New Hampshire Motor Transport Ass'n v. Rowe

United States Court of Appeals
For the First Circuit

No. 05-2136

NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION;
MASSACHUSETTS MOTOR TRANSPORTATION ASSOCIATION, INC.;
VERMONT TRUCK & BUS ASSOCIATION, INC.,

Plaintiffs, Appellees,

v.

G. STEVEN ROWE, in his official capacity as Attorney General
for the State of Maine,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Paul Stern, Deputy Attorney General, with whom G. Steven
Rowe, Attorney General, Melissa Reynolds O'Dea, Peter B. LaFond,
and Christopher C. Taub, Assistant Attorneys General, Office of
the Attorney General, were on brief, for appellant.
Ruth N. Borenstein, with whom Paul T. Friedman, Lawrence R.
Katzin, Morrison & Foerster LLP, Michael A. Nelson and Jensen
Baird Gardner & Henry, were on brief, for appellees.

May 19, 2006
 HOWARD, Circuit Judge. In 2003, Maine enacted a law to

restrict and regulate the sale and delivery of tobacco products

purchased via the internet or other electronic means. Several

trade associations, representing air and motor carriers of

property, brought this action against the Maine Attorney General

alleging that certain provisions of this law are preempted by the

Federal Aviation Administration Authorization Act of 1994 (FAAAA).

The district court granted summary judgment for the associations

and enjoined Maine's Attorney General from enforcing the law. We

affirm in all respects but one.1

I.

A. The FAAAA

There are two FAAAA preemption provisions at issue in

this case. See Pub. L. No. 103-305, § 601; 108 Stat. 1569. The

first provides that 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). The second states that a "State may not enact or

enforce a law . . . related to a price, route, or service of an air

carrier or carrier affiliated with a direct air carrier through

common controlling ownership when such carrier is transporting

1
We are grateful for the amicus curiae briefs filed by several
state attorneys general, the American Trucking Association, the
Federal Express Corporation and the United States Chamber of
Commerce.

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property by aircraft or by motor vehicle . . . ." 49 U.S.C. §

41713(b)(4)(A).

These provisions combine to bar states (subject to

certain exceptions discussed later) from enacting laws related to

prices, routes, or services of air or motor carriers of property.

They are "intended to function in the exact same manner with

respect to [their] preemptive effects." H.R. Conf. Rep. 103-677 at

85, reprinted in 1994 U.S.C.C.A.N. at 1757.

B. The Maine Tobacco Delivery Law

In 2003, the Maine Legislature adopted "An Act to

Regulate the Sale of Tobacco Products and to Prevent the Sale of

Cigarettes to Minors." See L.D. 1236 (121st Maine Leg.) (codified

at 22 M.R.S.A. §§ 1551, 1555-C & 1555-D) (Tobacco Delivery Law).

The Tobacco Delivery Law was prompted by the recent increase in

internet tobacco sales which are consummated by direct delivery to

consumers through the mail or by commercial carriers. See

Testimony of Representative Glen Cummings Before the Joint Standing

Committee on Health & Human Services (Apr. 29, 2003). This

phenomenon has complicated Maine's efforts to regulate "the sale of

tobacco products to minors" and caused it to lose "tremendous tax

revenues as a result of tax free sales by unlicensed companies."

Id. The associations persuaded the district court that §§ 1555-

C(3)(C) & 1555-D are preempted by the FAAAA.

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 1. § 1555-C(3)(C)

Maine's Tobacco Delivery Law permits a licensed tobacco

retailer to sell tobacco products2 directly to consumers via the

internet or other electronic means so long as the retailer takes

specified steps to ensure that sales are not made to minors. See

id. §§ 1555-C(2) & (3). One such step requires the retailer to use

a carrier that will ensure that: (1) the purchaser of the tobacco

products is the same person as the addressee of the package; (2)

the addressee is of legal age to purchase tobacco products and sign

for the package; and (3) if the addressee is under 27 years of age,

that she show a valid government-issued identification verifying

that she is old enough to purchase tobacco products. Id. § 1555-

C(3)(C). Penalties are imposed only against the retailer for

violations of this provision. See id. §§ 1555-C(3)(E)&(F).

2. § 1555-D

Section 1555-D makes it illegal for any person to

knowingly deliver tobacco products to a Maine consumer if the

products were purchased from an unlicensed retailer.3 The section

also states that a person delivering a package "is deemed to know"

2
Tobacco products are broadly defined to include "any form of
tobacco and any material or device used in the smoking, chewing, or
other form of tobacco consumption, including cigarette papers and
pipes." 22 M.R.S.A. § 1551(3).
3
It does not, however, bar the delivery of tobacco products
purchased from an unlicensed retailer to a licensed tobacco
retailer or distributor operating in Maine. See id.

