(Slip Opinion) OCTOBER TERM, 2007 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
ROWE, ATTORNEY GENERAL OF MAINE v. NEW
HAMPSHIRE MOTOR TRANSPORT ASSOCIATION
ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIRST CIRCUIT
No. 06–457. Argued November 28, 2007—Decided February 20, 2008
Although a provision of the Federal Aviation Administration Authori
zation Act of 1994 forbids States to “enact or enforce a law . . . related
to a price, route, or service of any motor carrier,” 49 U. S. C.
§14501(c)(1), see also §41713(b)(4)(a), Maine adopted a law which, in
ter alia, (1) specifies that a state-licensed tobacco shipper must utilize
a delivery company that provides a recipient-verification service that
confirms the buyer is of legal age, and (2) adds, in prohibiting unli
censed tobacco shipments into the State, that a person is deemed to
know that a package contains tobacco if it is marked as originating
from a Maine-licensed tobacco retailer or if it is received from some
one whose name appears on an official list of un-licensed tobacco re
tailers distributed to package-delivery companies. In respondent car
rier associations’ suit, the District Court and the First Circuit agreed
with respondents that Maine’s recipient-verification and deemed-to
know provisions were pre-empted by federal law.
Held: Federal law pre-empts the two state-law provisions at issue.
Pp. 3–11.
(a) In interpreting the 1994 federal Act, the Court follows Morales
v. Trans World Airlines, Inc., 504 U. S. 374, 378, in which it inter
preted similar language in the pre-emption provision of the Airline
Deregulation Act of 1978. Voiding state enforcement of consumer
fraud statutes against deceptive airline-fare advertisements, Morales
determined, inter alia, that the federal Act pre-empted state actions
having a “connection with” carrier “ ‘ rates, routes, or services,’ ” id.,
at 384; that pre-emption may occur even if a state law has only an
2 ROWE v. NEW HAMPSHIRE MOTOR TRANSP. ASSN.
Syllabus
indirect effect on rates, routes, or services, id., at 386; and that pre
emption occurs at least where state laws have a “significant impact”
related to Congress’ deregulatory and pre-emption-related objectives,
id., at 390. The Court also emphasized that the airline Act’s over-
arching goal of helping assure that transportation rates, routes, and
services reflects maximum reliance on competitive market forces, id.,
at 378, and stated that federal law might not pre-empt state laws af
fecting fares only tenuously, remotely, or peripherally, but did not
say where, or how, it would draw the line on “borderline” questions,
id., at 390. Pp. 3–5.
(b) In light of Morales, the Maine laws at issue are pre-empted. In
regulating delivery service procedures, the recipient-verification pro
vision focuses on trucking and similar services, thereby creating a di
rect “connection with” motor carrier services. See 504 U. S., at 384.
It also has a “significant” and adverse “impact” in respect to the fed
eral Act’s ability to achieve its pre-emption-related objectives, id., at
390, because it requires carriers to offer a system of services that the
market does not now provide (and which the carriers would prefer
not to offer). Even were that not so, the law would freeze into place
services that carriers might prefer to discontinue in the future,
thereby producing the very effect the federal law sought to avoid, i.e.,
a State’s direct substitution of its own governmental commands for
“competitive market forces” in determining (to a significant degree)
the services that motor carriers will provide. Id., at 378. Maine’s
deemed-to-know provision applies yet more directly to motor carrier
services by creating a conclusive presumption of carrier knowledge
that a shipment contains tobacco in the specified circumstances.
That presumption means that the law imposes civil liability upon the
carrier, not simply for its knowing transport of (unlicensed) tobacco,
but for the carrier’s failure sufficiently to examine every package. The
provision thus requires the carrier to check each shipment for certain
markings and to compare it against the list of proscribed shippers,
thereby directly regulating a significant aspect of the motor carrier’s
package pick-up and delivery service and creating the kind of state-
mandated regulation that the federal Act pre-empts. Pp. 5–7.
