Altria Group, Inc. v. Good

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

ALTRIA GROUP, INC., ET AL. v. GOOD 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, alleg
ing that petitioners violated the Maine Unfair Trade Practices Act
(MUTPA) by fraudulently advertising that their “light” cigarettes de
livered 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 (Labeling Act). The First Circuit reversed, holding that the La
beling Act neither expressly nor impliedly pre-empts respondents’
fraud claim.
Held: Neither 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. 5–20.
(a) Congress may indicate pre-emptive intent through a statute’s
express language 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 LLC, 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 ef
fects of nonuniform requirements to the extent consistent with the
first goal. Although fidelity 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 smok
ing 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. 5–9.
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Syllabus

(b) Respondents’ claim is not expressly pre-empted by §1334(b). As
determined in Cipollone v. Liggett Group, Inc., 505 U. S. 504, and
Lorillard 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 con
cluded that “the phrase ‘based on smoking and health’ fairly but nar
rowly construed” did not pre-empt the Cipollone plaintiff’s common
law claim that cigarette manufacturers had fraudulently misrepre
sented and concealed a material fact, because the claim alleged a vio
lation of a duty not to deceive—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 smok
ing 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 peti
tioners’ alternative argument that the express pre-emption frame
work of Cipollone and Reilly should be rejected. American Airlines,
Inc. v. Wolens, 513 U. S. 219, and Riegel v. Medtronic, Inc., 552 U. S.
___, are distinguished. Pp. 9–16.
(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. 17–20.
501 F. 3d 29, affirmed and remanded.

STEVENS, J., 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, C. J., and SCALIA and ALITO, JJ., joined.
 Cite as: 555 U. S. ____ (2008) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
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SUPREME COURT OF THE UNITED STATES
_________________

No. 07–562
_________________

ALTRIA GROUP, INC., ET AL., PETITIONERS v.

STEPHANIE GOOD ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[December 15, 2008]

JUSTICE STEVENS delivered the opinion of the Court.
Respondents, who have for over 15 years smoked “light”
cigarettes manufactured by petitioners, Philip Morris
USA, Inc., and its parent company, Altria Group, Inc.,
claim that petitioners violated the Maine Unfair Trade
Practices Act (MUTPA). Specifically, they allege that
petitioners’ advertising fraudulently conveyed the mes
sage that their “light” cigarettes deliver less tar and nico
tine to consumers than regular brands despite petitioners’
knowledge that the message 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 re
spondents’ state-law claim is pre-empted by the Federal
Cigarette Labeling and Advertising Act, as amended
(Labeling Act). The Court of Appeals reversed that judg
ment, and we granted certiorari to review its holding that
the Labeling Act neither expressly nor impliedly pre
empts respondents’ fraud claim. We affirm.
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Opinion of the Court

I
Respondents are Maine residents and longtime smokers
of Marlboro Lights and Cambridge Lights cigarettes,
which are manufactured by petitioners. Invoking the
diversity jurisdiction of the Federal District Court, re
spondents filed a complaint alleging that petitioners delib
erately 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 fraudulently marketed their cigarettes as
being “light” and containing “ ‘[l]owered [t]ar and
[n]icotine’ ” to convey to consumers that they deliver less
tar and nicotine and are therefore less harmful than regu
lar cigarettes. App. 28a–29a.
Respondents acknowledge that testing pursuant to the
Cambridge Filter Method2 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 rele
vant times that human smokers unconsciously engage in
compensatory behaviors not registered by Cambridge
Filter Method testing that negate the effect of the tar- and
——————
1 The MUTPA provides, as relevant, that “[u]nfair methods of compe

tition 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).
2 The Cambridge Filter Method weighs and measures the tar and

nicotine collected by a smoking machine that takes 35 milliliter puffs of
two seconds’ duration every 60 seconds until the cigarette is smoked to
a specified 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 manu
facturers to publish test results in their advertisements.
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Opinion of the Court

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 vio
lated the MUTPA by fraudulently concealing that infor
mation and by affirmatively representing, 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., 505 U. S.
504 (1992), and Lorillard Tobacco Co. v. Reilly, 533 U. S.
525 (2001), the District Court concluded that respondents’
MUTPA claim is pre-empted. The court recast respon
dents’ claim as a failure-to-warn or warning neutralization
claim of the kind pre-empted in Cipollone: The claim
charges petitioners with “produc[ing] a product it knew
contained hidden risks . . . not apparent or known to the
consumer”—a claim that “runs to what [petitioners] actu
ally said about Lights and what [respondents] claim they
should have said.” 436 F. Supp. 2d 132, 151 (Me. 2006).
And the difference between what petitioners said and
what respondents would have them say is “ ‘intertwined
with the concern about cigarette smoking 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
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Opinion of the Court

precisely the kind that §1334(b) pre-empts, and it granted
summary judgment for petitioners.
Respondents appealed, and the Court of Appeals re
versed. The Court of Appeals first rejected the District
Court’s characterization of respondents’ claim as a warn
ing neutralization claim akin to the pre-empted claim in
Cipollone. 501 F. 3d 29, 37, 40 (CA1 2007). Instead, the
court concluded that respondents’ claim is in substance a
fraud claim that alleges that petitioners falsely repre
sented their cigarettes as “light” or having “lowered tar
and nicotine” even though they deliver to smokers the
same quantities of those components as do regular ciga
rettes. Id., at 36. “The fact that these alleged misrepre
sentations were unaccompanied by additional 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 obstacle to
the purported policy of the FTC allowing the use of de
scriptive terms that convey Cambridge Filter Method test
results. Accordingly, it reversed the judgment of the
District 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 plaintiffs’ 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. ___ (2008).
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Opinion of the Court