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that the package contains tobacco products if it (1) so indicates

on any side other than the side directly opposite the label, see

Code of Me. R. ch. 203, § 11, or (2) was shipped by a person listed

by the Attorney General as an unlicensed tobacco retailer.4

C. The Effect of the Tobacco Delivery Law on United
Parcel Service (UPS)

As discussed in further detail below, one way for the

associations to prove that the challenged provisions of the Tobacco

Delivery Law are preempted by the FAAAA is to demonstrate that they

have a forbidden significant effect on carrier services. See infra

at 25. The associations have attempted to make this showing by

highlighting the effect of the challenged provisions on UPS, a

motor/air carrier of property operating in Maine.5

UPS, which delivers approximately 65,000 packages per day

in Maine, offers door-to-door delivery service of packages and

delivery of packages on an express basis. Its delivery operations

function as an integrated system, requiring extensive planning and

coordination among its operating facilities and ground and air

fleet. Delays and disruptions in the sorting and delivery of

4
The Attorney General maintains a list of unlicensed tobacco
retailers that he distributes to carriers operating in Maine. 22
M.R.S.A. § 1555-D (2).
5
While the associations rely on UPS' experience to prove that
the Tobacco Delivery has a forbidden significant effect on
carriers, UPS is not a party to this action.

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packages can affect the timely delivery of thousands of packages

within the UPS system.

Prior to the enactment of § 1555-C(3)(C), UPS did not

require that its drivers deliver a package only to the addressee,

and it did not require a signature from the recipient of the

package unless the shipper paid a premium for this additional

service. UPS determined that it would not be feasible to alter its

delivery operations to provide these new services in Maine, so it

stopped delivering all tobacco products to Maine consumers.

To make deliveries of tobacco products to licensed

retailers and distributors in Maine as permitted by § 1555-D, UPS

now has modified its uniform package delivery procedures to

identify packages that contain tobacco products. UPS requires that

its preloaders in Maine (the employees who place the packages on

the trucks for delivery) specially examine each package to

determine if it is marked as containing tobacco or if the name of

the addressee or shipper indicates that the package likely contains

tobacco.6 Packages identified as likely containing tobacco

products are then segregated so that UPS employees can research

whether the package is destined for a licensed tobacco retailer or

distributor. If UPS determines that the addressee is not a

6
UPS does not cross-reference packages against the Attorney
General's list to determine if the shipper is listed as an
unlicensed tobacco retailer.

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licensed tobacco retailer or distributor, it arranges to return the

package to the shipper or otherwise to dispose of the package.

D. The District Court Decision

Proceeding from the premise that the FAAAA preempts a

state law if it "expressly references" a carrier's prices, routes,

or services or has a "forbidden significant effect" on the same,

the district court concluded that the challenged provisions of the

Tobacco Delivery Law are preempted by the FAAAA. See N.H. Motor

Transp. Ass'n v. Rowe, 377 F. Supp. 2d 197, 210 (D. Me. 2005)

(citing United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 327,

334-35 (1st Cir. 2003) (UPS I)). The court determined that, while

§ 1555-C(3)(C) did not expressly reference carrier services because

that section is directed only at retailers of tobacco products, it

has a forbidden significant effect on UPS because, for the carrier

to accept packages containing tobacco for delivery in Maine, it

would have to adopt procedures that would "alter [its] delivery

practices" for these packages. Id. at 216.

The court also ruled that § 1555-D both expressly

references and has a forbidden significant effect on carrier

services. It concluded that the provision expressly references

services because it prohibits carriers from delivering a certain

class of tobacco products, i.e., tobacco products purchased by

Maine consumers from unlicensed retailers. See id. at 211-12. It

also concluded that the provision also has a forbidden significant

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effect because it forced UPS to depart from "its nationally uniform

procedure" by inspecting each package to identify the contents.

Id. at 212. The Attorney General timely appealed from this

ruling.7

II.

A. Jurisdiction

Before reaching the merits of the Attorney General's

appeal, we consider two threshold jurisdictional issues. The

Attorney General asserts that the associations lack standing and

that the action is moot in light of events occurring subsequent to

the noticing of the appeal.

1. Standing

The associations invoke the representational standing

doctrine recognized by the Supreme Court in Hunt v. Washington

State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977). Under this

doctrine, "an association has standing to bring suit on behalf of

its members when: (a) its members would otherwise have standing to

sue in their own right; (b) the interests it seeks to protect are

germane to the organization's purpose; and (c) neither the claim

asserted nor the relief requested requires the participation of

individualized members in the lawsuit." Id.

7
The district court found that another section of the Tobacco
Delivery Law, which requires the shipper of tobacco products to
inform the carrier of the age of the purchaser, was not preempted.
Id. at 217 (citing 22 M.R.S.A. § 1555-C(3)(A)). The associations
have not cross-appealed from this ruling.

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 The Attorney General focuses his argument on the third

Hunt factor. He contends that evidence concerning the effect that

the challenged provisions of the Tobacco Delivery Law have on UPS

suffices only to justify preemption of the challenged provisions as

to UPS. Preemption against other carriers should occur only to the

extent that the other carriers individually prove that the

challenged provisions have a forbidden significant effect on their

prices, routes, or services.

The district court rejected this argument, observing that

"[a]ssociational standing is . . . granted in cases seeking

injunctive relief rather than damages, because individualized proof

is not necessary and the relief usually inures to the benefit of

all members injured." N.H. Motor Transp. Ass'n v. Rowe, 324 F.

Supp. 2d 231, 236 (D. Me. 2004). Because the associations only

sought an injunction and a declaratory judgment against the

challenged provisions, the court ruled that the third Hunt factor

was satisfied. See id. at 236 (citing Playboy Enters., Inc. v.