(c) Maine’s primary arguments for an exception from pre
emption—that its laws help prevent minors from obtaining cigarettes
and thereby protect its citizens’ public health—are unavailing. The
federal law does not create a public health exception, but, to the con
trary, explicitly lists a set of exceptions that do not include public
health. See, e.g., §§14501(c)(2) to (c)(3). Nor does its legislative his
tory mention specific state enforcement methods or suggest that Con
gress made a firm judgment about, or even focused upon, the issue
here. Maine’s inability to find significant support for such an excep
Cite as: 552 U. S. ____ (2008) 3
Syllabus
tion is not surprising, given the number of States through which car
riers travel, the number of products carried, the variety of potential
adverse public health effects, the many different kinds of regulatory
rules potentially available, and the difficulty of finding a legal crite
rion for separating permissible from impermissible public-health
oriented regulations. Although federal law does not generally pre
empt state public health regulation, the state laws at issue are not
general, their impact on carrier rates, routes, or services is signifi
cant, and their connection with trucking is not tenuous, remote, or
peripheral: They aim directly at the carriage of goods, a commercial
field where carriage by commercial motor vehicles plays a major role.
From the perspective of pre-emption, this case is no more “borderline”
than was Morales. Maine argues that to set aside its regulations will
seriously harm its efforts to prevent minors from obtaining ciga
rettes, but the Solicitor General points to other legislative alterna
tives available to the State. Regardless, given Morales’ holding that
federal law pre-empts state consumer-protection laws, federal law
must also pre-empt Maine’s efforts directly to regulate carrier ser
vices. Pp. 7–11.
448 F. 3d 66, affirmed.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, SOUTER, THOMAS, GINSBURG, and ALITO,
JJ., joined, and in which SCALIA, J., joined in part. GINSBURG, J., filed a
concurring opinion. SCALIA, J., filed an opinion concurring in part.
Cite as: 552 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
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–457
_________________
G. STEVEN ROWE, ATTORNEY GENERAL OF MAINE,
PETITIONER v. NEW HAMPSHIRE MOTOR
TRANSPORT ASSOCIATION ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[February 20, 2008]
JUSTICE BREYER delivered the opinion of the Court.
We here consider whether a federal statute that prohib
its States from enacting any law “related to” a motor
carrier “price, route, or service” pre-empts two provisions
of a Maine tobacco law, which regulate the delivery of
tobacco to customers within the State. 49 U. S. C.
§§14501(c)(1), 41713(b)(4)(A); see Me. Rev. Stat. Ann., Tit.
22, §§1555–C(3)(C), 1555–D (second sentence) (2004). We
hold that the federal law pre-empts both provisions.
I
A
In 1978, Congress “determin[ed] that ‘maximum reli
ance on competitive market forces’ ” would favor lower
airline fares and better airline service, and it enacted the
Airline Deregulation Act. Morales v. Trans World Air
lines, Inc., 504 U. S. 374, 378 (1992) (quoting 49 U. S. C.
App. §1302(a)(4) (1988 ed.)); see 92 Stat. 1705. In order to
“ensure that the States would not undo federal deregula
tion with regulation of their own,” that Act “included a
pre-emption provision” that said “no State . . . shall enact
2 ROWE v. NEW HAMPSHIRE MOTOR TRANSP. ASSN.
Opinion of the Court
or enforce any law . . . relating to rates, routes, or services
of any air carrier.” Morales, supra, at 378; 49 U. S. C.
App. §1305(a)(1) (1988 ed.).
In 1980, Congress deregulated trucking. See Motor
Carrier Act of 1980, 94 Stat. 793. And a little over a dec
ade later, in 1994, Congress similarly sought to pre-empt
state trucking regulation. See Federal Aviation Admini
stration Authorization Act of 1994, 108 Stat. 1605–1606;
see also ICC Termination Act of 1995, 109 Stat. 899. In
doing so, it borrowed language from the Airline Deregula
tion Act of 1978 and wrote into its 1994 law language that
says: “[A] State . . . may not enact or enforce a law . . .
related to a price, route, or service of any motor carrier . . .
with respect to the transportation of property.” 49 U. S. C.
§14501(c)(1); see also §41713(b)(4)(A) (similar provision for
combined motor-air carriers).