II
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 conflict with federal law are “without effect.” Mary
land v. Louisiana, 451 U. S. 725, 746 (1981).
Our inquiry into the scope of a statute’s pre-emptive
effect is guided by the rule that “ ‘[t]he purpose of Congress
is the ultimate touchstone’ in every pre-emption case.”
Medtronic, 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 Packing Co., 430 U. S. 519,
525 (1977). If a federal law contains an express pre
emption clause, it does not immediately end the inquiry
because the question of the substance and scope of Con
gress’ 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 conflict
between state and federal law. Freightliner Corp. v.
Myrick, 514 U. S. 280, 287 (1995).
When addressing questions of express or implied pre
emption, we begin our analysis “with the assumption that
the historic police powers of the States [are] not to be
superseded by the Federal Act unless that was the clear
and manifest purpose of Congress.” Rice v. Santa Fe
Elevator Corp., 331 U. S. 218, 230 (1947). That assump
tion applies with particular force when Congress has
legislated in a field traditionally 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]
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Opinion of the Court

fiel[d] of traditional state regulation,’ 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 plausi
ble reading, courts ordinarily “accept the reading that
disfavors pre-emption.” Bates v. Dow Agrosciences LLC,
544 U. S. 431, 449 (2005).
Congress enacted the Labeling Act in 19653 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 warn
ing. 79 Stat. 283. Congress amended the Labeling Act a
few years later by enacting the Public Health Cigarette
Smoking Act of 1969.4 The amendments strengthened the
language of the prescribed warning, 84 Stat. 88, and pro
hibited cigarette advertising in “any medium of electronic
communication subject to [FCC] jurisdiction,” id., at 89.
They also broadened the Labeling Act’s pre-emption provi
sion. See Cipollone, 505 U. S., at 520 (plurality 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 manufac
turers 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

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

Stat. 2201, 15 U. S. C. §1333(a).
 Cite as: 555 U. S. ____ (2008) 7

Opinion of the Court

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 in
clusion of a warning to that effect on each package of
cigarettes; and
“(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, non
uniform, and confusing cigarette labeling and adver
tising regulations with respect to any relationship be
tween smoking and health.” 79 Stat. 282, 15 U. S. C.
§1331.
The requirement that cigarette manufacturers include in
their packaging and advertising the precise warnings
mandated 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
emption provisions. Section 5(a) protects cigarette manu
facturers from inconsistent state labeling laws by prohibit
ing 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 advertising or promotion of any cigarettes
the packages of which are labeled in conformity with the
provisions of this chapter.” §1334(b).
Together, the labeling requirement and pre-emption
provisions express Congress’ determination that the pre
scribed federal warnings are both necessary and sufficient
to achieve its purpose of informing the public of the health
consequences of smoking. Because Congress has decided
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Opinion of the Court

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 warnings 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 pro
hibit deceptive statements in cigarette advertising. Peti
tioners acknowledge that “Congress had no intention of
insulating tobacco companies from liability for inaccurate
statements about the relationship between smoking and
health.” Brief for Petitioners 28. But they maintain that
Congress could not have intended to permit the enforce
ment of state fraud rules because doing so would defeat
the Labeling Act’s purpose of preventing nonuniform state
warning requirements. 15 U. S. C. §1331.6 As we ob
——————
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 otherwise affect the authority of the Federal Trade Commis
sion with respect to unfair or deceptive acts or practices in the advertis
ing of cigarettes.” §1336. A plurality of this Court has previously read
this clause to “indicat[e] that Congress intended the phrase ‘relating to
smoking and health’ . . . to be construed narrowly, so as not to pro
scribe the regulation of deceptive advertising.” Cipollone v. Liggett
Group, Inc., 505 U. S. 504, 528–529 (1992). Nothing in the clause
suggests that Congress meant to proscribe the States’ historic regula
tion of deceptive advertising practices. 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 practices in
cigarette advertisements.
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Opinion of the Court

served in Cipollone, however, fraud claims “rely only on a
single, uniform standard: falsity.” 505 U. S., at 529 (plu
rality opinion).
Although it is clear that fidelity to the Act’s purposes
does not demand the pre-emption of state fraud rules, the
principal question that we must decide is whether the text
of §1334(b) nevertheless requires that result.
III
We have construed the operative phrases of §1334(b) in
two prior cases: Cipollone, 505 U. S. 504, and Reilly, 533
U. 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 Cipollone, the plurality, which consisted of Chief
Justice 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 con
cluded that the provision does not preclude all common
law claims that have some relationship to smoking and
health. 505 U. S., at 521–523. To determine 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 constitutes a ‘require
ment or prohibition based on smoking and health . . . with
respect to . . . advertising or promotion,’ giving that clause
a fair but narrow reading.” Id., at 524.
Applying this standard, the plurality held that the
plaintiff’s claim that cigarette manufacturers had fraudu
lently misrepresented and concealed a material fact was
not pre-empted. That claim alleged a violation of the
manufacturers’ duty not to deceive—a duty that is not
“based on” smoking and health. Id., at 528–529. Respon
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Opinion of the Court

dents 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 analo
gous to the “warning neutralization” claim found to be pre
empted in Cipollone. Although the plurality understood
the plaintiff 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 hazards associated with smoking,”
id., at 527. Thus understood, the Cipollone plurality’s
analysis of the warning neutralization claim has no appli
cation in this case.8