Pub. Serv. Comm'n of P.R., 906 F.2d 25, 35 (1st Cir. 1990)).

After the district court issued this ruling, we clarified

the requirements for establishing the third Hunt factor. In so

doing, we acknowledged that "there is no well developed test in

this circuit as to how the third prong of the Hunt test . . .

applies in cases where injunctive relief is sought."

Pharmaceutical Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 313-14 (1st

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Cir. 2005). But we did not embrace the proposition that, under

Playboy Enters. the third Hunt factor is always satisfied where an

association seeks injunctive relief on behalf of all of its

members. See Rowe, 429 F.3d at 314 ("Playboy is not an open door

for association standing in all injunction cases where member

circumstances differ and proof of them is important."). We

concluded that representational standing is inappropriate if

adjudicating the merits of an association's claim requires the

court to engage in a "fact-intensive-individual inquiry." Id.

(quoting Penn. Psychiatric Soc. v. Green Spring Health Servs.,

Inc., 280 F.3d 278, 287 (3d Cir. 2002)). We therefore turn to

whether the associations' preemption claim requires a sufficiently

fact-intensive inquiry to preclude representational standing.

The FAAAA provides that a state law is preempted if it

relates to the prices, routes, or services of "any motor carrier"

or "an air carrier." 49 U.S.C. §§ 14501(c) & 41713(b)(4)(A)

(emphases supplied). "Any" means "one . . . of whatever kind," and

"an" means "one." Merriam Webster's Collegiate Dictionary at 40,

53 (10th ed. 2001). The language of the FAAAA accordingly suggests

that, if a state law is preempted as to one carrier, it is

preempted as to all carriers.8 See N.H. Motor Transp. Ass'n, 377

8
Even if "an" as used in § 41713(b)(4)(A) is ambiguous, "any"
as used in § 14501(c) is clear, and Congress has emphasized that
these provisions were intended to "function in the exact same
manner." H.R. Conf. Rep. 103-677 at 85, reprinted in 1994
U.S.C.C.A.N. at 1757.

-10-
F. Supp. 2d at 219. Such a reading accords with one of the FAAAA's

central purposes: to establish a "level playing field" among

carriers. H.R. Conf. Rep. 103-677 at 85, reprinted in 1994

U.S.C.C.A.N. at 1757; see Californians for Safe Dump Truck Transp.

v. Mendonca, 152 F.3d 1184, 1187 (9th Cir. 1998). If preemption

were judged on a carrier-specific basis, the result would be a

"patchwork" of state laws applying to some carriers and not to

others, depending on which carriers proceeded to litigation. H.R.

Conf. Rep. 103-677 at 87 reprinted in 1994 U.S.C.C.A.N. at 1759.

Such a result would undermine Congress' goal of encouraging

uniformity in carrier regulation. Thus, the associations can

prevail by establishing that the challenged provisions of the

Tobacco Delivery Law have a forbidden significant effect on one

carrier. The district court correctly ruled that the associations

have standing to press their preemption claim. See Rowe, 429 F.3d

at 314.9

2. Mootness

After the district court granted summary judgment, UPS

settled an enforcement action brought by the New York Attorney

9
The Attorney General also argues that representational
standing should not be allowed because "the increased use of
[representational] standing by large businesses [makes] the defense
of suits . . . more difficult by controlling discovery and access
to information." We do not foreclose the possibility that
representational standing may be improper in a particular case
because of some hardship imposed on a defendant in conducting
discovery. But the Attorney General has not attempted to
demonstrate such a hardship here.

-11-
General under a New York law restricting the ability of carriers to

deliver cigarettes to consumers. See N.Y. Pub. Health Law § 1399 -

ll(2) (McKinney 2001). In that settlement, UPS promised to stop

"shipping cigarettes to individual consumers in the United States

while still permitting lawful shipments of cigarettes to licensed

tobacco businesses." To fulfill this promise, UPS agreed (1) to

identify all shippers that may be cigarette retailers and advise

them that UPS will not accept cigarettes for delivery to consumers;

(2) to discipline shippers that violate UPS's non-delivery policy;

(3) to impose measures to ensure that employees "actively" look for

indications that a package contains cigarettes; and (4) to instruct

drivers not to deliver cigarette packages to consumers.

The Attorney General argues that, as a result of the

settlement, this appeal has become moot, the judgment should be

vacated and the case should be dismissed. See Duke Power Co. v.

Greenwood County, 229 U.S. 259, 267 (1936) (stating that where a

case becomes moot while on appeal, the appellate court must set

aside the judgment and remand the case with instructions that it be

dismissed). He contends that, by agreeing not to deliver

cigarettes directly to consumers throughout the United States and

directing employees actively to look for cigarettes, UPS is no

longer affected by the Tobacco Delivery Law.