The State of Maine subsequently adopted An Act To
Regulate the Delivery and Sales of Tobacco Products and
To Prevent the Sale of Tobacco Products to Minors, 2003
Me. Acts p. 1089, two sections of which are relevant here.
The first section forbids anyone other than a Maine-
licensed tobacco retailer to accept an order for delivery of
tobacco. Me. Rev. Stat. Ann., Tit. 22, §1555–C(1). It then
adds that, when a licensed retailer accepts an order and
ships tobacco, the retailer must “utilize a delivery service”
that provides a special kind of recipient-verification ser
vice. §1555–C(3)(C). The delivery service must make
certain that (1) the person who bought the tobacco is the
person to whom the package is addressed; (2) the person to
whom the package is addressed is of legal age to purchase
tobacco; (3) the person to whom the package is addressed
has himself or herself signed for the package; and (4) the
person to whom the package is addressed, if under the age
of 27, has produced a valid government-issued photo
identification with proof of age. Ibid. Violations are pun
ishable by civil penalties. See §§1555–C(3)(E) to C(3)(F)
Cite as: 552 U. S. ____ (2008) 3
Opinion of the Court
(first offense up to $1,500; subsequent offenses up to
$5,000).
The second section forbids any person “knowingly” to
“transport” a “tobacco product” to “a person” in Maine
unless either the sender or the receiver has a Maine li
cense. §1555–D. It then adds that a “person is deemed to
know that a package contains a tobacco product” (1) if the
package is marked as containing tobacco and displays the
name and license number of a Maine-licensed tobacco
retailer; or (2) if the person receives the package from
someone whose name appears on a list of un-licensed
tobacco retailers that Maine’s Attorney General distrib
utes to various package-delivery companies. Ibid. (em
phasis added); see also §§1555–C(3)(B), 1555–D(1). Viola
tions are again punishable by civil penalties. §1555–D(2)
(up to $1,500 per violation against violator and/or viola
tor’s employer).
B
Respondents, several transport carrier associations,
brought this lawsuit in federal court, claiming that federal
law pre-empts several sections of Maine’s statute. The
District Court held (among other things) that federal law
pre-empts the portions of the two sections we have de
scribed, namely the “recipient-verification” provision
(§1555–C(3)(C)) and the “deemed to know” provision (the
second sentence of §1555–D). See 377 F. Supp. 2d 197,
220 (Me. 2005). On appeal, the Court of Appeals for the
First Circuit agreed that federal law pre-empted the two
provisions. 448 F. 3d 66, 82 (2006). We granted certiorari
to review these determinations. 551 U. S. ___ (2007).
II
A
In Morales, this Court interpreted the pre-emption
provision in the Airline Deregulation Act of 1978. See 504
4 ROWE v. NEW HAMPSHIRE MOTOR TRANSP. ASSN.
Opinion of the Court
U. S., at 378. And we follow Morales in interpreting simi
lar language in the 1994 Act before us here. We have said
that “when judicial interpretations have settled the mean
ing of an existing statutory provision, repetition of the
same language in a new statute indicates, as a general
matter, the intent to incorporate its judicial interpreta
tions as well.” Merrill Lynch, Pierce, Fenner & Smith Inc.
v. Dabit, 547 U. S. 71, 85 (2006) (internal quotation marks
and alterations omitted). Here, the Congress that wrote
the language before us copied the language of the air-
carrier pre-emption provision of the Airline Deregulation
Act of 1978. Compare 49 U. S. C. §§14501(c)(1),
41713(b)(4)(A), with 49 U. S. C. App. §1305(a)(1) (1988
ed.); see also H. R. Conf. Rep. No. 103–677, pp. 82–83, 85
(1994) (hereinafter H. R. Conf. Rep.). And it did so fully
aware of this Court’s interpretation of that language as set
forth in Morales. See H. R. Conf. Rep., at 83 (motor carri
ers will enjoy “the identical intrastate preemption of
prices, routes and services as that originally contained in”
the Airline Deregulation Act); ibid. (expressing agreement
with “the broad preemption interpretation adopted by the
United States Supreme Court in Morales”); id., at 85.