——————
7 In his dissent, JUSTICE THOMAS criticizes our reliance on the plural

ity opinion in Cipollone, post, at 6–8, 14–19, 22, and advocates adopting
the analysis set forth by JUSTICE SCALIA in his opinion concurring in the
judgment in part and dissenting in part in that case, post, at 3–6, 19–
21. 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 approach.
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
advertising. 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 neutraliza

tion claim was “merely the converse of a state-law requirement that
warnings be included in advertising and promotional materials,” 505
U. S., at 527, evincing the plurality’s recognition that warning neutrali
zation 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 16, is beside the point, as no such claim is at issue
in this litigation.
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Opinion of the Court

Petitioners nonetheless contend that respondents’ claim
is like the pre-empted warning neutralization claim be
cause 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 Labeling Act’s text or purpose or in the
plurality opinion in Cipollone suggests that whether a
claim is pre-empted turns in any way on the distinction
between misleading and inherently 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 extent 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 holding 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 purchase petitioners’ product alleges a breach of
the duty not to deceive.9 To be sure, the presence of the
federally mandated warnings may bear on the materiality
of petitioners’ allegedly fraudulent statements, “but that
possibility does not change [respondents’] case from one
——————
9 As the Court of Appeals observed, respondents’ allegations regard

ing 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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Opinion of the Court

about the statements into one about the warnings.” 501
F. 3d, at 44.10
Our decision in Reilly is consistent with Cipollone’s
analysis. Reilly involved regulations promulgated by the
Massachusetts 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 customers.’ ” 533
U. S., at 533 (quoting 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 advertising. The attorney general
promulgated those restrictions pursuant to his statutory
authority to prevent unfair or deceptive trade practices.
Mass. Gen. Laws, ch. 93A, §2 (West 1996). But although
the attorney general’s authority derived from a general
deceptive practices statute like the one at issue in this
case, the challenged regulations targeted advertising that
tended to promote tobacco use by children instead of pro
hibiting false or misleading statements. Thus, whereas
the “prohibition” in Cipollone was the common-law fraud
rule, the “prohibitions” in Reilly were the targeted regula
——————
10 JUSTICE THOMAS contends that respondents’ fraud claim must be
pre-empted because “[a] judgment in [their] favor will . . . result in a
‘requirement’ that petitioners represent the effects of smoking on
health in a particular way in their advertising and promotion of light
cigarettes.” Post, at 3. He further asserts that “respondents seek to
require the cigarette manufacturers to provide additional warnings
about compensatory behavior, or to prohibit them from selling these
products with the ‘light’ or ‘low-tar’ descriptors.” Post, at 20. But this
mischaracterizes the relief respondents seek. If respondents prevail at
trial, petitioners will be prohibited from selling as “light” or “low tar”
only those cigarettes that are not actually light and do not actually
deliver less tar and nicotine. Barring intervening federal regulation,
petitioners would remain free to make nonfraudulent use of the “light”
and “low-tar” descriptors.
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Opinion of the Court

tions. Accordingly, our holding in Reilly that the regula
tions 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 decep
tion to which the prohibition is applied in a given case.
It is true, as petitioners argue, that the appeal of their
advertising is based on the relationship between smoking
and health. And although respondents have expressly
repudiated 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 arguments are unavailing, 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., rules—that are based on smoking and
health. The MUTPA 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 acknowledge that our analysis of these claims may
lack “theoretical elegance,” we remain persuaded that it
——————
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
practices that prompted congressional action in 1969. 505 U. S., at 515,
and n. 11.
14 ALTRIA GROUP, INC. v. GOOD

Opinion of the Court

represents “a fair understanding of congressional pur
pose.” Cipollone, 505 U. S., at 529–530, n. 27 (plurality
opinion).
Petitioners also contend that the plurality opinion is
inconsistent with our decisions in American Airlines, Inc.
v. Wolens, 513 U. S. 219 (1995), and Riegel v. Medtronic,
Inc., 552 U. S. ___ (2008). Both cases, however, are inap
posite—the first because it involved a pre-emption provi
sion 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 Wolens 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 Illinois 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 provision, “ ‘relating to rates, routes, or services,’ ”
is a broad one. Morales v. Trans World Airlines, Inc., 504
U. S. 374, 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 U. 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
airline industry. 504 U. S., at 383–384.12 Unquestionably,
——————
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
Airlines, Inc. v. Wolens, 513 U. S 219 (1995). At issue in Morales were
guidelines regarding the form and substance of airline fare advertising
 Cite as: 555 U. S. ____ (2008) 15

Opinion of the Court

the 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 connection with,” id., at 384, “based on” describes a more
direct relationship, see Safeco Ins. Co. of America v. Burr,
551 U. S. ___, ___ (2007) (slip op., at 13) (“In common talk,
the phrase ‘based on’ indicates a but-for causal relation
ship and thus a necessary logical condition”).
Petitioners’ reliance on Riegel is similarly misplaced.
The plaintiffs in Riegel sought to bring common-law de
sign, manufacturing, and labeling defect claims against
the manufacturer 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 effectiveness that is different from, or
in addition to, federal requirements.” Riegel, 552 U. S., at
___ (slip op., at 14) (quoting 21 U. S. C. §360k(a); emphasis
deleted).
The catheter at issue in Riegel 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 ap
proval to be made with almost no design, manufacturing,
or labeling deviations from the specifications in its ap
proved application. The plaintiffs’ products liability
——————
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
directives that targeted the subject matter made off-limits by the ADA’s
express pre-emption provisions. See also Rowe v. New Hampshire
Motor Transp. Assn., 552 U. S. ___ (2008) (holding that targeted ground
carrier regulations were pre-empted by a statute modeled on the ADA).
16 ALTRIA GROUP, INC. v. GOOD

