Phillip Morris v. Harshbarger
Case Date: 08/18/1997
Docket No: 97-8022
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For the First Circuit ____________________ No. 97-8022 PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, AND LORILLARD TOBACCO COMPANY, Plaintiffs, Appellants, v. L. SCOTT HARSHBARGER, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, AND DAVID H. MULLIGAN, MASSACHUSETTS COMMISSIONER OF PUBLIC HEALTH, Defendants, Appellees. No. 97-8023 UNITED STATES TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO CORPORATION, CONWOOD COMPANY, L.P., NATIONAL TOBACCO COMPANY, L.P., THE PINKERTON TOBACCO COMPANY, AND SWISHER INTERNATIONAL, INC. Plaintiffs, Appellants, v. L. SCOTT HARSHBARGER, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, AND DAVID H. MULLIGAN, MASSACHUSETTS COMMISSIONER OF PUBLIC HEALTH, Defendants, Appellees. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. George A. O'Toole, Jr., U.S. District Judge] ____________________ Before Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Stahl, Circuit Judge. ____________________ Henry C. Dinger, P.C., with whom Cerise Lim-Epstein, Goodwin, Procter & Hoar, LLP, Verne W. Vance, Jr., Foley, Hoag & Eliot, Herbert Dym, E. Edward Bruce, David H. Remes, Jarrett A. Williams, Jason A. Levine, and Covington & Burling, were on brief for Philip Morris appellants. George J. Skelly, with whom Thomas J.Dougherty, Skadden, Arps, Slate, Meagher & Flom LLP, A. Hugh Scott, Denise W. DeFranco, Choate, Hall & Stewart, John L. Oberdorfer, Stuart M. Pape, G. Kendrick MacDowell, and Patton Boggs, L.L.P., were on brief for United States Tobacco Company appellants. Rebecca P. McIntyre, Assistant Attorney General, with whom Thomas A. Barnico, Assistant Attorney General and L. Scott Harshbarger, Attorney General, were on brief for appellees. Carol J. Bennett, James P. Jacobson, Ann Beimdiek Kinsella, D. Douglas Blanke, Attorneys for State of Minnesota, Hubert H. Humphrey III, Attorney General for State of Minnesota, Grant Woods, Attorney General for State of Arizona, Winston Bryant , Attorney General for State of Arkansas, Daniel E. Lundgren, Attorney General for State of California, Richard Blumenthal, Attorney General for State of Connecticut, Robert A. Butterworth, Attorney General for State of Florida, Margery S. Bronster, Attorney General for State of Hawaii, James E. Ryan, Attorney General for State of Illinois, Jeffrey A. Modisett, Attorney General for State of Indiana, Thomas J. Miller, Attorney General for State of Iowa, J. Joseph Curran, Jr., Attorney General for State of Massachusetts, Frank J. Kelley, Attorney General for State of Michigan, Mike Moore, Attorney General for State of Mississippi, Jeremiah W. (Jay) Nixon, Attorney General for State of Missouri, Joseph P. Mazurek, Attorney General for State of Montana, Frankie Sue Del Papa, Attorney General for State of Nevada, Peter Verniero, Attorney General for State of New Jersey, Tom Udall , Attorney General for State of New Mexico, Dennis C. Vacco, Attorney General for State of New York, Heidi Heitkamp, Attorney General for State of North Dakota, Betty D. Montgomery, Attorney General for State of Ohio, W.A. Drew Edmondson, Attorney General for State of Oklahoma, Hardy Myers, Attorney General for State of Oregon, D. Michael Fisher, Attorney General for State of Pennsylvania, Jeffrey B. Pine , Attorney General for State of Rhode Island, Mark Barnett , Attorney General for State of South Dakota, Dan Morales, Attorney General for State of Texas, Jan Graham, Attorney General for State of Utah, William Sorrell, Attorney General for State of Vermont, Christine O. Gregoire , Attorney General for State of Washington, Darrell V. McGraw, Jr., Attorney General for State of West Virginia, James E. Doyle , Attorney General for State of Wisconsin, Louise H. Renne , City Attorney, City of San Francisco, CA, Elizabeth D. Laporte, Chief of Special Litigation, City of San Francisco, CA, and Andrew Y.S. Cheng, Deputy City Attorney, City of San Francisco, CA, on brief amici curiae. ___________________ August 18, 1997 ___________________ STAHL, Circuit Judge. This appeal implicates the constitutionality of a Massachusetts statute requiring manufacturers of tobacco products to disclose the additives and nicotine-yield ratings of their products to the state's public health department. See Mass. Gen. Laws ch. 94, S 307B (the "Disclosure Act"). Plaintiffs-appellants, various manufacturers of cigarette and smokeless tobacco products (collectively, "the manufacturers"), appeal the district court's grant of summary judgment in favor of defendants- appellees, the Attorney General of the Commonwealth of Massachusetts and the Massachusetts Public Health Commissioner (collectively, the "Commonwealth"). The district court ruled that neither the Federal Cigarette Labeling and Advertising Act, as amended (the "FCLAA"), 15 U.S.C. SS 1331-41, nor the Comprehensive Smokeless Tobacco Health Education Act of 1986 (the "Smokeless Tobacco Act"), 15 U.S.C. SS 4401-08, preempts enforcement of the Disclosure Act. We affirm the district 1. The specific plaintiffs-appellants are Philip Morris Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, and Lorillard Tobacco Company ("the cigarette manufacturers") [case no. 97-8022], and United States Tobacco Company, Brown & Williamson Tobacco Corporation, Conwood Company, L.P., National Tobacco Company, L.P., The Pinkerton Tobacco Company, and Swisher International, Inc. ("the smokeless tobacco manufacturers") [case no. 97-8023]. 2. The specific defendants-appellees are L. Scott Harshbarger, Attorney General of the Commonwealth of Massachusetts, and David H. Mulligan, Massachusetts Commissioner of Public Health. -4- 4 court's ruling, and hold that the Massachusetts Disclosure Act survives the manufacturers' preemption challenge. I. Prior Proceedings On August 2, 1996, the day Massachusetts enacted the Disclosure Act, the cigarette manufacturers and smokeless tobacco manufacturers separately filed complaints in the district court claiming that the FCLAA and the Smokeless Tobacco Act preempt the state law by operation of the Supremacy Clause of the U.S. Constitution. Their complaints also allege that the Disclosure Act violates the Constitution's Commerce Clause, Full Faith and Credit Clause, Fourteenth Amendment Due Process Clause, and Takings Clause. The parties cross-moved for summary judgment in each case on the preemption claim only. After denying the manufacturers' motions and granting the Commonwealth's motions, the district court amended its orders to certify the rulings for immediate appeal. See 28 U.S.C. S 1292(b). We accepted interlocutory review of the orders. This appeal, therefore, presents only the preemption issue. 3. Because of the Disclosure Act's extended effective date, now November 1, 1997, the district court deferred consideration of the manufacturers' contemporaneously filed preliminary injunction motion. -5- 5 II. Standard of Review We review the district court's summary judgment ruling de novo. Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 562 (1st Cir. 1996). The ultimate determination whether federal law preempts the Massachusetts Disclosure Act presents a legal question subject to plenary review. See United States v. Rhode Island Insurers' Insolvency Fund, 80 F.3d 616, 619 (1st Cir. 1996). III. Background We begin our discussion with a review of the Massachusetts Disclosure Act and the allegedly preempting federal laws, the FCLAA and the Smokeless Tobacco Act. In so doing, we consider the statutes' respective texts along with the relevant historical and legislative contexts in which they were enacted. See Wood v. General Motors Corp. , 865 F.2d 395, 404 (1st Cir. 1988) ("In determining questions of preemption, a court 'must examine the [act's] language against the 4. When reviewing a district court's ruling on cross-motions for summary judgment, normally we consider the record evidence with respect to each motion separately "to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed." Wightman v. Springfield Terminal Ry. Co. , 100 F.3d 228, 230 (1st Cir. 1996). See 10A Charles A. Wright, et al., Federal Practice and Procedure , S 2720 (1983). Here, however, because no underlying issue of material fact exists with respect to the legal preemption issue, we need not consider each motion separately. -6- 6 background of its legislative history and historical context.'" (quoting California Federal Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284 (1987))). Next, we set forth controlling preemption principles. Finally, we turn to the question whether the federal statutes in question either expressly or impliedly preempt the state statute. We note here that the Supreme Court's splintered decision in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) heavily influences, and in part controls, much of our analysis. A. The Disclosure Act The Massachusetts Disclosure Act, the first state law of its kind, requires "any manufacturer of cigarettes, snuff or chewing tobacco sold in the commonwealth" to provide the Massachusetts Department of Public Health with a yearly report that lists for each brand of product (1) any added constituents "in descending order according to weight, measure, or numerical count," and (2) nicotine yield ratings "which shall accurately predict nicotine intake for average consumers." Mass. Gen. Laws ch. 94, S 307B. The Disclosure Act permits