Liggett Group, Inc.,

505 U. S. 504 (1992). As in that case, the question before us is whether state-law claims alleging that cigarette manufacturers misled the public about the health effects of cigarettes are pre-empted by the Fed­ eral Cigarette Labeling and Advertising Act, as amended in 1969 (Labeling Act or Act). The Labeling Act requires that specific health warnings be placed on all cigarette packag­ ing and advertising, 15 U. S. C. § 1333, in order to eliminate “diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health,” § 1331. To that end, § 5(b) of the Labeling Act pre-empts any “requirement or prohibition based on smoking and health . . . imposed under State law with respect to the advertising or promotion of any ciga­ rettes.” § 1334(b).

Whether § 5(b) pre-empts state common-law claims divided the Cour t in Cipollone.

The plurality opinion found some

[01-13-14 19:03:36] PAGES PGT:

92

v.

Thomas,

., dissenting claims expressly pre-empted and others not, depending on whether “ the

legal duty that is the predicate of the common-law damages

action constitutes a requirement or prohibition based on smoking and healt h... i mposed under State law with respect to . . . advertising or promotion.” 505 U. S., at 524 (internal quotation marks omitted; emphasis added). A majority of the Court disagreed with the plural­ ity’s “predicate duty” approach.

Id.,

at 543 (Blackmun, J., concurring in part, concurring in judgment in part, and dis­ senting in part); id.,

at 552–554 ( Scalia,

J., concurring in judgment in part and dissenting in part). In particular, Justice

Scalia

recognized that the plurality’s interpreta­ tion of § 5(b) created an unworkable test for pre-emption with little or no relationship to the text of the statute.

Id., at 544, 555–556. The intervening years have vindicated Justice

Scalia’ s critical assessment; the lower courts have consistently expressed frustration at the difficulty in apply­ ing the Cipollone

plurality’s test. Moreover, this Court’s recent pre-emption decisions have undermined, and in some cases overruled, central aspects of the plurality’s atextual approach to express pre-emption generally, Riegel

v.

Med­ tronic, Inc.,

552 U. S. 312 (2008), and to § 5(b) of the Labeling Act specifically, Lorillard

Tobacco Co.

v.

Reilly,

525 (2001).

The majority today ignores these problems and adopts the methodology of the Cipollone

plurality as governing law.

As a consequence, the majority concludes that state-law lia­ bility for deceiving purchasers about the health effects of smoking light cigarettes is not a “requirement or prohibition based on smoking and health” under the Labeling Act. The Court’s fidelity to Cipollone

is unwise and unnecessary.

The Court should instead provide the lower courts with a clear test that advances Congress’ stated goals by interpret­ ing § 5(b) to expressly pre-empt any claim that “imposes an obligation . . . because of the effect of smoking upon health.” Cipollone,

supra, at 554 (opinion of Scalia,

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93

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting Respondents’ lawsuit under the Maine Unfair Trade Prac­ tices Act (MUTPA), Me. Rev. Stat. Ann., Tit. 5, § 207 (Supp.

2008), is expressly pre-empted under § 5(b) of the Labeling Act. The civil action is premised on the allegation that the cigarette manufacturers misled respondents into believing that smoking light cigarettes would be healthier for them than smoking regular cigarettes. A judgment in respond­ ents’ favor will thus result in a “requirement” that petition­ ers represent the effects of smoking on health in a particular way in their advertising and promotion of light cigarettes.

Because liability in this case is thereby premised on the ef­ fect of smoking on health, I would hold that respondents’ state-law claims are expressly pre-empted by § 5(b) of the Labeling Act. I respectfully dissent.

In Cipollone,

a smoker and her spouse brought state common-law claims for fraud, breach of warranty, and failure to warn against cigarette manufacturers for their alleged failure to adequately disclose the health risks of smoking.

505 U. S., at 509. As here, the cigarette manufacturer as­ serted that the claims were pre-empted by § 5(b) of the Labeling Act.

In deciding the case, the Court could not agree on the meani ng of the Labeling Act’s express pre-emption provi­ sion. It produced three separate opinions, none of which reflected the views of a majority of Justices. Relying heav­ ily on a “presumption against the pre-emption of state police power regulations,” id.,

at 518, a plurality opinion by Jus­ tice Stevens

settled on a “narrow reading” of the Labeling Act that tested § 5(b)’s pre-emptive effect under a claim-by­ claim approach, id.,

at 524. This approach considered each state-law claim and asked whether it is predicated “on a duty ‘based on smoking and health.’ ” Id.,

at 528; see also id., at 524.

If so, the claim is pre-empted.

Id., at 524, 528. If,

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94

v.

Thomas,

., dissenting however, the claim is predicated on a “more general obliga­ tion” under state law, it may proceed.

Id., at 528–529.

Applying a test that it conceded lacked “theoretical ele­ gance , ” id.,

at 530, n. 27, the plurality held that the failure­ to-warn claims were pre-empted “to the extent that those claims rel[ied] on omissions or inclusions in . . . advertising or promotions” of cigarettes.

Id.,

at 531. The same was true for one of the fraud claims, which alleged that the ciga­ rette manufacturers had used their advertising to neutralize the federally required warning labels.