Article III considerations require that an actual case or

controversy exist between the parties throughout the course of

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litigation. See Ramirez v. Sanchez Ramos, 438 F.3d 92, 100 (1st

Cir. 2006). A case must be dismissed as moot "if, at some time

after the institution of the action, the parties no longer have a

legally cognizable stake in the outcome." Goodwin v. C.N.J., Inc.,

436 F.3d 44, 46 (1st Cir. 2006). This rule applies even where the

case becomes moot while pending on appeal. See Great Western Sugar

Co. v. Nelson, 442 U.S. 92, 93 (1979) (per curiam). But "[t]he

burden of establishing mootness rests squarely on the party raising

it, and the burden is a heavy one." Mangual v. Roger-Sabat, 317

F.3d 45, 60 (1st Cir. 2003) (citation omitted). To establish

mootness, the party raising it must show that the court cannot

grant any "effectual relief whatever" to its opponent. Church of

Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992).

The Attorney General has not met this heavy burden. The

New York settlement agreement applies only to the delivery of

cigarettes, but the Tobacco Delivery Law applies to "any form of

tobacco and any material or device used in the smoking, chewing or

other form of tobacco consumption." 22 M.R.S.A. § 1551-3. UPS

could therefore adhere to the terms of the settlement agreement and

nevertheless violate the Tobacco Delivery Law by unlawfully

delivering non-cigarette tobacco products. Because enjoining the

challenged provisions would permit UPS to deliver all tobacco

products, effectual relief remains available.

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 B. Preemption

We turn now to the merits of the district court's

preemption ruling. We review the ruling de novo, considering the

record and all reasonable inferences in the light most favorable to

the Attorney General. See Mullin v. Raytheon Co., 164 F.3d 696,

698 (1st Cir. 1999). We may affirm on any ground revealed by the

record. See Houlton Citizens' Coalition v. Houlton, 175 F.3d 178,

183-84 (1st Cir. 1999).

The Attorney General presents two arguments for reversal.

First, he contends that the FAAAA does not preempt state laws

enacted pursuant to a state's police power to protect the health

and welfare of its citizens. The Attorney General asserts that the

FAAAA preempts only state laws that impose traditional economic

regulation on carriers -- e.g. entry and commodity controls, tariff

filing requirements, and price ceilings. Because the Tobacco

Delivery Law does not impose such traditional economic

restrictions, the Attorney General argues that the FAAAA does not

apply. Alternatively, the Attorney General contends that, even if

the Act applies, neither challenged provision is "related to"

carrier services within the meaning of the FAAAA.

1. Applicability of the FAAAA to a State's
Police-Power Enactments

A fundamental tenet of our federalist system is that

constitutionally enacted federal law is supreme to state law. See

U.S. Const. Art. VI. cl. 2. As a result, federal law sometimes

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preempts state law either expressly or by implication. See Gade v.

Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 98 (1992). "Express

preemption occurs when Congress has unmistakably . . . ordained

that its enactments alone are to regulate a subject and state laws

regulating that subject must fall." Mass. Ass'n of Health

Maintenance Organizations v. Ruthardt, 194 F.3d 176, 179 (1st Cir.

1999) (citation omitted). In every preemption case, "the purpose

of Congress is the ultimate touchstone." Medtronic, Inc. v. Lohr,

518 U.S. 470, 485 (1996). The primary focus is on the "plain

wording" of the statute because the text "contains the best

evidence of Congress' pre-emptive intent." Sprietsma v. Mercury

Marine, 537 U.S. 51, 62 (2002). But "[a]lso relevant is the

structure and purpose of the statute as a whole as revealed . . .

through the reviewing court's reasoned understanding of the way in

which Congress intended the statute and its surrounding regulatory

scheme to affect business, consumers and the law." Medtronic, 518

U.S. at 486.10

10
The parties devote a great deal of argument to whether we
should conduct our preemption analysis with a presumption against
preemption because the state law at issue was enacted to further
Maine's police-power interest. See Rice v. Santa Fe Elevator
Corp., 331 U.S. 218, 230 (1947) (stating that a preemption analysis
starts "with the assumption that the historic police powers of the
States were not to be superseded by the Federal Act unless that was
the clear and manifest purpose of Congress"). The circumstances in
which the presumption is to apply are not altogether clear.
Compare Medtronic, 518 U.S. at 485 (stating that the presumption
against preemption applies "in all pre-emption cases") with United
States v. Locke, 529 U.S. 89, 108 (2000) (holding the presumption
inapplicable where "the State legislates in an area where there has

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 We begin with the text. As mentioned above, the FAAAA

prohibits states from enacting laws "related to a price, route, or

service" of a carrier. 49 U.S.C. §§ 14501(c) & 41713(b)(4)(A).

This language was patterned after the preemption provision of the

Airline Deregulation Act of 1978. See H.R. Conf. Rep. 103-677 at

85, reprinted in 1994 U.S.C.C.A.N. 1757, 1759; Mendonca, 152 F.3d

at 1184; Desardouin v. United Parcel Serv., Inc., 285 F. Supp. 2d

153, 162 (D. Conn. 2003). Therefore, in addition to cases

interpreting the FAAAA, we look to cases interpreting the Airline

Deregulation Act. UPS I, 318 F.3d at 335-36; Mastercraft

Interiors, Ltd. v. ABF Freight Sys., Inc., 284 F. Supp. 2d 284, 287

(D. Md. 2003).