In Morales, the Court determined: (1) that “[s]tate en
forcement actions having a connection with, or reference
to” carrier “ ‘rates, routes, or services’ are pre-empted,” 504
U. S., at 384 (emphasis added); (2) that such pre-emption
may occur even if a state law’s effect on rates, routes or
services “is only indirect,” id., at 386 (internal quotation
marks omitted); (3) that, in respect to pre-emption, it
makes no difference whether a state law is “consistent” or
“inconsistent” with federal regulation, id., at 386–387
(emphasis deleted); and (4) that pre-emption occurs at
least where state laws have a “significant impact” related
to Congress’ deregulatory and pre-emption-related objec
tives, id., at 390. The Court described Congress’ overarch
ing goal as helping assure transportation rates, routes,
Cite as: 552 U. S. ____ (2008) 5
Opinion of the Court
and services that reflect “maximum reliance on competi
tive market forces,” thereby stimulating “efficiency, inno
vation, and low prices,” as well as “variety” and “quality.”
Id., at 378 (internal quotation marks omitted). Morales
held that, given these principles, federal law pre-empts
States from enforcing their consumer-fraud statutes
against deceptive airline-fare advertisements. Id., at 391.
See American Airlines, Inc. v. Wolens, 513 U. S. 219, 226–
228 (1995) (federal law pre-empts application of a State’s
general consumer-protection statute to an airline’s fre
quent flyer program).
Finally, Morales said that federal law might not pre
empt state laws that affect fares in only a “tenuous, re
mote, or peripheral . . . manner,” such as state laws for
bidding gambling. 504 U. S., at 390 (internal quotation
marks omitted). But the Court did not say where, or how,
“it would be appropriate to draw the line,” for the state
law before it did not “present a borderline question.” Ibid.
(internal quotation marks omitted); see also Wolens, su
pra, at 226.
B
In light of Morales, we find that federal law pre-empts
the Maine laws at issue here. Section 1555–C(3)(C) of the
Maine statute forbids licensed tobacco retailers to employ
a “delivery service” unless that service follows particular
delivery procedures. Me. Rev. Stat. Ann., Tit. 22, §1555–
C(3)(C). In doing so, it focuses on trucking and other
motor carrier services (which make up a substantial por
tion of all “delivery services,” §1551(1–C)), thereby creat
ing a direct “connection with” motor carrier services. See
Morales, 504 U. S., at 384.
At the same time, the provision has a “significant” and
adverse “impact” in respect to the federal Act’s ability to
achieve its pre-emption-related objectives. Id., at 390.
The Solicitor General and the carrier associations claim
6 ROWE v. NEW HAMPSHIRE MOTOR TRANSP. ASSN.
Opinion of the Court
(and Maine does not deny) that the law will require carri
ers to offer a system of services that the market does not
now provide (and which the carriers would prefer not to
offer). And even were that not so, the law would freeze
into place services that carriers might prefer to discon
tinue in the future. The Maine law thereby produces the
very effect that the federal law sought to avoid, namely, a
State’s direct substitution of its own governmental com
mands for “competitive market forces” in determining (to a
significant degree) the services that motor carriers will
provide. Id., at 378 (internal quotation marks omitted).
We concede that the regulation here is less “direct” than
it might be, for it tells shippers what to choose rather than
carriers what to do. Nonetheless, the effect of the regula
tion is that carriers will have to offer tobacco delivery
services that differ significantly from those that, in the
absence of the regulation, the market might dictate. And
that being so, “treating sales restrictions and purchase
restrictions differently for pre-emption purposes would
make no sense.” Engine Mfrs. Assn. v. South Coast Air
Quality Management Dist., 541 U. S. 246, 255 (2004). If
federal law pre-empts state efforts to regulate, and conse
quently to affect, the advertising about carrier rates and
services at issue in Morales, it must pre-empt Maine’s
efforts to regulate carrier delivery services themselves.