Id.,

at 527–528. The plurality determined that these claims were “predicated on a state-law prohibition against statement s... that tend to minimize the health hazards associated with smoking.” Id.,

at 527. Thus, according to the plurality, these state-law claims sought recovery under the theory that the cigarette manufacturer breached a duty based on smoking or health.

But the plurality found that the other fraud claim, which alleged misrepresentation or concealment of a material fact, was not pre-empted because it was based on a more general state-law obligation: “the duty not to deceive.” Id.,

at 528–529.

Justice Blackmun ,

wr iting for three Justices, departed from the plurality on the antecedent question whether the Labeling Act pre-empted state common-law damages claims at all.

Id., at 535–542 (opinion, joined by Kennedy and Souter,

JJ., concurring in part, concurring in judgment in part, and dissenting in part). He concluded that the phrase “ ‘State law’ ” in § 5(b) referred only to “positive enactments such as statutes and regulations.” Id.,

at 535. But Justice Blackmun specifically noted that even if state common-law claims were within the scope of the Labeling Act, he could not join the plurality’s claim-by-claim approach because he “perceive[d] no principled basis for many of the plurality’s asserted distinctions among the common-law claims.” Id.,

at 543. Justice Blackmun wrote that Congress could not have “intended to create such a hodgepodge of allowed and

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95

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting disallowed claims when it amended the pre-emption provi­ sion in 1970,” and lamented the “difficulty lower courts w[ould] encounter in attempting to implement” the plural­ ity’s test.

Id., at 543–544.

Justice Scalia,

wr iting for two Justices, also faulted the plurality for its claim-by-claim approach.

Id., at 544–556 (opinion, joined by Thomas,

J., concurring in judgment in part and dissenting in part). Although he agreed with the plurality that the phrase “ ‘State law’ ” in § 5(b) encompassed state common-law claims as well as state statutes and regu­ lations, id.,

at 548–549, Justice Scalia

objected to the plu­ rality’s invocation of a presumption against pre-emption to narrowly interpret § 5(b), id.,

at 544, 545–547. Because Con­ gress had expressed its intent to pre-empt state law by enacting § 5(b), the Court’s “responsibility [was] to apply to the text ordinary principles of statutory construction.” Id.,

at 545.

1

By employing its “newly crafted doctrine of narrow construction,” Justice

Scalia

wrote, the plurality arrived at a cramped and unnatural construction of § 5(b) that failed to give effect to the statutory text.

Id., at 544–548.

Applying “ordinary principles” of statutory construction, id., at 548, Justice

Scalia

determined that the proper test for pre-emption of state-law claims under § 5(b) was far less complicated than the plurality’s claim-by-claim approach.

As he explained, “[o]nce one is forced to select a consistent

methodology for evaluating whether a given legal duty is ‘based on smoking and health,’ it becomes obvious that the methodology must focus not upon the ultimate source of the duty . . . but upon its proximate application.” Id.,

at 553.

1

Justice Scalia

also criticized the plurality for announcing a new rule that the enactment of an express pre-emption clause eliminates any con­ sideration of implied pre-emption. He explained that this new rule cre­ ated mischief because, when combined with the presumption against pre­ emption, it placed a heavy burden of exactitude on Congress when it wishes to say anything about pre-emption. See Cipollone,

505 U. S., at 547–548.

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96

v.

Thomas,

., dissenting This “proximate application” test, therefore, focuses not on the state-law duty invoked by the plaintiff, but on the effect of the suit on the cigarette manufacturer’s conduct— i.

e.,

the “requirement” or “prohibition” that would be imposed under state law. Put simply, if, “whatever the source of the duty, [the claim] imposes an obligation . . . because of the effect of smoking upon health,” it is pre-empted.

Id., at 554; see also id.,

at 555 (“The test for pre-emption in this setting should be one of practical compulsion, i.

e.,

whether the law practically compels the manufacturers to engage in behavior that Con­ gress has barred the States from prescribing directly”).

Justice Scalia

also seconded Justice Blackmun’s concern that the lower courts would find the plurality’s distinctions between materially identical state-law claims to be incapable of application: “A disposition that raises more questions than it answers does not serve the country well.” Id.,

at 556.

Sixteen years later, we must confront Cipo ll one

to resolve the question presented in this case: whether respondents’ class-action claims for fraudulent marketing under the MUTPA are pre-empted by § 5(b) of the Labeling Act. The majority adheres to Cipollone

because it “remain[s] per­ suaded” that the plurality’s construction of § 5(b) was “ ‘fair.’ ” Ante,

at 84. I disagree. The Court should dis­ card the Cipollone

plurality’s ill-conceived predicate-duty approach and replace it with Justice

Scalia’ s far more workable and textually sound “proximate application” test.

The majority does not assert that the Cipoll one

plurality opinion is binding precedent, and rightly so. Because the “plurality opinion . . . did not represent the views of a major­ ity of the Court, we are not bound by its reasoning.”

Corp.

v.

Dynamics Corp.

of America,

(footnote omitted). At most, Cipollone is a “point of refer­ ence for further discussion.” Texas

v.