public access to the information reported upon an appropriate finding by the department. Specifically, the Disclosure Act provides: The nicotine yield ratings so provided, and any other such information in the annual reports with respect to which the department determines that there is a 5. See Appendix A for the full text of the Disclosure Act, Mass. Gen. Laws ch. 94, S 307B. -7- 7 reasonable scientific basis for concluding that the availability of such information could reduce risks to public health, shall be public records. Id. The public health department may not reveal the information, however, "unless and until the attorney general advises that such disclosure would not constitute an unconstitutional taking." Id. Despite the apparent limitations on the public health department's ability to disclose reported information, the record evidence strongly indicates that Massachusetts officials intend to publicize the information. At oral argument before us, the Commonwealth avoided direct questions on this issue, asserting that the department's potential publication of the information was irrelevant for the purposes of preemption analysis. For the purposes of this case, we assume that the department will make the information publicly available at the first legal and practical opportunity. By all indications, the purpose of the Disclosure Act is to further the public health and education in the use of tobacco products. Most tellingly, the law prefaces its requirements with the phrase, "For the purpose of protecting the public health." Mass. Gen. Laws. ch. 94, S 307B. In addition, a press release from the Massachusetts Executive Department released the same day the law was enacted describes the Disclosure Act as a "consumer protection law" intended to -8- 8 foster educated decision-making on the part of the consuming public when choosing specific tobacco products and brands. B. The Federal Laws 1. FCLAA In 1964, the United States Surgeon General's advisory committee issued a report that officially acknowledged the health hazards of cigarette smoking. See Cipollone, 505 U.S. at 513. In response, the Federal Trade Commission, as well as several states, moved to impose various warning requirements in the advertising and labeling of cigarettes. Id.; see also Palmer v. Liggett Group, Inc. , 825 F.2d 620, 622 n.1 (1st Cir. 1987) (noting example of New York State's warning label requirement). In light of "the potential maze of conflicting state regulations" on the subject, Palmer, 825 F.2d at 622, and after "vigorous lobbying by all forms of interested groups and business," id. at 623, Congress passed the first version of the FCLAA in 1965 (the "1965 Act"). Congress expressly declared its "policy and purpose" in passing the 1965 Act: It is the policy of the Congress, and the purpose of this chapter, 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 cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package of cigarettes; and -9- 9 (2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health. 15 U.S.C. S 1331. The Cipollone majority determined that the congressional purposes expressed in this provision were as follows: (1) adequately informing the public that cigarette smoking may be hazardous to health, and (2) protecting the national economy from the burden imposed by diverse, nonuniform, and confusing cigarette labeling and advertising regulations. 505 U.S. at 514. The Court explained that the 1965 Act contained specific provisions "[i]n furtherance of" these two congressional purposes. Id. To further the first purpose, the 1965 Act mandated a specific warning label on each cigarette package: "CAUTION: CIGARETTE SMOKING MAY BE HAZARDOUS TO YOUR HEALTH." Id. To further the second purpose, see id., the statute included a preemption provision, which, in part, prohibited the requirement of any "statement relating to smoking and health . . . on any cigarette package" other than the required warning. 15 U.S.C. S 1334(a). The 1965 Act's preemption clause further provided: 6. At the time, the warning was not required in cigarette advertisements. -10- 10 (b) No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act. 15 U.S.C. S 1334(b) (1966), amended by 15 U.S.C. S 1334(b) (1969). By its own terms, the 1965 Act's provisions pertaining to advertising were to terminate on July 1, 1969. See Cipollone, 505 U.S. at 514. As that date approached, various federal agencies and states proposed new and differing cigarette advertising regulations. See id. at 514-15. Faced with these various initiatives, Congress amended the 1965 Act by enacting the Public Health Cigarette Smoking Act of 1969 (the "1969 Act"). The 1969 Act strengthened the wording of the required warning label: "WARNING: THE SURGEON GENERAL HAS DETERMINED THAT CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH." 15 U.S.C. S 1333 (1969). The 1969 Act also prohibited cigarette advertising on television and radio and any other "medium of electronic communication subject to the jurisdiction of the Federal Communications Commission." 