Section 1555–D’s “deemed to know” provision applies
yet more directly to motor carrier services. The provision
creates a conclusive presumption of carrier knowledge
that a shipment contains tobacco when it is marked as
originating from a Maine-licensed tobacco retailer or is
sent by anyone Maine has specifically identified as an
unlicensed tobacco retailer. That presumption means that
the Maine law imposes civil liability upon the carrier, not
simply for its knowing transport of (unlicensed) tobacco,
but for the carrier’s failure sufficiently to examine every
package. The provision thus requires the carrier to check
Cite as: 552 U. S. ____ (2008) 7
Opinion of the Court
each shipment for certain markings and to compare it
against the Maine attorney general’s list of proscribed
shippers. And it thereby directly regulates a significant
aspect of the motor carrier’s package pick-up and delivery
service. In this way it creates the kind of state-mandated
regulation that the federal Act pre-empts.
Maine replies that the regulation will impose no signifi
cant additional costs upon carriers. But even were that so
(and the carriers deny it), Maine’s reply is off the mark.
As with the recipient-verification provision, the “deemed
to know” provision would freeze in place and immunize
from competition a service-related system that carriers do
not (or in the future might not) wish to provide. Supra, at
5–6. To allow Maine to insist that the carriers provide a
special checking system would allow other States to do the
same. And to interpret the federal law to permit these,
and similar, state requirements could easily lead to a
patchwork of state service-determining laws, rules, and
regulations. That state regulatory patchwork is inconsis
tent with Congress’ major legislative effort to leave such
decisions, where federally unregulated, to the competitive
marketplace. See H. R. Conf. Rep., at 87. If federal law
pre-empts state regulation of the details of an air carrier’s
frequent flyer program, a program that primarily promotes
carriage, see Wolens, supra, at 226–228, it must pre-empt
state regulation of the essential details of a motor carrier’s
system for picking-up, sorting, and carrying goods—
essential details of the carriage itself.
C
Maine’s primary arguments focus upon the reason why
it has enacted the provisions in question. Maine argues
for an exception from pre-emption on the ground that its
laws help it prevent minors from obtaining cigarettes. In
Maine’s view, federal law does not pre-empt a State’s
efforts to protect its citizens’ public health, particularly
8 ROWE v. NEW HAMPSHIRE MOTOR TRANSP. ASSN.
Opinion of the Court
when those laws regulate so dangerous an activity as
underage smoking.
Despite the importance of the public health objective, we
cannot agree with Maine that the federal law creates an
exception on that basis, exempting state laws that it
would otherwise pre-empt. The Act says nothing about a
public health exception. To the contrary, it explicitly lists
a set of exceptions (governing motor vehicle safety, certain
local route controls, and the like), but the list says nothing
about public health. See 49 U. S. C. §§14501(c)(2) to (c)(3);
see also §41713(b)(4)(B). Maine suggests that the provi
sion’s history indicates that Congress’ primary concern
was not with the sort of law it has enacted, but instead
with state “economic” regulation. See, e.g., H. R. Conf.
Rep., at 88; see also Columbus v. Ours Garage & Wrecker
Service, Inc., 536 U. S. 424, 440 (2002). But it is fre
quently difficult to distinguish between a State’s “eco
nomic”-related and “health”-related motivations, see infra,
at 9, and, indeed, the parties vigorously dispute Maine’s
actual motivation for the laws at issue here. Conse
quently, it is not surprising that Congress declined to
insert the term “economic” into the operative language
now before us, despite having at one time considered doing
so. See S. Rep. No. 95–631, p. 171 (1978) (reprinting
Senate bill).
Maine’s argument for an implied “public health” or
“tobacco” exception to federal pre-emption rests largely
upon (1) legislative history containing a list of nine States,
with laws resembling Maine’s, that Congress thought did
not regulate “intrastate prices, routes and services of
motor carriers,” see H. R. Conf. Rep., at 86; and (2) the
Synar Amendment, a law that denies States federal funds
unless they forbid sales of tobacco to minors, see 42
U. S. C. §§300x–26(a)(1), (b)(1). The legislative history,
however, does not suggest Congress made a firm judgment
about, or even focused upon, the issue now before us. And
Cite as: 552 U. S. ____ (2008) 9
Opinion of the Court
the Synar Amendment nowhere mentions the particular
state enforcement method here at issue; indeed, it does not
mention specific state enforcement methods at all.