The seminal case is Morales v. Trans World Airlines,

Inc., 504 U.S. 374 (1992). Like the FAAAA, the version of the

Airline Deregulation Act considered in Morales preempted state laws

"relating to rates, routes or services of any air carrier."11 The

been a history of significant federal presence"). In any event,
the presumption can be overcome where the congressional purpose is
sufficiently clear. See Egelhoff v. Egelhoff 532 U.S. 141, 151
(2001). For the reasons discussed infra, we think that the
congressional intent to preempt state police-power enactments that
are related to carrier prices, routes, or services is sufficiently
clear to overcome any presumption that would apply here.

11
In 1994 Congress replaced "relating" with "related" and
"rates" with "price" but did not intend these revisions to
substantively change the law. See Pub. L. No. 103-272, § 1(a); 108
Stat. 745. This provision is currently codified at 49 U.S.C. §
41713(b)(1).

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Court identified "relating to" as the key phrase in determining the

breadth of the preemption provision and concluded that the "words

. . . express a broad pre-emptive purpose." Id. at 383. It relied

on several cases in which the Court had interpreted a similarly-

worded provision of the Employment Retirement Security Act of 1974

(ERISA) preempting all state laws that "relate to" an employee

benefit plan. Id. at 384. The Morales Court emphasized that this

language had an "expansive sweep" and that it was "conspicuous for

its breadth." Id. In light of Congress' use of similarly broad

language, the Court concluded that Congress intended the Airline

Deregulation Act to preempt any state law that has "a connection

with or reference to airline rates, routes, or services." Id.

The FAAAA's drafters were familiar with Morales and

approved of its reasoning. The Conference Committee Report

explains that "the conferees [did] not intend to alter the broad

preemption interpretation adopted by the United States Supreme

Court in Morales . . . ." H.R. Conf. Rep. 103-677 at 83, reprinted

in 1994 U.S.C.C.A.N. at 1755. The sweep of the FAAAA's text and

the drafters' expressed intent to use Morales as a roadmap are

strong evidence that the FAAAA was not intended to preempt only a

narrow class of economic regulations while excluding the many laws

enacted by the states under their police powers. If Congress had

such a limited purpose in mind, it likely would have employed

narrower language in fashioning the FAAAA preemption provisions.

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Cf. Botz v. Omni Air Int'l, 286 F.3d 488, 493-94 (8th Cir. 2002)

("Although Congress could easily have selected more restrictive

terminology to describe the type of . . . enactment the [Airline

Deregulation Act] pre-empts, the provision as written is without

language that would produce a more limited pre-emptive effect.").

The Attorney General argues that we should disregard

Morales because, post-Morales, the Supreme Court has narrowed its

understanding of ERISA's "relat[ing] to" language. We previously

rejected this identical argument:

The Secretary argues that the broad preemption
standard adopted in Morales has been overruled
by a number of Supreme Court cases
narrowing the preemptive effect of [ERISA].
While the Morales Court undoubtedly took its
interpretive cues from the ERISA preemption
jurisprudence then in existence, it does not
follow that any change in the ERISA law
necessitates a parallel change in the law
affecting . . . carriers. As Judge Easterbrook
has put it: [I]f developments in pension
law have under-cut holdings in air-
transportation law, it is for the Supreme
Court itself to make the adjustments. Our
marching orders are clear: follow decisions
until the Supreme Court overrules them.

UPS I, 318 F.3d at 335 n.19 (quoting United Airlines, Inc. v. Mesa

Airlines, Inc., 219 F.3d 605, 608 (7th Cir. 2000)). Absent

extraordinary circumstances not present here, we are not at liberty

to disregard this ruling. See United States v. Wogan, 938 F.2d

1446, 1449 (1st Cir. 1991) ("We have held, time and again, that in

a multi-panel circuit, prior panel decisions are binding upon newly

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constituted panels in the absence of supervening authority

sufficient to warrant disregard of established precedent.").

We look also to the FAAAA's structure and legislative

history. The FAAAA includes a series of exceptions to the general

preemption rule. The excepted areas are:

the safety regulatory authority of a
State with respect to motor vehicles,
the authority of a State to impose
highway route controls or limitations based on
the size or weight of the motor vehicle or the
hazardous nature of the cargo, or the authority
of a State to regulate motor carriers with
regard to minimum amounts of financial
responsibility relating to insurance
requirements and self-insurance authorization.

49 U.S.C. §§ 14501(c)(2) & 41713(b)(4)(B)(i). The Attorney General

acknowledges that the challenged provisions of the Tobacco Delivery

Law do not fall within any of these exceptions. He contends,

however, that these statutory exceptions suggest broader

congressional purpose to permit states to regulate carriers to

protect citizen health and safety. The Attorney General points to

a passage from the FAAAA's legislative history indicating that the

enumerated exceptions were "not intended to be all inclusive," H.R.

Conf. Rep. 103-677 at 84, reprinted in 1994 U.S.C.C.A.N. at 1756, to

argue that we may establish an additional exception to FAAAA

preemption for laws enacted pursuant to a state's police power to

protect the health and welfare of its citizens.