Brown,

737 (1983) (plurality opinion). But even if the plurality opin­

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97

Thomas,

., dissenting ion had some force beyond its mere persuasive value, it nev­ ertheless should be abandoned. It is unworkable; it has been overtaken by more recent decisions of this Court; and it cannot be reconciled with a commonsense reading of the text of § 5(b).

As predicted by a majority of the Justices in Cipo ll one,

the plurality opinion’s claim-by-claim approach has proved unworkable in the lower federal courts and state courts.

The District Court in this case properly observed that “courts remain divided about what the decision means and how to apply it” and that “ Cipollone ’s distinctions, though clear in theory, defy clear application.” 436 F. Supp. 2d 132, 142 (Me. 2006). Other courts have expressed similar frus­ tration with the Cipollone

framework. See, e.

g., Glassner v.

.

Reyno lds Tobacco Co.,

223 F. 3d 343, 348 (CA6 2000)

(“Applying the plurality opinion in Cipollone to the Com­ plaint in the present case is no easy task”); Huddleston

v.

Reyno lds

obacco Co.,

66 F. Supp. 2d 1370, 1380 (ND

Ga. 1999) (“It would be an understatement to say that it is difficult to apply the plurality opinion in Cipollone

to the Amended Complaint in this case. It is an impossibility”); In re

Welding Fume Prods.

Liability Litigation,

364

Supp. 2d 669, 681, n. 13 (ND Ohio 2005) (“[I]n Cipoll one,

the Supreme Cour t... d e l ivered a fractured plurality opin­ ion that is not easy to comprehend”); Whiteley

v.

Philip Mor­ ris, Inc.,

117 Cal. App. 4th 635, 669–670, 11 Cal. Rptr. 3d 807, 835–836 (2004) (“[ Cipollone

is] ‘difficult ’...d u e t o t h e i nher­ ent contradiction at the core of the case”); Mangini

v.

Reynolds Tobacco Co., 21 Cal. Rptr. 2d 232, 244 (Cal. App.

1993) (officially depublished) (“ Cipollone

draws no bright lines amenable to easy application”), aff’d, 7 Cal. 4th 1057, 875 P. 2d 73 (1994).

The Court should not retain an interpretative test that has proved i ncapable of implementation. “[T]he mischievous consequences to litigants and courts alike from the perpetua­

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98

v.

Thomas,

., dissenting tion of an unworkable rule are too great.” Swift & Co.

v.

Wickham,

Federal Election Comm’n v.

Wisconsin Right to Life, Inc.,

(2007) ( Scalia,

concurring in part and concurring in judg­ ment) (“ Stare decisis

considerations carry little weight when an erroneous ‘governing decisio[n]’ has created an ‘unwork­ able’ legal regime” (quoting Payne

v.

Tennessee,

808, 827 (1991))). We owe far more to the lower courts, which depend on this Court’s guidance, and to litigants, who must conform their actions to the Court’s interpretation of federal law. The Cipollone

plurality’s test for pre-emption under § 5(b) should be abandoned for this reason alone.

Furthermore, in the years since Cipo ll one

was decided, this Court has altered its doctrinal approach to express pre­ emption. The Cipollone

plurality justified what it described as the “theoretical [in]elegance” of its construction of § 5(b) by relying on the presumption against pre-emption, which, it argued, required a narrow, but “fair,” construction of the statute. 505 U. S., at 530, n. 27. See, e.

g., id.,

at 518 (ma­ jority opinion) (“This presumption reinforces the appropri­ ateness of a narrow reading of § 5”); id.,

at 523 (plurality opinion) (“[W]e must . . . narrowly construe the precise lan­ guage of § 5(b)”); id.,

at 524 (§ 5(b) must be given “a fair but narrow reading”); id.,

at 529 (“[W]e conclude that the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent statements”). Of course, as Justice

Scalia

ex­ plained, there was nothing “fair” about imposing an artifi­ cially narrow construction on the Labeling Act’s pre-emption provision. See id.,

at 545 (opinion concurring in judgment in part and dissenting in part) (explaining that the presumption against pre-emption “dissolves once there is conclusive evi­ dence of intent to pre-empt in the express words of the stat­ ute itself”).

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99

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting Since Cipollone,

the Court’s reliance on the presumption against pre-emption has waned in the express pre-emption context. In 2002, for example, the Court unanimously ex­ plained that the “task of statutory construction must in the first instance focus on the plain wording of the [express pre­ emption] clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” Sprietsma

v.

Mercury Marine,

537 U. S. 51, 62–63 (internal quotation marks omit­ ted). Without referring to any presumption against pre­ emption, the Court decided that the Federal Boat Safety Act of 1971’s express pre-emption provision did not pre-empt state-law claims.

Id., at 62–64. Most other decisions since Cipollone

also have refrained from invoking the presumption in the context of express pre-emption. See, e.

g., Rowe v.

New Hampshire Motor Transp.

Assn.,

Engine Mfrs.

Assn.

v.

South Coast Air Quality Manage­ ment Dist.,

Buckman Co.

v.

Plaintiffs’ Legal Comm.,

United States v.