Opinion of the Court

claims fell within the core of the MDA’s pre-emption pro
vision because they sought to impose different require
ments on precisely those aspects of the device that the
FDA had approved. Unlike the Cipollone plaintiff’s fraud
claim, which fell outside of the Labeling Act’s pre-emptive
reach because it did not seek to impose a prohibition
“based on smoking and health,” the Riegel plaintiffs’ com
mon-law products liability claims unquestionably sought
to enforce “requirement[s] relating to safety or effective
ness” 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
provides an additional basis for distinguishing Riegel.
Thus, contrary to petitioners’ suggestion, Riegel is entirely
consistent with our holding in Cipollone.
In sum, we conclude now, as the plurality did in Cipol
lone, 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.
IV
As an alternative to their express pre-emption argu
ment, petitioners contend that respondents’ claim is impli
edly 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 pro
moted the development and consumption of low tar ciga
rettes and has encouraged consumers to rely on represen
tations of tar and nicotine content based on Cambridge
Filter Method testing in choosing among cigarette brands.
Even if such a regulatory policy could provide a basis for
obstacle pre-emption, petitioners’ description of the FTC’s
actions in this regard are inaccurate. The Government
itself disavows any policy authorizing the use of “light”
and “low tar” descriptors. Brief for United States as
 Cite as: 555 U. S. ____ (2008) 17

Opinion of the Court

Amicus Curiae 16–33.
In 1966, following the publication of the Surgeon Gen
eral’s report on smoking and health, the FTC issued an
industry guidance stating its view that “a factual state
ment of the tar and nicotine content (expressed in milli
grams) of the mainstream 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 guidance applied only to factual
assertions of tar and nicotine yields and did not invite
“collateral representations . . . made, expressly or by im
plication, as to reduction or elimination of health haz
ards.” Id., at 479a. A year later, the FTC reiterated its
position in a letter to the National Association of Broad
casters. 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, proposing 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 ciga
rette manufacturers responded by submitting a voluntary
agreement under which they would disclose tar and nico
tine 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 nico
tine yields in cigarette advertising using a government
mandated testing methodology and has authorized them
to use descriptors as shorthand references to those nu
merical test results.” Brief for Petitioners 2 (emphasis in
original). As the foregoing history shows, however, the
FTC has in fact never required that cigarette manufactur
ers disclose tar and nicotine yields, nor has it condoned
18 ALTRIA GROUP, INC. v. GOOD

Opinion of the Court

representations of those yields through the use of “light”
or “low tar” descriptors.
Subsequent Commission actions further undermine
petitioners’ claim. After the tobacco companies agreed to
report tar and nicotine yields as measured by the Cam
bridge Filter Method, the FTC continued to police ciga
rette companies’ misleading use of test results. In 1983,
the FTC responded to findings that tar and nicotine yields
for Barclay cigarettes obtained through Cambridge Filter
Method testing were deceptive because the cigarettes in
fact delivered 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 manufacturer’s representation “that consumers will
get less tar by smoking ten packs of Carlton brand ciga
rettes than by smoking 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., 119 F. T. C. 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 smoking.” Ibid.13
——————
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 Commis
sion 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 content as measured by the Cambridge Filter Method. Id.,
at 258. Petitioners 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 respon
dents’ claim is impliedly pre-empted.
 Cite as: 555 U. S. ____ (2008) 19

Opinion of the Court

This history shows that, contrary to petitioners’ sugges
tion, the FTC has no longstanding policy authorizing
collateral representations based on Cambridge Filter
Method test results. Rather, the FTC has endeavored to
inform consumers of the comparative tar and nicotine
content of different cigarette brands and has in some
instances prevented misleading representations of Cam
bridge 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 federal 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 deci
sion not to regulate propeller guards did not impliedly pre
empt petitioner’s tort claims).14
More telling 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 defini
tions for” the terms “light” and “low tar,” and it sought
comments on whether “there [is] a need for official guid
ance with respect to the terms” and whether “the descrip
tors 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 communities 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 informed decisions.” Id., at
74503. The Commission’s notice of its proposal to rescind
——————
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
petitioners’ 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.
20 ALTRIA GROUP, INC. v. GOOD

Opinion of the Court

the guidance also reiterated the original limits of that
guidance, noting that it “only addresse[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
inaction with regard to “light” descriptors even arguably
justifies the pre-emption of state deceptive practices rules
like the MUTPA.
V
We conclude, as we did in Cipollone, 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 provi
sion nor the FTC’s actions in this field prevent a jury from
considering that claim. Accordingly, 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.
 Cite as: 555 U. S. ____ (2008) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–562
_________________

ALTRIA GROUP, INC., ET AL., PETITIONERS v.

STEPHANIE GOOD ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

[December 15, 2008]

JUSTICE THOMAS, with whom THE CHIEF JUSTICE,
JUSTICE SCALIA, and JUSTICE ALITO join, dissenting.
This appeal requires the Court to revisit its decision in
Cipollone 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 Federal Cigarette Labeling and Advertising
Act, as amended in 1969 (Labeling Act or Act). The Label­
ing Act requires that specific health warnings be placed on
all cigarette packaging 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 “re­
quirement or prohibition based on smoking and health . . .
imposed under State law with respect to the advertising or
promotion of any cigarettes.” §1334(b).
Whether §5(b) pre-empts state common-law claims
divided the Court in Cipollone. The plurality opinion
found some 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 require­
ment or prohibition based on smoking and health . . .
imposed under State law with respect to . . . advertising or
2 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