15 U.S.C. S 1335. Relatedly, the 1969 Act replaced subsection (b) of the 1965 7. For example, the Federal Communications Commission announced its intention to consider a proposed rule that would ban radio and television cigarette commercials, while the California Senate "passed a total ban on both print and electronic cigarette advertisements." Cipollone, 505 U.S. at 515 & n.11. -11- 11 Act's preemption provision with the following language, which remains unmodified to this day: (b) No 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. 15 U.S.C. S 1334(b). The Senate Report accompanying the 1969 Act explained that the revised preemption provision was necessary "to avoid the chaos created by a multiplicity of conflicting [cigarette advertising] regulations." S. Rep. No. 91-566 (1970), reprinted in 1970 U.S.C.C.A.N. 2652, 2663. Senate Report 566 further explained: The State preemption of regulation or prohibition with respect to cigarette advertising is narrowly phrased to preempt only State action based on smoking and health. It would in no way affect the power of any State or political subdivision of any State with respect to the taxation or the sale of cigarettes to minors, or the prohibition of smoking in public buildings, or similar police regulations. It is limited entirely to State or local requirements or prohibitions in the advertising of cigarettes. Id. 8. In part because the new preemption provision banned restrictions imposed only "under State law," in 1972 the Federal Trade Commission extended the warning requirements to print advertisements, as well as package labels. See Cipollone, 505 U.S. at 515. -12- 12 After thirteen years of scientific research following the enactment of the 1969 Act, Congress further amended the FCLAA in 1984. See H.R. Rep. No. 98-805, at 12 (1984), reprinted in 1984 U.S.C.C.A.N. 3718, 3725. Renewed congressional action in this area was in part prompted by Surgeon General reports identifying cigarette smoking as a significant risk factor in certain health problems. See id. (citing various reports). In light of the Surgeon General's findings and testimony before congressional committees on the adverse health effects of smoking, Congress passed the Comprehensive Smoking Education Act of 1984 (the "CSEA"). House Report 805 states that the CSEA's purpose was "to assist the public to make an informed decision about whether or not to smoke" "[b]y updating the cigarette warning, by giving visibility and emphasis to smoking research and educational activities at the Federal level, and by working closer with the private voluntary health section." Id. Specifically, the CSEA amended the FCLAA by establishing a new warning system employing four different smoking and health messages that would alternate quarterly on both cigarette packages and cigarette advertisements. See 15 U.S.C. S 1333. To reflect the new multiple-warning system, 9. Specifically, the new required warnings, all preceded by the phrase "SURGEON GENERAL'S WARNING," are as follows: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy. -13- 13 Congress amended the language in the statute's purpose provision from "a warning . . . on each package of cigarettes [that] cigarette smoking may be hazardous to health" to "warning notices on each package of cigarettes and in each advertisement of cigarettes [to inform the public] about any adverse health effects of cigarette smoking." S 1331(1); see also H.R. Rep. No. 98-805, at 21, 1984 U.S.C.C.A.N. at 3734. Significantly, the CSEA inserted an ingredient reporting provision that requires cigarette manufacturers to "annually provide the Secretary [of Health and Human Services] with a list of the ingredients added to tobacco in the manufacture of cigarettes which does not identify the company which uses the ingredients or the brand of cigarettes which contain the ingredients." S 1335a(a). The provision permits, but does not mandate, "[a] person or group of persons required to provide [the list] . . . [to] designate an individual or entity to provide the list." Id. In other words, to satisfy their respective reporting obligations, the manufacturers at their option may submit ingredient lists to a designated agent Quitting Smoking Now Greatly Reduces Serious Risks to Your Health. Smoking by Pregnant Women May Result in Fetal Injury, Premature Birth, and Low Birth Weight. Cigarette Smoke Contains Carbon Monoxide. 