Maine’s inability to find significant support for some
kind of “public health” exception is not surprising. “Public
health” does not define itself. Many products create “pub
lic health” risks of differing kind and degree. To accept
Maine’s justification in respect to a rule regulating ser
vices would legitimate rules regulating routes or rates for
similar public health reasons. And to allow Maine directly
to regulate carrier services would permit other States to
do the same. Given the number of States through which
carriers travel, the number of products, the variety of
potential adverse public health effects, the many different
kinds of regulatory rules potentially available, and the
difficulty of finding a legal criterion for separating permis
sible from impermissible public-health-oriented regula
tions, Congress is unlikely to have intended an implicit
general “public health” exception broad enough to cover
even the shipments at issue here.
This is not to say that this federal law generally pre
empts state public health regulation: for instance, state
regulation that broadly prohibits certain forms of conduct
and affects, say, truckdrivers, only in their capacity as
members of the public (e.g., a prohibition on smoking in
certain public places). We have said that federal law does
not pre-empt state laws that affect rates, routes, or ser
vices in “too tenuous, remote, or peripheral a manner.”
Morales, 504 U. S., at 390 (internal quotation marks omit
ted). And we have written that the state laws whose
“effect” is “forbidden” under federal law are those with a
“significant impact” on carrier rates, routes, or services.
Id., at 388, 390 (emphasis added).
In this case, the state law is not general, it does not
affect truckers solely in their capacity as members of the
general public, the impact is significant, and the connec
10 ROWE v. NEW HAMPSHIRE MOTOR TRANSP. ASSN.
Opinion of the Court
tion with trucking is not tenuous, remote, or peripheral.
The state statutes aim directly at the carriage of goods, a
commercial field where carriage by commercial motor
vehicles plays a major role. The state statutes require
motor carrier operators to perform certain services,
thereby limiting their ability to provide incompatible
alternative services; and they do so simply because the
State seeks to enlist the motor carrier operators as allies
in its enforcement efforts. Given these circumstances,
from the perspective of pre-emption, this case is no more
“borderline” than was Morales. Id., at 390 (internal quota
tion marks omitted); see also Wolens, 513 U. S., at 226.
Maine adds that it possesses legal authority to prevent
any tobacco shipments from entering into or moving
within the State, and that the broader authority must
encompass the narrower authority to regulate the manner
of tobacco shipments. But even assuming purely for ar
gument’s sake that Maine possesses the broader authority,
its conclusion does not follow. To accept that conclusion
would permit Maine to regulate carrier routes, carrier
rates, and carrier services, all on the ground that such
regulation would not restrict carriage of the goods as
seriously as would a total ban on shipments. And it con
sequently would severely undermine the effectiveness of
Congress’ pre-emptive provision. Indeed, it would create
the very exception that we have just rejected, extending
that exception to all other products a State might ban. We
have explained why we do not believe Congress intended
that result. Supra, at 7–10.
Finally, Maine says that to set aside its regulations will
seriously harm its efforts to prevent cigarettes from falling
into the hands of minors. The Solicitor General denies
that this is so. He suggests that Maine, like other States,
can prohibit all persons from providing tobacco products to
minors (as it already has, see Me. Rev. Stat. Ann., Tit. 22,
§1555–B(2) (Supp. 2007)); that it can ban all non-face-to
Cite as: 552 U. S. ____ (2008) 11
Opinion of the Court
face sales of tobacco; that it might pass other laws of
general (non-carrier-specific) applicability; and that it can,
if necessary, seek appropriate federal regulation (see, e.g.,
H. R. 4081, 110th Cong., 1st Sess. (2007) (proposed bill
regulating tobacco shipment); H. R. 4128, 110th Cong., 1st
Sess., §§1411–1416, pp. 577–583 (2007) (proposed bill
providing criminal penalties for trafficking in contraband
tobacco)). Regardless, given Morales, where the Court
held that federal law pre-empts state consumer-protection
laws, we find that federal law must also pre-empt Maine’s
efforts directly to regulate carrier services.