promotion.” 505 U. S., at 524 (internal quotation marks
omitted; emphasis added). A majority of the Court dis­
agreed with the plurality’s predicate-duty approach. Id.,
at 543 (Blackmun, J., concurring in part, concurring in
judgment in part, and dissenting 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 interpretation of §5(b) created an unwork­
able test for pre-emption with little or no relationship to
the text of the statute. Id., at 544, 555–556. The interven­
ing years have vindicated JUSTICE SCALIA’s critical as­
sessment; the lower courts have consistently expressed
frustration at the difficulty in applying 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. Medtronic, Inc.,
552 U. S. ___ (2008), and to §5(b) of the Labeling Act
specifically, Lorillard Tobacco Co. v. Reilly, 533 U. S. 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 liability for deceiving purchasers about the health
effects of smoking light cigarettes is not a “requirement or
prohibition based on smoking and health” under the La­
beling 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 interpreting §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, J.).
Respondents’ lawsuit under the Maine Unfair Trade
Practices Act (MUTPA), Me. Rev. Stat. Ann., Tit. 5, §207
(Supp. 2008), is expressly pre-empted under §5(b) of the
 Cite as: 555 U. S. ____ (2008) 3

THOMAS, J., dissenting

Labeling Act. The civil action is premised on the allega­
tion that the cigarette manufacturers misled respondents
into believing that smoking light cigarettes would be
healthier for them than smoking regular cigarettes. A
judgment in respondents’ favor will thus result in a “re­
quirement” that petitioners represent the effects of smok­
ing on health in a particular way in their advertising and
promotion of light cigarettes. Because liability in this case
is thereby premised on the effect of smoking on health, I
would hold that respondents’ state-law claims are ex­
pressly pre-empted by §5(b) of the Labeling Act. I respect­
fully dissent.
I
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 manu­
facturer asserted that the claims were pre-empted by §5(b)
of the Labeling Act.
In deciding the case, the Court could not agree on the
meaning 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
heavily on a “presumption against the pre-emption of state
police power regulations,” a plurality opinion by JUSTICE
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, however, the claim is predicated on a “more gen­
eral obligation” under state law, it may proceed. Id., at
528–529.
4 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

Applying a test that it conceded lacked “theoretical
elegance,” 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 cigarette manufacturers had used their advertis­
ing 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
statements . . . 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, writing 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 judg­
ment 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 ap­
proach 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 disallowed claims when it
 Cite as: 555 U. S. ____ (2008) 5

THOMAS, J., dissenting

amended the pre-emption provision in 1970,” and la­
mented the “difficulty lower courts w[ould] encounter in
attempting to implement” the plurality’s test. Id., at 543–
544.
JUSTICE SCALIA, writing for two Justices, also faulted
the plurality for its claim-by-claim approach. Id., at 544–
556 (opinion, joined by THOMAS, J., concurring in judg­
ment 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 regulations, id., at 548–549, JUSTICE SCALIA
objected to the plurality’s invocation of a presumption
against pre-emption to narrowly interpret §5(b), id., at
544, 545–547. Because Congress had expressed its intent
to pre-empt state law by enacting §5(b), the Court’s “re­
sponsibility [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
——————
1 JUSTICE SCALIA also criticized the plurality for announcing a new

rule that the enactment of an express pre-emption clause eliminates
any consideration of implied pre-emption. He explained that this new
rule created mischief because, when combined with the presumption
against pre-emption, it placed a heavy burden of exactitude on Con­
gress when it wishes to say anything about pre-emption. See Cipollone,
505 U. S., at 547–548.
6 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

ultimate source of the duty . . . but upon its proximate
application.” Id., at 553. 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 ciga­
rette 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 practi­
cally compels the manufacturers to engage in behavior
that Congress has barred the States from prescribing
directly”). JUSTICE SCALIA also seconded Justice Black­
mun’s concern that the lower courts would find the plural­
ity’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.
II
Sixteen years later, we must confront Cipollone to re­
solve the question presented in this case: whether respon­
dents’ 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]
persuaded” that the plurality’s construction of the §5(b)
was “ ‘fair.’ ” Ante, at 13–14. I disagree. The Court should
discard the Cipollone plurality’s ill-conceived predicate­
duty approach and replace it with JUSTICE SCALIA’s far
more workable and textually sound “proximate applica­
tion” test.
The majority does not assert that the Cipollone plurality
opinion is binding precedent, and rightly so. Because the
“plurality opinion . . . did not represent the views of a
majority of the Court, we are not bound by its reasoning.”
 Cite as: 555 U. S. ____ (2008) 7

THOMAS, J., dissenting

CTS Corp. v. Dynamics Corp. of America, 481 U. S. 69, 81
(1987) (footnote omitted). At most, Cipollone is a “point of
reference for further discussion.” Texas v. Brown, 460
U. S. 730, 737 (1983) (plurality opinion). But even if the
plurality opinion had some force beyond its mere persua­
sive value, it nevertheless should be abandoned. It is
unworkable; it has been overtaken by more recent deci­
sions of this Court; and it cannot be reconciled with a
commonsense reading of the text of §5(b).
A
As predicted by a majority of the Justices in Cipollone,
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
frustration with the Cipollone framework. See, e.g.,
Glassner v. R. J. Reynolds Tobacco Co., 223 F. 3d 343, 348
(CA6 2000) (“Applying the plurality opinion in Cipollone to
the Complaint in the present case is no easy task”); Hud
dleston v. R. J. Reynolds Tobacco 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 Liti
gation, 364 F. Supp. 2d 669, 681, n. 13 (ND Ohio 2005)
(“[I]n Cipollone, the Supreme Court . . . delivered a frac­
tured plurality opinion that is not easy to comprehend”);
Whiteley v. Philip Morris, Inc., 117 Cal. App. 4th 635, 670,
11 Cal. Rptr. 3d 807, 835–836 (2004) (“[Cipollone is] ‘diffi­
cult’ . . . due to the inherent contradiction at the core of the
case”); Mangini v. R. J. Reynolds Tobacco Co., 21 Cal.
Rptr. 2d 232, 244 (Cal. App. 1993) (“Cipollone draws no
8 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