15 U.S.C. S 1333(a). -14- 14 who, in turn, may transmit the information aggregately to the Secretary. Based on the information provided, the Secretary must transmit a report to Congress, "[a]t such times as the Secretary considers appropriate," on research activities regarding the health effects or risks of cigarette additives and "any other information which the Secretary determines to be in the public interest." S 1335a(b)(1). The ingredient reporting provision sets forth comprehensive procedures for the Secretary's handling of the information provided. Specifically, S 1335(b)(2)(A) provides: Any information provided to the Secretary under subsection (a) of this section shall be treated as trade secret or confidential information subject to section 552(b)(4) of Title 5 [providing a trade secret exemption for disclosure under the Freedom of Information Act] and section 1905 of Title 18 [criminalizing disclosure of confidential information by federal officers or employees] and shall not be revealed, except as provided in paragraph (1) [respecting the Secretary's report to Congress], to any person other than those authorized by the Secretary in carrying out their official duties under this section. 10. The legislative history indicates that the ingredient reporting provision was intended to supply statutory authority to require the manufacturers to disclose such information and to "supercede, in all respects, a voluntary agreement entered into between the Department of [Health and Human Services] and the tobacco industry in June, 1982." H.R. Rep. No. 98-805, at 21, 1984 U.S.C.C.A.N. at 3734. The House Report further explains that the provisions "would permit the federal government to initiate the toxicologic research necessary to measure any health risk posed by the addition of additives and other ingredients to cigarettes during the manufacturing process." Id. -15- 15 Despite the above-quoted section, a different section directs that the Secretary may not withhold the ingredient information from a requesting congressional committee or subcommittee. See S 1335a(b)(2)(B). When faced with such a request, the Secretary must make the list available "and shall, at the same time, notify in writing the person who provided the list of such request." Id. Finally, the ingredient reporting provision requires the Secretary to ensure the confidentiality of the provided information through specified procedures, including (1) a designated custodian of the information who, when the information is not in use, "shall store it in a locked cabinet or file" and shall keep a record of those inspecting or using the information, S 1335a(b)(2)(C), and (2) a requirement that persons "permitted access to the information shall be instructed in writing not to disclose the information to anyone who is not entitled to have access to the information." Id. 11. The extent to which members of Congress are bound, if at all, by the disclosure prohibitions is unclear. 12. It appears, however, that the Secretary's efforts to notify the "person who provided the list" may be made more difficult by S 1335a(a)'s option for such persons to provide the list anonymously through a third individual or entity. 13. In addition to amending the FCLAA, the CSEA also directed the Secretary to "establish and carry out a program to inform the public of any dangers to human health presented by cigarette smoking." 15 U.S.C. S 1341. Pursuant to that program, the Secretary must, inter alia, coordinate research on smoking and health and disseminate pertinent information to the public. See id. at S 1341(a). To carry out some of the -16- 16 2. Smokeless Tobacco Act By the mid-1980's, Congress became concerned that the federal government's activities regarding the health hazards of cigarette smoking had no parallel with respect to smokeless tobacco products such as chewing tobacco and snuff. See S. Rep. No. 99-209, at 3-4 (1986), reprinted in 1986 U.S.C.C.A.N. 7, 9-10. According to the Senate Report, the almost-forgotten smokeless tobacco industry had staged a recent resurgence, and its products had become popular among youth who apparently considered such products a safe alternative to cigarette smoking. See id. Further evidence suggested that smokeless tobacco products contained "significant levels of nicotine" and were linked with serious health problems, including oral cancer. S. Rep. No. 99-209, at 3, 1986 U.S.C.C.A.N. at 9. These factors led to regulatory action on various fronts regarding warning requirements. For example, a Massachusetts executive order required warning labels on the packages and in the advertisements of smokeless tobacco products. Id. Additionally, prominent health organizations called for legislation