Locke,

Geier v.

American Honda Motor Co.,

529

The Court has invoked the presumption sporadically dur­ i ng this timeframe. As the majority notes, ante,

at 77, Med­ tronic, Inc.

v.

Lohr,

518 U. S. 470 (1996), applied the pre­ sumption against pre-emption in deciding that the federal manufacturing and labeling requirements of the Medical De­ vice Amendments of 1976 (MDA) did not pre-empt state common-law claims.

Id., at 500–501. Like Cipollone be­ fore it, Lohr

produced a fractured decision featuring three opinions. 518 U. S., at 474 (opinion of Stevens,

id., at 503 ( Breyer, J., concurring in part and concurring in judg­ ment); id.,

at 509 (O’Connor, J., concurring in part and dissenting in part). And, like Cipollone,

Lohr ’s approach to express pre-emption predates the Court’s recent juris­ prudence on the topic. In fact, this Court last year re­ visited the pre-emption provision of the MDA, 21 U. S. C.

[01-13-14 19:03:36] PAGES PGT:

100

v.

Thomas,

., dissenting § 360k(a)(1), and did not employ any presumption against pre-emption.

Riegel, 552 U. S. 312. See infra, at 101–102.

2

More recently, in Reilly,

533 U. S. 525, a case revisiting the meaning of § 5(b) of the Labeling Act, the Court briefly alluded to the presumption, but did not rely on it to reach its decision. See id.,

at 541–542, 546–551. Indeed, the Court’s cursory treatment of the presumption in Reilly

stands in stark contrast to the First Circuit decision it reversed; the First Circuit relied heavily on the “full force” of the pre­ sumption to determine that the regulations at issue were not pre-empted. See Consolidated

Cigar Corp.

v.

Reilly,

218

3d 30, 38–41 (2000). This Court, in overturning that judg­ ment, decl ined to employ the presumption in its construction of § 5(b). See Reilly,

533 U. S., at 546–551 .

Justice Ste­ vens

highlighted this very point in dissent, arguing that if the presumption had been faithfully applied, the result would have been different.

Id.,

at 591–593 (opinion concurring in part, concurring in judgment in part, and dissenting in part).

The majority also relies on Ba tes v.

Dow Agrosciences

544 U. S. 431 (2005), where the presumption was again mentioned, but only in dicta. As in Reilly,

the presumption did not drive the Court’s construction of the statute at issue.

544 U. S., at 449 (explaining that the presumption meant just that the holding of no pre-emption would have been the same

2

Also, as in Cipollone

v.

Liggett Group, Inc., 505 U. S. 504 (1992), the fractured decision in Lohr

was a source of confusion for the lower courts.

See Kemp v.

Medtronic, Inc.,

231 F. 3d 216, 224 (CA6 2000) (“The various

courts of appeals that have confronted issues of preemption arising under the MDA have struggled mightily with Lohr’s

language in the effort to discern its holding”); see also Martin v.

Medtronic, Inc.,

254 F. 3d 573, 579 (CA5 2001) (“Because only parts of Justice Stevens’s opinion commanded a majority, extracting the final meaning of Lohr

is no easy task. . . . Al­ though Justice Breyer’s concurrence very specifically disavows the view that common law duties cannot provide substantive requirements for the purpose of preemption, neither his concurrence nor the plurality opinion offers much help to us in developing the point”). The confusion was cleared up in Riegel.

See infra, at 101–103.

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101

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting “even if [respondent’s] alternative [construction of the stat­ ute] were just as plausible as our reading of [the statute’s] text”); see also id.,

at 457 ( Thomas,

J., concurring in judg­ ment in part and dissenting in part) (agreeing that the case should be vacated and remanded and reiterating that the “presumption does not appl y... when Congress has included within a statute an express pre-emption provision”). At bottom, although the Court’s treatment of the presumption against pre-emption has not been uniform, the Court’s ex­ press pre-emption cases since Cipollone

have marked a re­ treat from reliance on it to distort the statutory text.

If any doubt remained, it was eliminated last Term in Rie­ gel.

The question in Riegel,

as noted above, was whether the MDA expressly pre-empts state common-law claims “challenging the safety and effectiveness of a medical device given premarket approval by the Food and Drug Administra­ tion.” 552 U. S., at 315. Over the dissent of one Justice, the Court held that the state-law claims were pre-empted because the requirements the plaintiffs sought to impose were “ ‘different from, or in addition to, any requirement applicable ...t o t h e d e v ice’ ” under federal law.

Id.,

at 316 (quoting 21 U. S. C. § 360k(a)(1)). The Court interpreted the statute without reference to the presumption or any per­ ceived need to impose a narrow construction on the provision in order to protect the police power of the States. Rather, the Court simply construed the MDA in accordance with or­ dinary principles of statutory construction.

This was not accidental. The dissent focused on the Court’ s refusal to invoke the presumption in order to save the state-law claims from pre-emption. 552 U. S., at 334– 335 (opinion of Ginsburg,

J.). The dissent was adamant that “[f]ederal laws containing a preemption clause do not automatically escape the presumption against preemption.” Id. , at 334; id.,

at 335 (“Where the text of a preemption clause is open to more than one plausible reading, courts ordinarily ‘accept the reading that disfavors pre-emption’ ” (quoting

[01-13-14 19:03:36] PAGES PGT:

102

v.