We have cautioned that an overly broad interpretation of

the FAAAA exceptions "would swallow the rule of preemption." United

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Parcel Serv., Inc. v. Flores-Galarza, 385 F.3d 9, 14 (1st Cir. 2004)

(UPS II). An exclusion from preemption for police-power enactments

would surely "swallow the rule of preemption," as most state laws

are enacted pursuant to this authority. Id. The exceptions

preserving the states' authority to regulate motor vehicles do not

support the Attorney General's argument. See id. (rejecting an

argument that the FAAAA preemption exceptions indicate a

congressional intent to preserve state authority over safety issues

generally).

While the statute's structure does not support the

Attorney General's police-power argument, there is some support in

the legislative history for his view that the FAAAA preempts only

state economic regulation. The Conference Committee Report observed

that "[s]tate economic regulation of motor carriers . . . is a huge

problem for national and regional carriers attempting to conduct a

standard way of doing business." H.R. Conf. Rep. No. 103-677 at 85,

reprinted in 1994 U.S.C.C.A.N. at 1757. The conferees identified

"typical forms" of harmful regulation to include "entry controls,

tariff filing, price regulation," and regulation of the "types of

commodities carried." Id. at 1758. This history led the Supreme

Court to remark that "the problem to which the [FAAAA] congressional

conferees attended was state economic regulation." Columbus v. Ours

Garage & Wreckers Serv., 536 U.S. 424, 440 (2002).

This history, however, does not indicate that preempting

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economic regulation was the FAAAA's only purpose. And, in any

event, the legislative history cannot trump the statute's text.

See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 521 (1992)

(declining to adopt a limited interpretation of a preemption

provision suggested by legislative history because "the language of

the [cigarette labeling] Act plainly reaches" further); Morales, 504

U.S. at 385 n.2 (The "legislative history need not confirm the

details of changes in the law effected by statutory language before

we will interpret that language according to its natural meaning.").

Congress often acts to address a specific problem but ultimately

settles on a broader remedy. See Penn. Dep't of Corr. v. Yeskey,

524 U.S. 206, 213 (1998) ("[T]he fact that a statute can be applied

in situations not expressly anticipated by Congress does not

demonstrate ambiguity. It demonstrates breadth.").

In addition, the legislative history reveals a second goal

for FAAAA preemption which is inconsistent with the Attorney's

General argument: "to create a completely level playing field

between air carriers . . . on the one hand and motor carriers on the

other." H.R. Conf. Rep. 103-677 at 85, reprinted in 1994

U.S.C.C.A.N. at 1757. In other words, the conferees intended the

scope of FAAAA and Airline Deregulation Act preemption to be

coterminous. See Ace Auto Body & Towing Ltd. v. City of New York,

171 F.3d 765, 772 (2d Cir. 1999); Mendonca, 152 F.3d at 1187.

-21-
 In the Airline Deregulation Act context, the Supreme Court

has focused on the effect that a state law has on carrier

operations, not on the state's purpose for enacting the law. In

Morales, the Court found that the Airline Deregulation Act preempted

a directive promulgated by several state attorneys general informing

airlines that certain advertising practices would be considered to

violate state consumer-protection laws. 504 U.S. at 379. And, in

American Airlines, Inc. v. Wolens, 513 U.S. 219, 227-28 (1995), the

Court held that the Airline Deregulation Act preempted a cause of

action under the Illinois Consumer Fraud Act concerning the

redemption of frequent-flier miles. In both cases, the Court's

preemption analysis centered on the impact that the challenged state

laws had on airline services and rates and not on the fact that the

preempted laws were enacted pursuant to the states' police power to

combat consumer fraud. See Fla. Lime & Avocado Growers v. Paul,

373 U.S. 132, 150 (1973) (describing the traditional state authority

to pass laws to combat consumer fraud). The Court reached these

conclusions over dissents by Justice Stevens arguing (similarly to

the Attorney General here) that the state laws at issue should not

be preempted because there was insufficient evidence of

congressional intent to preempt state police-power enactments. See

Am. Airlines, 513 U.S. at 235-31 (Steven, J. dissenting in part);

Morales, 504 U.S. at 419-27 (Stevens, J., dissenting).

-22-
 Morales and American Airlines thus teach that, under the

Airline Deregulation Act, the focus should be on the effect that the

state law has on airline operations. Accepting the Attorney

General's argument would shift the analysis under the FAAAA away

from that state law's effect and towards the state's purpose for

enacting the law. A purpose-related limitation on FAAAA preemption

would thus inevitably create a gap between the scope of FAAAA and

Airline Deregulation Act preemption -- a gap which the FAAAA

drafters sought to avoid.

In the end, the Attorney General's argument founders

because it cannot be reconciled with the FAAAA's text. The Act's

drafters chose to express the preemptive scope of the FAAAA in words

that they understood to be exceedingly broad. In the preemption

context, we are to give effect to the ordinary meaning of a

congressional enactment "unless there is good reason to believe that

Congress intended the language to have some more restrictive

meaning." Cipollone, 505 U.S. at 521. We do not find a

sufficiently compelling basis in either the structure or history of

the FAAAA to interpret the Act contrary to its "deliberately

expansive text." Morales, 504 U.S. at 384. We therefore conclude

that the FAAAA preempts state police-power enactments to the extent

that they are "related to" a carrier's prices, routes, or services.12

12
The Attorney General offers a narrower argument for excluding
from FAAAA preemption state laws intended to address underage
smoking. He cites the Synar Amendment, a federal law conditioning

-23-
 2. FAAAA Preemption of the Tobacco Delivery Law

We turn now to whether the challenged provisions of the

Tobacco Delivery Law are preempted because they are "related to"

carrier services. The parties do not contest that carriers provide

the service of delivering "packages on an express or time-guaranteed

basis." See N.H. Motor Transp. Ass'n, 377 F. Supp. 2d at 209

(quoting UPS I, 318 F.3d at 336). But they disagree over whether

the challenged provisions are "related to" this service.