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 incapable of implementation. “[T]he mischie­
vous consequences to litigants and courts alike from the
perpetuation of an unworkable rule are too great.” Swift
& Co. v. Wickham, 382 U. S. 111, 116 (1965); Federal
Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S.
___, ___ (2007) (slip op., at 20) (SCALIA, J., concurring in
part and concurring in judgment) (“Stare decisis consid­
erations carry little weight when an erroneous ‘governing
decisio[n]’ has created an ‘unworkable’ legal regime” (quot­
ing Payne v. Tennessee, 501 U. S. 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.
B
Furthermore, in the years since Cipollone 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 construc­
tion 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 (majority opinion) (“This presumption
reinforces the appropriateness of a narrow reading of §5”);
id., at 523 (plurality opinion) (“[W]e must . . . narrowly
construe the precise language 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 state­
ments”). Of course, as JUSTICE SCALIA explained, there
 Cite as: 555 U. S. ____ (2008) 9

THOMAS, J., dissenting

was nothing “fair” about imposing an artificially narrow
construction on the Labeling Act’s pre-emption provision.
See id., at 545 (explaining that the presumption against
pre-emption “dissolves once there is conclusive evidence of
intent to pre-empt in the express words of the statute
itself ”).
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
explained that the “task of statutory construction must in
the first instance focus on the plain wording of the [ex­
press 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 omitted). 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., 552 U. S. ___ (2008); Engine Mfrs. Assn. v. South
Coast Air Quality Management Dist., 541 U. S. 246 (2004);
Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341
(2001); United States v. Locke, 529 U. S. 89 (2000); Geier v.
American Honda Motor Co., 529 U. S. 861 (2000).
The Court has invoked the presumption sporadically
during this time frame. As the majority notes, ante, at 5,
Medtronic, Inc. v. Lohr, 518 U. S. 470 (1996), applied the
presumption against pre-emption in deciding that the
federal manufacturing and labeling requirements of the
Medical Device Amendments of 1976 (MDA) did not pre­
empt state common-law claims. Id., at 500–501. Like
Cipollone before it, Lohr produced a fractured decision
featuring three opinions. 518 U. S., at 474 (opinion of
STEVENS, J.), id., at 503 (BREYER, J., concurring in part
10 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

and concurring in judgment), id., at 509 (O’Connor, J.,
concurring in part and dissenting in part). And, like
Cipollone, Lohr’s approach to express pre-emption pre­
dates the Court’s recent jurisprudence on the topic. In
fact, this Court last year revisited the pre-emption provi­
sion of the MDA, 21 U. S. C. §360k(a)(1), and did not
employ any presumption against pre-emption. Riegel v.
Medtronic, Inc., 552 U. S. ___ (2008). See infra, at 11-13.2
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 presumption to determine that the regulations at
issue were not pre-empted. See Consolidated Cigar Corp.
v. Reilly, 218 F. 3d 30, 38–41 (2000). This Court, in over­
turning that judgment, declined to employ the presump­
tion in its construction of §5(b). See Reilly, 533 U. S., at
546–551. JUSTICE STEVENS highlighted this very point in
dissent, arguing that if the presumption had been faith­

——————
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 preemp­
tion arising under the MDA have struggled mightily with Lohr’s
language in an effort to discern its holding”); see also Martin v. Med
tronic, 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. . . . Although Justice Breyer’s concur­
rence 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 11–13.
 Cite as: 555 U. S. ____ (2008) 11

THOMAS, J., dissenting

fully applied, the result would have been different. Id., at
591–593.
The majority also relies on Bates v. Dow Agrosciences
LLC, 544 U. S. 431 (2005), where the presumption was
again mentioned, but only in dicta. As in Reilly, the pre­
sumption 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 “even if [respondent’s]
alternative [construction of the statute] were just as plau­
sible as our reading of the text”); see also id., at 457
(THOMAS, J., concurring in judgment in part and dissent­
ing in part) (agreeing that the case should be vacated and
remanded and reiterating that the “presumption does not
apply . . . 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 express pre-emption
cases since Cipollone have marked a retreat from reliance
on it to distort the statutory text.
If any doubt remained, it was eliminated last Term in
Riegel. 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 medi­
cal device given premarket approval by the Food and Drug
Administration.” 552 U. S., at ___ (slip op., at 1). 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 . . . to the device’ ”
under federal law. Id., at ___ (slip op., at 2) (quoting 21
U. S. C. §360k(a)(1)). The Court interpreted the statute
without reference to the presumption or any perceived
need to impose a narrow construction on the provision in
order to protect the police power of the States. Rather, the
12 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

Court simply construed the MDA in accordance with
ordinary 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 ___
(slip op., at ___) (opinion of GINSBURG, J.). The dissent
was adamant that “[f]ederal laws containing a preemption
clause do not automatically escape the presumption
against pre-emption.” Ibid. (slip op., at 2–3); id., at ___
(slip op., at 3) (“Where the text of a pre-emption clause is
open to more than one plausible reading, courts ordinarily
‘accept the reading that disfavors pre-emption’ ” (quoting
Bates, supra, at 449)). In accordance with the presump­
tion, the dissent would have found the state-law claims
under review to fall beyond the reach of the MDA’s ex­
press pre-emption provision. 552 U. S., at ___ (slip op., at
___); see also id., at ___, n. 8 (slip op., at 6, n. 8); id., at ___,
n. 9 (slip op., at 7, n. 9) (rejecting the majority’s construc­
tion of §360(d) because “the presumption against pre­
emption [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 necessarily a rejection of any role for the
presumption in construing the statute.
JUSTICE STEVENS also declined to invoke the presump­
tion in his opinion. Id., at ___ (opinion concurring in part
and concurring in judgment). In his view, the “signifi­
cance of the pre-emption provision in the [MDA] was not
fully appreciated until many years after it was enacted”
and, therefore, it is “a statute whose text and general
objective cover territory not actually envisioned by its
authors.” Id., at ___ (slip op., at 1). 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 presumption to bend the text
of the statute to meet the perceived purpose of Congress.
 Cite as: 555 U. S. ____ (2008) 13