Thomas,

., dissenting Bates, supra,

at 449)). In accordance with the presumption, the dissent would have found the state-law claims under re­ view to fall beyond the reach of the MDA’s express pre­ emption provision. 552 U. S., at 334–335; see also id.,

at 338, n.

8; i d.,

at 339, n. 9 (rejecting the majority’s construction of § 360h(d) because “the presumption against preemption [is] operative even in construing a preemption clause”). Given the dissent’s clear call for the use of the presumption against pre-emption, the Court’s decision not to invoke it was neces­ sarily a rejection of any role for the presumption in constru­ ing the statute.

Justice Stevens a lso declined to invoke the presumption in his opinion.

Id.,

at 330–333 (opinion concurring in part and concurring in judgment). In his view, the “significance of the pre-emption provision in the [MDA] was not fully ap­ preciated until many years after it was enacted” and, there­ fore, it is “a statute whose text and general objective cover territory not actually envisioned by its authors.” Id.,

at 330–331. But Justice Stevens’

opinion in Riegel —unlike the majority opinion here, the plurality opinion in Cipollone,

and the dissenting opinion in Riegel —did not

invoke the pre­ sumption to bend the text of the statute to meet the per­ ceived purpose of Congress. Instead, Justice

Stevens

correctly found that “ ‘it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.’ ” 552 U. S., at 331 (quoting Oncale

v.

Sundowner Offsho re Services, Inc.,

In light of Rie gel,

there is no authority for invoking the presumption against pre-emption in express pre-emption cases. The majority here thus turns to Lohr

to revive the presumption and, in turn, to justify its restrictive reading of the Labeling Act’s express pre-emption provision. But, as Riegel

plainly shows, the Court is no longer w illing to unrea­ sonably interpret expressly pre-emptive federal laws in the name of “ ‘congressional purpose,’ ” ante,

at 84, or because “Congress has legislated in a field traditionally occupied by

[01-13-14 19:03:36] PAGES PGT:

103

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting the States,” ante, at 77. The text of the statute must control.

Riegel a lso undermined Cipo llone

in an even more funda­ mental way: It conclusively decided that a common-law cause of action imposes a state-law “ ‘requiremen[t]’ ” that may be pre-empted by federal law. 552 U. S., at 324–325 (“Absent other indication, reference to a State’s ‘requirements’ in­ cludes its common-law duties ....

Indeed, one would think that tort law, applied by juries under a negligence or strict­ liability standard, is less deserving of preservation [than reg­ ulatory legislation]”). Justice Blackmun’s contrary interpre­ tation of § 5(b) of the Labeling Act in Cipollone,

505 U. S., at 538–539 (opinion concurring in part, concurring in judgment in part, and dissenting in part), which provided the votes necessary for the judgment, thus is no longer tenable. In light of Riegel ’s rejection of the presumption against pre­ emption relied on by the plurality, as well as the definition of “requirements” relied on in Justice Blackmun’s opinion, Cipollone ’s approach to express pre-emption is nothing more than “a remnant of abandoned doctrine.” Planned

Parent­ hood of Southeastern Pa.

v.

Casey,

The Cipo llone

plura lity’s reading of § 5(b) of the Labeling Act was further undermined by this Court’s decision in Reilly,

533 U. S. 525. There, the Court confronted regula­ tions imposed by the Massachusetts attorney general on the location of tobacco advertising pursuant to the Common­ wealth’s unfair trade practices statute.

Id., at 533–536.

The Court found the regulations—to the extent they applied to cigarettes—expressly pre-empted because, although Mas­ sachusetts remained free to enact “generally applicable zon­ ing restrictions,” its imposition of “special requirements or prohibitions ‘based on smoking and health’ ‘with respect to the advertising or promotion’ of cigarettes” fell within the ambit of § 5(b)’s pre-emptive sweep.

Id., at 551.

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104

v.

Thomas,

., dissenting Reilly did not ignore Cipollone.

It cited the plurality opinion extensively in its discussion of the basic history and text of the Labeling Act. 533 U. S., at 540–546. But in ana­ lyzing whether the regulations enacted by the Massachusetts attorney general were expressly pre-empted, the Court was silent about Cipollone.

533 U. S., at 546–551. Unlike the District Court, which saw “the central question for purposes of pre-emption [as] whether the regulations create[d] a predi­ cate legal duty based on smoking and health,” id.,

at 537, the Court’s substantive examination of the regulations under § 5(b) included no mention of the Cipollone

plurality’s “predi­ cate duty” test. See 533 U. S., at 546–551. Instead, the Court disagreed with “the Attorney General’s narrow con­ struction” of the statute’s “ ‘based on smoking and health’ ” language, and concluded that the regulations were pre­ empted because they were “motivated by” and “intertwined with” the concerns about smoking and health.

Id., at 547–548.