For these reasons, the judgment of the Court of Appeals
is affirmed.
It is so ordered.
Cite as: 552 U. S. ____ (2008) 1
GINSBURG, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–457
_________________
G. STEVEN ROWE, ATTORNEY GENERAL OF MAINE,
PETITIONER v. NEW HAMPSHIRE MOTOR
TRANSPORT ASSOCIATION ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[February 20, 2008]
JUSTICE GINSBURG, concurring.
Today’s decision declares key portions of Maine’s To
bacco Delivery Law incompatible with the Federal Avia
tion Administration Authorization Act of 1994 (FAAAA).
The breadth of FAAAA’s preemption language, 49 U. S. C.
§§14501(c)(1) and 41713(b)(4)(A), coupled with our deci
sions closely in point, Morales v. Trans World Airlines,
Inc., 504 U. S. 374 (1992), and American Airlines, Inc. v.
Wolens, 513 U. S. 219 (1995), impel that conclusion. I
write separately to emphasize the large regulatory gap left
by an application of the FAAAA perhaps overlooked by
Congress, and the urgent need for the National Legisla
ture to fill that gap.
Tobacco use by children and adolescents, we have recog
nized, may be “the single most significant threat to public
health in the United States.” FDA v. Brown & Williamson
Tobacco Corp., 529 U. S. 120, 161 (2000). But no compre
hensive federal law currently exists to prevent tobacco
sellers from exploiting the underage market. Instead,
Congress has encouraged state efforts. Congress has done
so by providing funding incentives for the States to pass
legislation making it unlawful to “sell or distribute any
[tobacco] product to any individual under the age of 18.”
Synar Amendment, 106 Stat. 394, 42 U. S. C. §300x–
2 ROWE v. NEW HAMPSHIRE MOTOR TRANSP. ASSN.
GINSBURG, J., concurring
26(a)(1). See Lorillard Tobacco Co. v. Reilly, 533 U. S.
525, 552, 571 (2001).
State measures to prevent youth access to tobacco,
however, are increasingly thwarted by the ease with which
tobacco products can be purchased through the Internet.
“As cyberspace acts as a risk-free zone where minors can
anonymously purchase tobacco, unrestricted online to
bacco sales create a major barrier to comprehensive youth
tobacco control.” Brief for Tobacco Control Legal Consor
tium et al. as Amici Curiae 10 (footnote omitted). See also
Brief for California et al. as Amici Curiae 9 (“Illegal Inter
net tobacco sales have reached epidemic proportions.”).
Maine and its amici maintain that, to guard against
delivery of tobacco products to children, “the same sort of
age verification safeguards [must be] used when tobacco is
handed over-the-doorstep as . . . when it is handed over-
the-counter.” Brief for Petitioner 8; Brief for California
et al. as Amici Curiae 11; Brief for Tobacco Control Legal
Consortium et al. as Amici Curiae 11–12; cf. Brief for
United States as Amicus Curiae 16. The FAAAA’s broad
preemption provisions, the Court holds, bar States from
adopting this sensible enforcement strategy. While I join
the Court’s opinion, I doubt that the drafters of the
FAAAA, a statute designed to deregulate the carriage of
goods, anticipated the measure’s facilitation of minors’
access to tobacco. Now alerted to the problem, Congress
has the capacity to act with care and dispatch to provide
an effective solution.
Cite as: 552 U. S. ____ (2008) 1
SCALIA, J., concurring in part
SUPREME COURT OF THE UNITED STATES
_________________
No. 06–457
_________________
G. STEVEN ROWE, ATTORNEY GENERAL OF MAINE,
PETITIONER v. NEW HAMPSHIRE MOTOR
TRANSPORT ASSOCIATION ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT
[February 20, 2008]
JUSTICE SCALIA, concurring in part.
I join the opinion of the Court, except those portions
(ante, at 4, 7, and 8) that rely on the reports of committees
of one House of Congress to show the intent of that full
House and of the other—with regard to propositions that
are apparent from the text of the law, unnecessary to the
disposition of the case, or both.