We have previously interpreted the phrase "related to" as

used in the FAAAA:

The phrase "related to" has a broad meaning in
ordinary usage: to stand in some relation; to
have bearing or concern; to pertain; refer; to
bring in association or connection with. When
used in a preemption provision, such as
[in the FAAAA], it has a similarly broad reach.
State laws and regulations having a connection
with or reference to a . . . carrier's . . .
services are preempted under the [FAAAA]. A
sufficient nexus exists if the law expressly
references the . . . carriers' . . . services

the states' receipt of certain federal funds on their enacting laws
to ban the sale of tobacco products to minors. See 42 U.S.C. §
300x-26. The Attorney General contends that the Synar Amendment
demonstrates Congress' intent that the states be able to regulate
the delivery of tobacco products irrespective of the FAAAA. We
disagree. The Synar Amendment indicates Congress' intent that the
states take the lead in addressing the underage smoking problem.
But the Attorney General has not identified any evidence that
Congress intended the states do so in derogation of other federal
laws. The FAAAA and Synar Amendment can exist harmoniously because
the states may pass laws to curb underage smoking without passing
laws "related to" carrier prices, routes, or services. See UPS I,
318 F.3d at 333-34 (stating that courts should endeavor to read
congressional enactments in harmony whenever possible).

-24-
 or has a forbidden significant effect on the
same.

UPS I, 318 F.3d at 335. We therefore consider whether the district

court correctly concluded that the challenged provisions of the

Tobacco Delivery Law either expressly reference carrier services or

have a forbidden significant effect on UPS' services.

We begin with § 1555-C(3)(C). As set forth above, this

statute requires tobacco retailers seeking to ship tobacco products

directly to Maine consumers to use only carriers that deliver the

package directly to the addressee/purchaser, require a signature

from the addressee/purchaser, and conduct age verification if the

addressee/purchaser is under 27 years of age. Another section

penalizes retailers that use carriers that do not provide these

services. 22 M.R.S.A. §§ 1555-C(3)(E)&(F).

Section 1555-C(3)(C) expressly references a carrier's

service of providing the timely delivery of packages. The statute

prescribes the method by which a carrier operating in Maine must

deliver packages containing tobacco products in a way that would

affect the ability of the carrier to meet package-delivery

deadlines. Delays in searching for the purchaser, making multiple

delivery attempts if the purchaser cannot be located, obtaining the

purchaser's signature, and verifying the purchaser's age all could

affect timely deliveries. See UPS I, 318 F.3d at 336 (finding that

the FAAAA preempted a state law that "affect[ed] the timeliness and

-25-
effectiveness" of a carrier's service).

The Attorney General responds that there is no FAAAA

preemption because § 1555-C(3)(C) regulates retailers of tobacco

products and not carriers. He also argues that we should decline to

find preemption because any carrier can avoid the requirements of §

1555-C(3)(C) by declining to provide tobacco-product deliveries to

Maine consumers.

The Attorney General's first argument amounts to a claim

that there can be no FAAAA preemption unless the state law imposes

a direct regulation on carriers. This argument cannot be squared

with the FAAAA's text because it reads the broad phrase "related to"

out of the statute and replaces it with the narrower term

"regulates." See Morales, 504 U.S. at 385 (rejecting an argument

that would have read "relating to" out of the Airline Deregulation

Act and replaced it with "regulate"); UPS I, 318 F.3d at 335

(rejecting an argument for narrowing scope of the FAAAA that "would

read 'the related to language' out of the statute").

Moreover, limiting preemption to direct regulation of

carriers is inconsistent with the FAAAA's purpose to bar states from

policing carrier operations. See Am. Airlines, 513 U.S. at 228. A

state may use its coercive power to cause carriers to conform to

state-imposed rules in at least two ways: it may directly regulate

carriers or it may limit retailers to hiring only those carriers

that comply with the state-imposed mandates. Either way the state

-26-
is employing its coercive power to police the method by which

carriers provide services in the state. In short, the Attorney

General's argument would lead to the untenable result of permitting

states to regulate carrier services indirectly by regulating

shippers. Cf. Abington Sch. Dist. v. Schemp, 374 U.S. 203, 230

(1963) (declining to adopt an interpretation that would permit

states to do indirectly what they cannot do directly).

The Attorney General's alternative argument -- that there

is no preemption because a carrier can forgo certain tobacco-product

deliveries in Maine -- also fails. Declining to find preemption

simply because a carrier can limit its in-state business to avoid a

particular requirement would undermine the FAAAA's goal of creating

an environment in which "[s]ervice options will be dictated by the

marketplace," and not by state regulatory regimes. H.R. Conf. Rep.