Reilly, therefore, cannot be reconciled with the Cipollone

plurality’s interpretation of § 5(b) of the Labeling Act. The regulations at issue in Reilly

were enacted to implement a Massachusetts state law imposing a duty against unfair and deceptive trade practices—the same predicate duty asserted under the MUTPA in this case. 533 U. S., at 533. The state-law duty at issue in Reilly

was no less general than the state-law duty at issue in this case or the state-law fraud claims confronted in Cipollone.

Compare Mass. Gen. Laws, ch. 93A, § 2(a) (West 1996) (“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful”), with Me. Rev. Stat. Ann., Tit. 5, § 207 (Supp. 2008) (“Unfair meth­ ods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlaw­ ful”), and Cipollone,

supra,

at 528 (explaining that the “pred­ icate” of the plaintiff’s fraudulent misrepresentation claim was “a state-law duty not to make false statements of mate­

[01-13-14 19:03:36] PAGES PGT:

Cite as: 555 U. S. 70 (2008)

105

Thomas,

., dissenting rial fact or to conceal such facts”). Faithful application of the Cipollone

plurality opinion, therefore, would have re­ quired the Court in Reilly

to uphold the regulations. In­ deed, Justice Stevens argued as much in his dissent. 533

S., at 597 (opinion concurring in part, concurring in judg­ ment i n part, and dissenting in part) (noting that “[n]ary a word in any of the three Cipollone

opinions supports the thesis that § 5 should be interpreted to pre-empt state regu­ lation of the location of signs advertising cigarettes”).

And yet, the majority today finds that Re i lly and Cipol­ lone

are perfectly compatible. It contends that, although the regulations in question in Reilly

“derived from a general deceptive practices statute like the one at issue in this case,” they were pre-empted because they “targeted advertising that tended to promote tobacco use by children instead of prohibiting false or misleading statements.” Ante,

at 83.

According to the majority, that legal duty contrasts with the regulations here, as “[t]he MUTPA says nothing about either ‘smoking’ or ‘health.’ ” Ante,

at 84; see also ante, at 81.

But the Cipollone

plurality expressly rejected any distinc­ tion between targeted regulations like those in Reilly

and general duties imposed by the common law. 505 U. S., at 522.

In fact, the general duties underlying the failure-to­ war n and warning-neutralization claims in Cipollone —which the plurality found to be pre-empted—say nothing about smoking and health.

Id., at 524; see also id., at 553 ( Scalia,

J., concurring in judgment in part and dissenting in part) (noting that the duty to warn about a product’s dangers was not “specifically crafted with an eye toward ‘smoking and health’ ”).

Accordingly, Rei lly

is better understood as establishing that even a general duty can impose requirements or prohibi­ tions based on smoking and health.

Reilly weakened the force of the Cipollone

plurality’s “predicate duty” approach to the pre-emptive effect of § 5(b) and cast doubt on its con­ tinuing utility.

[01-13-14 19:03:36] PAGES PGT:

106

v.

Thomas,

., dissenting

Finally, the Cipo ll one

plurality’s approach should be dis­ carded because its “predicate duty” approach is unpersua­ sive as an initial matter. In considering the warning­ neutralization claim, for example, the Cipollone

plurality asserted that the claim is predicated on a state-law prohibi­ tion against minimizing the health risks associated with smoking. 505 U. S., at 527. The Court today reaffirms this view.

Ante, at 81; see also ante,

at 84 (describing § 5(b) as expressly pre-empting “rules . . . that are based on smoking and health”). But every products liability action, including a failure-to-warn action, applies generally to all

products.

See Cipollone, 505 U. S., at 553 (opinion of Scalia,

Thus, the “duty” or “rule” involved in a failure-to-warn claim is no more specific to smoking and health than is a common­ law fraud claim based on the “duty” or “rule” not to use deceptive or misleading trade practices. Yet only for the latter was the Cipollone

plurality content to ignore the con­ text in which the claim is asserted. This shifting level of generality was identified as a logical weakness in the original Cipollone

plurality decision by a majority of the Court, id., at 543 (

lackmun, J., concurring in part, concurring in judg­ ment in part, and dissenting in part); id.,

at 553–554 (opinion of Scalia, J.), and it remains equally unconvincing today.

It is therefore unsurprising that the Court’s defense of the plura l ity’s confusing test is confined to one sentence and a footnote. See ante,

at 84 (“While we again acknowledge that our analysis of these claims may lack ‘theoretical ele­ gance,’ we remain persuaded that it represents ‘a fair under­ standing of congressional purpose’ ” (quoting Cipollone,

supra, at 529–530, n. 27)); ante,

at 81, n. 7. The majority instead argues that this approach “fails to explain why Con­ gress would . . . permi[t] cigarette manufacturers to engage in fraudulent advertising.” Ibid.

But no explanation is necessary; the text speaks for itself. Congress has pre­ empted only those claims that would impose “requirement[s]

[01-13-14 19:03:36] PAGES PGT:

107

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting or prohibition[s] based on smoking and health.” 15 U. S. C. § 1334(b). Thus, if cigarette manufacturers were to falsely advertise their products as “American-made,” or “the official cigarette of Major League Baseball,” state-law claims arising from that wrongful behavior would not be pre-empted.