THOMAS, J., dissenting

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 gov­
erned.’ ” 552 U. S., at ___ (slip op., at 1) (quoting Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75, 79–80
(1998)).
In light of Riegel, 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 willing to
unreasonably interpret expressly pre-emptive federal laws
in the name of “ ‘congressional purpose,’ ” ante, at 14, or
because “Congress has legislated in a field traditionally
occupied by the States,” ante, at 5. The text of the statute
must control.
Riegel also undermined Cipollone in an even more fun­
damental 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 ___ (slip
op., at 11) (“Absent other indication, reference to a State’s
‘requirements’ includes its common-law duties . . . . In­
deed, one would think that tort law, applied by juries
under a negligence or strict-liability standard, is less
deserving of preservation [than regulatory legislation]”).
Justice Blackmun’s contrary interpretation 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 “re­
quirements” relied on in Justice Blackmun’s concurring
opinion, Cipollone’s approach to express pre-emption is
nothing more than “a remnant of abandoned doctrine.”
14 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833, 855 (1992).
C
The Cipollone plurality’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 Com­
monwealth’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 Massachusetts remained free to enact “generally
applicable zoning 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.
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 analyzing whether the regulations enacted by the Mas­
sachusetts 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 predicate 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 “predicate duty” test.
See 533 U. S., at 546–551. Instead, the Court disagreed
with “the Attorney General’s narrow construction” 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.
 Cite as: 555 U. S. ____ (2008) 15

THOMAS, J., dissenting

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 methods of competition and unfair or de­
ceptive acts or practices in the conduct of any trade or
commerce are declared unlawful”), and Cipollone, supra,
at 528 (explaining that the “predicate” of the plaintiff’s
fraudulent misrepresentation claim was “a state-law duty
not to make false statements of material fact or to conceal
such facts”). Faithful application of the Cipollone plurality
opinion, therefore, would have required the Court in Reilly
to uphold the regulations. Indeed, JUSTICE STEVENS
argued as much in his dissent. 533 U. S., at 597 (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 regulation of the location of signs advertising
cigarettes”).
And yet, the majority today finds that Reilly and Cipol
lone are perfectly compatible. It contends that, although
the regulations in question in Reilly “derived from a gen­
eral deceptive practices statute like the one at issue in this
case,” they were pre-empted because they “targeted adver­
tising that tended to promote tobacco use by children
instead of prohibiting false or misleading statements.”
Ante, at 12. According to the majority, that legal duty
contrasts with the regulations here, as “[t]he MUTPA says
16 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

nothing about either ‘smoking’ or ‘health.’ ” Ante, at 13;
see also ante, at 10. But the Cipollone plurality expressly
rejected any distinction 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 underly­
ing the failure-to-warn 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 judg­
ment 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, Reilly is better understood as establishing
that even a general duty can impose requirements or
prohibitions based on smoking and health. Reilly weak­
ened the force of the Cipollone plurality’s “predicate duty”
approach to the pre-emptive effect of §5(b) and cast doubt
on its continuing utility.
D
Finally, the Cipollone plurality’s approach should be
discarded because its “predicate duty” approach is unper­
suasive 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 prohi­
bition against minimizing the health risks associated with
smoking. 505 U. S., at 527. The Court today reaffirms
this view. Ante, at 10; see also ante, at 13 (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, supra, at 553 (opinion of SCALIA,
J.). 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
 Cite as: 555 U. S. ____ (2008) 17

THOMAS, J., dissenting

for the latter was the Cipollone plurality content to ignore
the context 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, 505 U. S., at 543 (Blackmun, J., concurring in
part, concurring in judgment in part, and dissenting in
part); id., at 553–554 (opinion of SCALIA, J.), and it re­
mains equally unconvincing today.
It is therefore unsurprising that the Court’s defense of
the plurality’s confusing test is confined to one sentence
and a footnote. See ante, at 13–14 (“While we again ac­
knowledge that our analysis of these claims may lack
‘theoretical elegance,’ we remain persuaded that it repre­
sents ‘a fair understanding of congressional purpose’ ”
(quoting Cipollone, supra, at 529–530, n. 27)); ante, at 10,
n. 7. The majority instead argues that this approach “fails
to explain why Congress would . . . permi[t] cigarette
manufacturers to engage in fraudulent advertising.” Ante,
at 10, n. 7. But no explanation is necessary; the text
speaks for itself. Congress has pre-empted only those
claims that would impose “requirement[s] 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 ciga­
rette of Major League Baseball,” state-law claims arising
from that wrongful behavior would not be pre-empted.
Furthermore, contrary to the majority’s policy argu­
ments, faithful application of the statutory language does
not authorize fraudulent advertising with respect to smok­
ing and health.3 Any misleading promotional statements
——————
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 10, n. 8, there is no basis
to contend that the text of the Labeling Act permits fraudulent
18 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

for cigarettes remain subject to federal regulatory over­
sight under the Labeling Act. See §1336. The relevant
question thus is not whether “petitioners will be prohib­
ited from selling as ‘light’ or ‘low tar’ only those cigarettes
that are not actually light and do not actually deliver less
tar and nicotine.” Ante, at 12, 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
Labeling Act, Congress “establish[ed] a comprehensive
Federal Program to deal with cigarette labeling and ad­
vertising,” 15 U. S. C. §1331, so that “commerce and the
national economy may . . . not [be] impeded by diverse,
nonuniform, and confusing cigarette labeling and advertis­
ing regulations with respect to any relationship between
smoking and health,” §1331(2)(B).4 The majority’s dis­
torted interpretation of §5(b) defeats this express congres­
sional purpose, opening the door to an untold number of
deceptive-practices lawsuits across the country. The
question whether marketing a light cigarette is “ ‘misrep­
resentative’ ” in light of compensatory behavior “would
almost certainly be answered differently from State to
State.” Cipollone, supra, 505 U. S., at 553 (opinion of