requiring warnings, and the FTC enlisted the Surgeon General's help in considering a petition seeking program's purposes, the CSEA established an Interagency Committee on Smoking and Health. See id. at S 1341(b). The Secretary also must transmit specified reports to Congress regarding efforts made to inform the public of the health hazards of smoking and other information. See id. at S 1341(c). -17- 17 warning label requirements. See S. Rep. No. 99-209, at 4-5, 1986 U.S.C.C.A.N. at 10-11. In response to such regulatory efforts, Congress passed the Comprehensive Smokeless Tobacco Health Education Act of 1986 (the "Smokeless Tobacco Act"). The Senate Report explains that the Act, "for the most part, simply extends the provisions of . . . the Comprehensive Smoking Education Act of 1984, to include smokeless tobacco products." S. Rep. No. 99- 209, at 5, 1986 U.S.C.C.A.N. at 11. Thus, the Smokeless Tobacco Act contains features similar, but not identical, to the FCLAA as amended by the CSEA. Like the CSEA, the Smokeless Tobacco Act calls for the Secretary of Health and Human Services to "establish and carry out a program to inform the public of any dangers to human health resulting from the use of smokeless tobacco products." 15 U.S.C. S 4401. The statute bans the advertising of smokeless tobacco on radio and television, see 15 U.S.C. S 4402(f), and establishes a rotating warning requirement for package labels and advertising, with specific warnings regarding the potential adverse health effects of smokeless tobacco products. See S 4402. 14. The specific texts of the alternative warnings, all preceded by the word "WARNING," read: THIS PRODUCT MAY CAUSE MOUTH CANCER. THIS PRODUCT MAY CAUSE GUM DISEASE AND TOOTH LOSS. -18- 18 Congress included in the Smokeless Tobacco Act an express preemption provision which states, in pertinent part: No statement relating to the use of smokeless tobacco products and health, other than the statements required by [this act], shall be required by any State or local statute or regulation to be included on any package or in any advertisement . . . of a smokeless tobacco product. 15 U.S.C. S 4406(b). Unlike the FCLAA, the Smokeless Tobacco Act contains a "savings clause," which provides: "Nothing in this chapter shall relieve any person from liability at common law or under State statutory law to any other person." 15 U.S.C. S 4406(c). The Smokeless Tobacco Act similarly provides for anonymous and aggregate ingredient reporting to the Secretary THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO CIGARETTES. 15 U.S.C. S 4402(a)(1). 15. Additionally, the Smokeless Tobacco Act specifically precludes any federal agency from requiring any such statements. See 15 U.S.C. S 4406(a). 16. Senate Report 209 explains that "the Committee [on Labor and Human Resources" wants to emphasize that by including provisions in [the Act] which require health warnings on packages and advertisements for smokeless tobacco products, and by preempting State and local laws requiring additional health warnings, it does not intend to preempt a State's ability to control the promotion or advertising of tobacco products and does not intend to preempt product liability suits in State or Federal courts based on failure to warn." S. Rep. No. 99-209, at 14, 1986 U.S.C.C.A.N. at 13. -19- 19 of Health and Human Services. S 4403(a). Unlike the FCLAA, however, the Smokeless Tobacco Act also requires smokeless tobacco manufacturers to specify the nicotine quantity contained in each product. Id. The statute's provisions for the Secretary's handling of the information are essentially identical to those in the FCLAA, except for the absence of a cross reference to 18 U.S.C. S 1905, which criminalizes unauthorized disclosure of confidential information. Compare 15 U.S.C. S 1335(b)(2)(A) with 15 U.S.C. S 4403(b)(2). The statute also requires the Secretary to transmit informative and advisory reports to Congress. See 15 U.S.C. S 4407. C. Preemption Principles Having reviewed the federal and state statutes at issue in this case, we now consider the preemption principles that control our analysis of the question whether federal law either explicitly or impliedly preempts the challenged state law. We begin by noting that the health and safety of each state's citizens "are primarily, and historically, matters of local concern." Medtronic v. Lohr, 116 S. Ct. 2240, 2245 (1996). Accordingly, "the States traditionally have had great latitude under their police powers to legislate as to the 17. According to the Senate Report, the Smokeless Act's ingredient reporting provision is "very similar" to that in the CSEA and "is included to further the accumulation of knowledge about the health risks of smokeless tobacco use, particularly the possible hazards of substances added to tobacco to enhance flavor and for other purposes." S. Rep. No. 99-209, at 14, 1986 U.S.C.C.A.N. at 13. -20- 20 protection of the lives, limbs, health, comfort and quiet of all persons." Id. (internal quotation marks, citations, and alterations omitted). The Massachusetts Disclosure Act comfortably falls within the "health and safety" realm of traditional state police powers. Cf. Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 605 (1991) (indicating that regulation of hazardous pesticides are matters of the states' "historic police powers"); Tart v. Massachusetts, 949 F.2d 490, 501 (1st Cir. 1991) (confirming state's "police power" to regulate the transshipment of raw fish). Nevertheless, Article VI of the United States Constitution provides that federal law "shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2. As a result, "any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield." Gade v. National Solid Wastes Mgmt. Ass'n , 505 U.S. 88, 108 (1992) (internal quotation marks and citations omitted). Thus, in this case, we must determine whether the Disclosure Act sufficiently interferes with, and therefore must yield either to the FCLAA or the Smokeless Tobacco Act, or both. In any preemption analysis, "[t]he purpose of Congress is the ultimate touchstone." Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 (1990) (internal quotation marks -21- 21 and citations omitted). The Supreme Court recently framed the crucial inquiry as follows: "Did Congress, in enacting the Federal Statute, intend to exercise its constitutionally delegated authority to set aside the laws of a State?" Barnett Bank v. Nelson, 116 S. Ct. 1103, 1107 (1996). To discern Congress' intent, "we examine the explicit statutory language and the structure and purpose of the statute." Ingersoll-Rand Co., 498 U.S. at 138. One method by which Congress may evince preemptive intent is through explicit preemption language. See Jones v. Rath Packing Co. , 430 U.S. 519, 525 (1977). Although Congress need not employ express preemption language to communicate such intent, see International Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987), when Congress so chooses, our task in divining its intent with respect to the issue at hand may be "an easy one," English v. General Elec. Co., 496 U.S. 72, 79 (1990). "More often, explicit pre-emption language does not appear, or does not directly answer the question. In that event, courts must consider whether the federal statute's 'structure and purpose,' or nonspecific statutory language, nonetheless reveal a clear, but implicit, pre-emptive intent." Barnett Bank , 116 S. Ct. 1108 (quoting Jones, 430 U.S. at 525). Thus, for example, state law is impliedly preempted to the extent it "actually conflicts" with federal law. See Cipollone, 505 U.S. at 516. Actual conflict occurs where -22- 22 compliance with both state and federal law is a "physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 143 (1963), or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Additionally, the pervasiveness of a federal scheme, the dominance of the federal interest, or the federal goals and obligations may reasonably permit an inference that Congress intended a federal law to "occupy a field" of commerce exclusively, disallowing concurrent state operation or supplementation even where the state law does not otherwise "conflict" with federal law. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Finally, there exists an assumption that federal law does not supersede a state's historic police powers "'unless that [is] the clear and manifest purpose of Congress.'" Cipollone, 505 U.S. at 516 (quoting Rice, 331 U.S. at 230); see Hillsborough County v. Automated Medical Labs, 471 U.S. 707, 18. The preemption framework described, while providing a useful backdrop for our analysis, does not reflect "rigidly distinct" preemption categories. English, 496 U.S. at 79 n.5. For example, "field pre-emption may be understood as a species of conflict pre-emption: A state law that falls within a pre- empted field conflicts with Congress' intent (either express or plainly implied) to exclude state regulation." Id. See also Hines, 312 U.S. at 67 (stating that "none of these expressions provides an infallible constitutional test or an exclusive constitutional yardstick"); Palmer, 825 F.2d 620, 625-26 (describing preemption labels as "[not] necessarily helpful" and looking to Congress' intent and the effect of state law on the federal scheme). -23- 23 715 (1985) (noting "presumption that state or local regulation of matters related to health and safety is not invalidated under the Supremacy Clause"); see