Furthermore, contrary to the majority’s policy arguments, faithfu l application of the statutory language does not au­ thorize fraudulent advertising with respect to smoking and health.

3

Any misleading promotional statements for ciga­ rettes remain subject to federal regulatory oversight under the Labeling Act. See § 1336. The relevant question thus is not whether “petitioners will be prohibited from se lling as ‘light’ or ‘low tar’ only those cigarettes that are not actually light and do not actually deliver less tar and nicotine.” Ante,

at 83, n. 10. Rather, the issue is whether the Labeling Act allows regulators and juries to decide, on a state-by­ state basis, whether petitioners’ light and low-tar descriptors were in fact fraudulent, or instead whether § 5(b) charged the Federal Government with reaching a comprehensive judgment with respect to this question.

Congress chose a uniform federal standard. Under the Label i ng Act, Congress “establish[ed] a comprehensive Fed­ eral Program to deal with cigarette labeling and advertis­ ing,” 15 U. S. C. § 1331, so that “commerce and the national economy may . . . not [be] impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health,” § 1331(2)(B).

4

The majority’s distorted interpreta­

3

The majority’s policy-based attack could just as easily be leveled against its own determination that the Labeling Act pre-empts failure-to­ warn claims. But just as there is no basis in fact or law to contend that the Labeling Act encourages the marketing of hazardous products without adequate warning labels, ante,

at 81–82, n. 8, there is no basis to contend that the text of the Labeling Act permits fraudulent advertising.

4

The majority contends that the relatively constrained enforcement power of the Federal Trade Commission (FTC) in 1970 undermines any argument that Congress intended the Labeling Act to prevent States from

[01-13-14 19:03:36] PAGES PGT:

108

v.

Thomas,

., dissenting tion of § 5(b) defeats this express congressional purpose, opening the door to an untold number of deceptive-practices lawsuits across the country. The question whether mar­ keting a light cigarette is “ ‘misrepresentative’ ” in light of compensatory behavior “would almost certainly be answered differently from State to State.” Cipollone,

supra, at 553 ( Scalia,

concurring in judgment in part and dissenting in part). This will inevitably result in the nonuniform imposi­ tion of liability for the marketing of light and/or low-tar ciga­ rettes—the precise problem that Congress intended § 5(b) to remedy.

In light of these serious flaws in the majority’s approach, e ven if the Cipollone

plurality opinion were binding prece­ dent, the Court “should not hesitate to allow our precedent to yield to the true meaning of an Act of Congress when our statutory precedent is ‘unworkable’ or ‘badly reasoned.’ ” Clark

v.

Martinez,

Thomas, J., dis­ senting) (quoting Holder v.

Hall,

( Thomas, J., concurring in judgment), in turn quoting Payne,

501 U. S., at 827). Where, as here, there is “confusion fol­ lowing a splintered decision,” that “is itself a reason for reex­ amining that decision.” Nichols

v.

United States,

738, 746 (1994). When a decision of this Court has failed to properly interpret a statute, we should not “place on the shoulders of Congress the burden of the Court’s own error.” Girouard

v.

United States,

5

regulating deceptive advertising and marketing of cigarettes.

Ante,

at 79–80, n. 6. I am unwilling to rely on the majority’s perception of the relative power of the FTC in 1970 to ignore Congress’ stated purpose in enacting the Labeling Act and the plain meaning of the Act’s express pre-emption provision.

5

The United States, in its amicus

brief and at oral argument, conspicu­ ously declined to address express pre-emption or defend the Cipollone

opinion’s reasoning. See Brief for United States as Amicus Curiae 14– 33.

Instead, it addressed only the question of implied pre-emption, an issue

do not reach because of my resolution of the question on express pre-emption.

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109

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting

Applying the proper test— i.

e.,

whether a jury verdict on respondents’ claims would “impos[e] an obligation” on the cigarette manufacturer “because of the effect of smoking upon health,” Cipollone,

505 U. S., at 554 (opinion of Scalia,

J.), respondents’ state-law claims are expressly pre-empted by § 5(b) of the Labeling Act. Respondents, longtime smok­ ers of Marlboro Lights, claim that they have suffered an in­ jury as a result of petitioners’ decision to advertise these cigarettes as “light” and/or “low-tar and low-nicotine prod­ ucts.” See 436 F. Supp. 2d, at 144–145. They claim that petitioners marketed their cigarettes as “light” and/or “low­ tar and low-nicotine products” despite knowledge that light­ cigarette smokers would engage in compensatory behavior causing them to inhale at least as much tar and nicotine as smokers of regular cigarettes.

Ibid.

Respondents thus al­ lege that they were misled into thinking that they were gain­ ing a health advantage by smoking the light cigarettes, ibid.,

and, as a result, petitioners’ conduct was an “unfair or decep­ tive ac[t] or practic[e]” under the MUTPA, Me. Rev. Stat.

Ann., Tit. 5, § 207; 436 F. Supp. 2d, at 133.

Respondents’ claims seek to impose liability on petitioners because of the effect that smoking light cigarettes had on their health. The alleged misrepresentation here—that “light” and “low-tar” cigarettes are not as healthy as adver­ tised—is actionable only

because of the effect that smoking light and low-tar cigarettes had on respondents’ health.