——————
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 regulating deceptive advertising and marketing of cigarettes.
Ante, at 8, 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 pur­
pose in enacting the Labeling Act and the plain meaning of the Act’s
express pre-emption provision.
 Cite as: 555 U. S. ____ (2008) 19

THOMAS, J., dissenting

SCALIA, J.). This will inevitably result in the nonuniform
imposition of liability for the marketing of light and/or
low-tar cigarettes—the precise problem that Congress
intended §5(b) to remedy.
In light of these serious flaws in the majority’s ap­
proach, even if the Cipollone plurality opinion were bind­
ing precedent, the Court “should not hesitate to allow our
precedent to yield to the true meaning of an Act of Con­
gress when our statutory precedent is ‘unworkable’ or
‘badly reasoned.’ ” Clark v. Martinez, 543 U. S. 371, 402
(2005) (THOMAS, J., dissenting) (quoting Holder v. Hall,
512 U. S. 874, 936 (1994) (THOMAS, J., concurring in
judgment), in turn quoting Payne, 501 U. S., at 827 (some
internal quotation marks omitted)). Where, as here, there
is “confusion following a splintered decision,” that “is itself
a reason for reexamining that decision.” Nichols v. United
States, 511 U. S. 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, 328 U. S.
61, 69–70 (1946).5
III
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, supra, at 554 (SCALIA, J., concur­
ring in judgment in part and dissenting in part), respon­
dents’ state-law claims are expressly pre-empted by §5(b)

——————
5 The United States, in its amicus brief and at oral argument, con­

spicuously 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 I do not reach because of my resolution of the ques­
tion on express pre-emption.
20 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

of the Labeling Act. Respondents, longtime smokers of
Marlboro Lights, claim that they have suffered an injury
as a result of petitioners’ decision to advertise these ciga­
rettes as “light” and/or “low-tar and low nicotine products.”
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
allege that they were misled into thinking that they were
gaining a health advantage by smoking the light ciga­
rettes, ibid., and, as a result, petitioners’ conduct was an
“unfair or deceptive act or practice” under the MUTPA.
Me. Rev. Stat. Ann., Tit. 5, §207; 436 F. Supp. 2d, at 133.
Respondents’ claims seek to impose liability on petition­
ers 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 ad­
vertised—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, 2005 ME 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 mislead consumers acting rea­
sonably under the circumstances” (emphasis added)).
Therefore, with this suit, respondents seek to require the
cigarette manufacturers to provide additional warnings
about compensatory behavior, or to prohibit them from
selling these products with the “light” or “low-tar” descrip­
tors. This is exactly the type of lawsuit that is pre-empted
by the Labeling Act. Cf. Rowe, 552 U. S., at ___ (slip op.,
 Cite as: 555 U. S. ____ (2008) 21

THOMAS, J., dissenting

at 6) (finding pre-emption of a Maine regulation of ship­
ping of tobacco products where “[t]he Maine law . . . pro­
duces the very effect that the federal law sought to avoid”).
Because the proper test for pre-emption is to look at the
factual basis of a complaint to determine if a claim im­
poses 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
MUTPA.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”
cigarettes. See ante, at 11, n. 9. If the claims arise from
identical conduct, the claims impose the same requirement
or prohibition with respect to that conduct. And when
that allegedly wrongful conduct involves misleading
statements about the health effects of smoking a particu­
lar brand of cigarette, the liability and resulting require­
ment or prohibition are, by definition, based on smoking
and health.
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
——————
6 The majority’s observation that no warning-neutralization claim is

at issue in this case, ante, at 11 n. 9, misses the point. The principal
weakness 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 11, n. 8, was no more specific to smoking and
health than the predicate duty underlying the fraud claim, see Cipol
lone, 505 U. S., at 552–553 (opinion of SCALIA, J.) (“Each duty tran­
scends 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 16. Thus, the products-liability and the fraud claims must
stand or fall together. The majority’s refusal to address the logical
inconsistency of its approach remains as glaring today as it was in
Cipollone.
22 ALTRIA GROUP, INC. v. GOOD

THOMAS, J., dissenting

based on the effect of smoking on their health; rather,
respondents 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 requirement 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 respondents have chosen to measure their damages.
No matter 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 cigarettes 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) (West
2002). And a court-crafted injunction prohibiting petition­
ers 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 requirement 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.
IV
The Court today elects to convert the Cipollone plural­
ity opinion into binding law, notwithstanding its weak­
ened doctrinal foundation, its atextual construction of the
statute, and the lower courts’ inability to apply its meth­
odology. The resulting confusion about the nature of a
claim’s “predicate duty” and inevitable disagreement in
 Cite as: 555 U. S. ____ (2008) 23

THOMAS, J., dissenting

the lower courts as to what type of representations are
“material” and “misleading” will have the perverse effect
of increasing the nonuniformity 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.