also Buono v. NYSA-ILA Medical & Clinical Svcs. Fund, 117 S. Ct. 1747, 1751 (1997). The "health and safety" presumption applies in both express and implied preemption analyses. See Greenwood Trust Co. v. Commonwealth, 971 F.2d 818, 823 (1st Cir. 1992) ("Even federal statutes that contain express preemption clauses must be viewed through the prism of [the] assumption."); see also Vango Media, Inc. v. City of New York , 34 F.3d 68, 72 (2d Cir. 1994) (noting that presumption applies "[w]hether preemption under the Supremacy Clause be explicit, or implied under field preemption, or under conflict preemption") (involving preemptive effect of FCLAA over city ordinance respecting tobacco-product advertising). The Disclosure Act, being an 19. In Cipollone, a majority of the Supreme Court employed the presumption in analyzing and construing the 1965 Act's express preemption provision. See 505 U.S. at 518. In Wilson v. Bradlees of New Eng., 96 F.3d 552, 557 (1st Cir. 1996), cert. denied, 117 S. Ct. 1083 (1997), however, we questioned the force of the presumption "in the construction of express preemption clauses" in view of the Justices' apparently differing opinions on the subject in its post- Cipollone decision, Medtronic v. Lohr. Compare 116 S. Ct. at 2250 (plurality confirming the presumption as "consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety"); with id. at 2263 (four Justices, concurring in part and dissenting in part, employing an analysis suggesting that normal statutory construction principles apply when construing express preemption clause). Just last Term, however, the Supreme Court reaffirmed the applicability of the presumption in interpreting even an expansive preemption clause. See California Labor Stds. Enforcement v. Dillingham Constr., 117 S. Ct. 832, 838, -24- 24 exercise of the Commonwealth's police powers to protect the health and safety of her citizens, benefits from the presumption against preemption. While these principles are readily enough stated, their application in practice can be rather difficult because each preemption scenario necessarily involves a unique intersection of federal and state law. See Hines, 312 U.S. at 67 (explaining that, with respect to preemption analysis, there is no "rigid formula or rule which can be used as a universal pattern to determine the meaning and purpose of every act of Congress"). Thus, our task requires us to scrutinize the relevant statutory language, in light of Congress' evident purpose and pertinent case law, to determine whether Congress intended to preempt state laws such as the Disclosure Act. IV. Analysis A. Express Preemption Because Congress included express preemption language in both the FCLAA and the Smokeless Tobacco Act, "our initial concern is with express preemption and with the reach of the clause[s] in question." Wilson v. Bradlees of New Eng., Inc. , 96 F.3d 552, 554 (1st Cir. 1996), cert. denied, 117 S. Ct. 1083 (1997). In this analysis, we compare the Disclosure Act with 842 (1997) (unanimous decision) (applying presumption in interpretation of broad preemption language in the Employee Retirement Income Security Act of 1974). -25- 25 the language of the preemption clauses and cases interpreting it to determine whether the state law falls within the intended preemptive scope. See Grenier, 96 F.3d at 562. We discuss each statute in turn. 1. FCLAA Because the Disclosure Act does not require a "statement relating to smoking and health . . . on any cigarette package," 15 U.S.C. S 1334(a) (emphasis added), we are concerned only with S 1334(b), which provides: No 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. 15 U.S.C. S 1334(b). a. Cipollone We begin with Cipollone, which concerned the viability of state common-law damages actions against cigarette manufacturers for injuries stemming from the lung-cancer death of Rose Cipollone. See 505 U.S. 504 (1992). The Court analyzed the statutory preemption language of both the 1965 and 1969 Acts, but because the plaintiffs' claims arose before 1984, the Court did not consider the CSEA's potential effect on those claims. See id. at 508. In the Court's mixed ruling, Justice Stevens' opinion spoke for a majority of the Court in certain sections, but largely represented the views of only a -26- 26 plurality of the Court. The ruling also produced two separate opinions concurring in part and dissenting in part. Principally, the Justices disagreed over whether or not state common-law damages actions, as opposed to positive enactments by state legislatures or administrative bodies, fell within the scope of the express preemption provisions in the 1965 and 1969 Acts. While a majority of the Court held that the 1965 Act did not pree |