Otherwise, any alleged misrepresentation about the effect of the cigarettes on health would be immaterial for purposes of the MUTPA and would not be the source of the injuries that provided the impetus for the class-action lawsuit. See State

v.

Weinschenk,

28, ¶ 17, 868 A. 2d 200, 206 (“An act or practice is deceptive [under the MUTPA] if it is a material

representation, omission, act or practice that is likely to mis­ lead consumers acting reasonably under the circumstances” (emphasis added)). Therefore, with this suit, respondents

[01-13-14 19:03:36] PAGES PGT:

110

v.

Thomas,

., dissenting seek to require

the cigarette manufacturers to provide addi­ tional warnings about compensatory behavior, or to prohibit

them from se lling these products with the “light” or “low­ tar” descriptors. This is exactly the type of lawsuit that is pre-empted by the Labeling Act. Cf.

Rowe,

552 U. S., at 372 (finding pre-emption of a Maine regulation of shipping of tobacco products where “[t]he Maine law . . . produces the very effect that the federal law sought to avoid”).

Because the proper test for pre-emption is to look at the fac tua l basis of a complaint to determine if a claim imposes a requirement based on smoking and health, there is no meaningful distinction to be drawn in this case between common-law failure-to-warn claims and claims under the

6

As the majority readily admits, both types of claims impose duties with respect to the same conduct— i.

e.,

the marketing of “light,” “low-tar,” and “low-nicotine” ciga­ rettes. See ante,

at 82, n. 9. If the claims arise from identi­ cal conduct, the claims impose the same requirement or pro­ hibition with respect to that conduct. And when that allegedly wrongful conduct involves misleading statements about the health effects of smoking a particular brand of cig­ arette, the liability and resulting requirement or prohibition are, by definition, based on smoking and health.

6

The majority’s observation that no warning-neutralization claim is at issue in this case, ante,

at 82, n. 9, misses the point. The principal weak­ ness in the Cipollone

plurality’s logic is not its distinction between claims for warning neutralization and claims for fraud. It is the fact that the predicate duty underlying New Jersey’s products liability law, from which the majority now claims the warning-neutralization claim derived, see ante,

at 81–82, n. 8, was no more specific to smoking and health than the predicate duty underlying the fraud claim, see Cipollone,

505 U. S., at 552–553 (opinion of Scalia,

Each

duty transcends the relationship between the cigarette companies and cigarette smokers; neither

duty was specifically crafted with an eye toward ‘smoking and health’ ”); id.,

at 543 (opinion of Blackmun, J.); see also supra,

at 106. Thus, the products liabil­ ity and the fraud claims must stand or fall together. The majority’s re­ fusal to address the logical inconsistency of its approach remains as glaring today as it was in Cipollone.

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111

Cite as: 555 U. S. 70 (2008) Thomas,

., dissenting Finally, at oral argument, respondents argued that their claims do not impose requirements based on smoking and health because the damages they seek to recover are not based on the effect of smoking on their health; rather, re­ spondents are “asking . . . for the difference in value between a product [they] thought [they] were buying and a product [they] actually bought.” Tr. of Oral Arg. 29. But the re­ quirement or prohibition covered by § 5(b) is created by the imposition of liability for particular conduct—here, the way in which petitioners marketed “light” and “low-tar,” and “low-nicotine” cigarettes—not by the manner in which re­ spondents have chosen to measure their damages. No mat­ ter how respondents characterize their damages claim, they have not been injured for purposes of the MUTPA, and thus cannot recover, unless their decision to purchase the ciga­ rettes had a negative effect on their health.

In any event, respondents sought “such injunctive relief as may be appropriate” in this case. App. 42a. The MUTPA specifically authorizes “other equitable relief, including an injunction,” to remedy unfair or deceptive trade practices.

Me. Rev. Stat. Ann., Tit. 5, § 213(1) (2002). And a court­ crafted injunction prohibiting petitioners from marketing light cigarettes would be no less a requirement or prohibition than the regulations found to be pre-empted in Reilly.

In the end, no matter what form the remedy takes, the liability with respect to the specific claim still creates the require­ ment or prohibition. When that liability is necessarily premised on the effects of smoking on health, as respondents’ claims are here, the civil action is pre-empted by § 5(b) of the Labeling Act.

The Court today elects to convert the Cipo ll one

plurality opinion into binding law, notwithstanding its weakened doc­ trinal foundation, its atextual construction of the statute, and the lower courts’ inability to apply its methodology. The re­ sulting confusion about the nature of a claim’s “predicate

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112

v.

Thomas,

., dissenting duty” and inevitable disagreement in the lower courts as to what type of representations are “material” and “mislead­ ing” will have the perverse effect of increasing the nonuni­ formity of state regulation of cigarette advertising, the exact problem that Congress intended § 5(b) to remedy. It may even force us to yet again revisit the Court’s interpretation of the Labeling Act. Because I believe that respondents’ claims are pre-empted under § 5(b) of the Labeling Act, I respectfully dissent.