103-677 at 88, reprinted in 1994 U.S.C.C.A.N. at 1760. The district

court correctly concluded that the FAAAA preempts § 1555-C(3)(C).

We turn finally to whether the FAAAA preempts § 1555-D.

In considering this question, we are mindful that courts should "not

nullify more of a legislature's work than is necessary, for . . .

a ruling of unconstitutionality frustrates the intent of the

elected representative of the people." Ayotte v. Planned Parenthood

of N. New England, 126 S. Ct. 961, 967 (2006) (internal citation

omitted). The first part of §1555-D makes it unlawful for any

person knowingly to deliver to Maine consumers certain contraband

-27-
tobacco products -- i.e., those tobacco products purchased by

consumers from unlicensed retailers. The second part of § 1555-D

charges a carrier with knowledge that a package contains tobacco

products if the package is so marked or if the shipper appears on

the Attorney General's list of unlicensed tobacco retailers.

Under Maine law, tobacco products purchased by a consumer

from an unlicensed retailer are contraband. See 22 M.R.S.A. § 1555-

C(7). The first part of § 1555-D is a corollary to § 1555-C(7) in

that it makes the knowing delivery of contraband tobacco products

illegal. Thus, the question we face is whether a generally

applicable law barring any person from knowingly delivering

contraband tobacco is preempted by the FAAAA insofar as the law

pertains to carriers.

While the FAAAA's preemptive effect is broad, see UPS I,

318 F.3d at 335, it is not unlimited, see Mendonca, 152 F.3d at

1188. State laws that only have a "tenuous, remote, or peripheral"

relation to services are beyond the FAAAA's reach. Morales, 504

U.S. at 390; Mendonca, 152 F.3d at 1188. In describing this

limitation on preemption in the Airline Deregulation Act context,

the Supreme Court explained that its broad interpretation of the

statute's preemption provision did not place it "on a road that

leads to pre-emption of gambling and prostitution as applied to

airlines." Morales, 504 U.S. at 390. We understand the Morales

Court to have meant that states may continue to enjoy the power to

-28-
ban primary conduct, and that the ADA and FAAAA do not preempt laws

applying these prohibitions to airlines and carriers.

Accordingly, Morales suggests that § 1555-D's ban on the

knowing delivery of contraband tobacco products is not preempted by

the FAAAA -- even only insofar as it pertains to carrier services.

Section 1555-D requires that carriers do not act as knowing

accomplices in the illegal sale of tobacco products. It does not,

however, require that carriers modify their delivery methods other

than by declining to transport a product that Maine has legitimately

banned. We think that this effect on services is "too tenuous" to

warrant preemption. Mendonca, 152 F.3d at 1189 (stating that a

state law is too tenuous to be preempted by the FAAAA where the law

does not frustrate the FAAAA's deregulatory purposes).

If the rule were otherwise, states would be unable to bar

a primary method by which contraband crosses state lines. We do not

believe that this was Congress' intent in enacting the FAAAA. Other

courts applying the FAAAA to prohibitions on the delivery of

contraband tobacco have reached similar conclusions. See Robertson

v. Liquor Control Bd., 10 P.3d 1079, 1084-85 (Wash. App. Ct. 2000)

(concluding that the FAAAA did not preempt a state law banning the

transport of contraband cigarettes because otherwise "a motor

carrier would be exempt from forfeiture for transporting a

methamphetamine lab or poached game"); see also N.Y. State Motor

Truck Ass'n v. Pataki, No. 03-CV-2386 (GBD), 2004 WL 2937803, at *6

-29-
(W.D.N.Y. Aug. 19, 2003) (concluding that the FAAAA did not preempt

a state law making it unlawful for carriers to deliver cigarettes

directly to New York consumers because "the mere fact that a

statute concerns the transportation of a particular cargo by . . .

carriers . . . does not render it . . . unconstitutional on

preemption grounds"); Ward v. New York, 291 F. Supp. 2d 188, 210-211

(S.D.N.Y. 2004) (similar).13

But, while Maine may ban a carrier from knowingly

transporting contraband tobacco products, it may not dictate the

procedures that a carrier should employ to locate these products in

its delivery chain. See UPS I, 318 F.3d at 336 (concluding that the

FAAAA preempted a Puerto Rico revenue-collection scheme that

mandated procedures that carriers had to follow to deliver certain

packages). The second part of § 1555-D violates this principle.

As noted, § 1555-D imposes upon a carrier constructive

13
There are many state laws barring the transport and delivery
of contraband. E.g., Ala. Code § 2-14-5 (barring transport of
certain products related to bee keeping); Ariz. Rev. Stat. § 3-209
(barring the transport of quarantined produce); Ariz. Rev. Stat. §
13-3102 (barring transport of prohibited weapons); Cal. Bus. &
Prof. Code § 17533.9 (barring transport of tear gas); Cal. Fish &
Game Code § 4800 (barring the transport of mountain lions); N.Y.
Penal Law § 190.50 (barring transport of slot machines or other
gambling devices). We have not a found a single case, outside the
tobacco context, in which bans on the transport of contraband have
been challenged as preempted by the FAAAA. Cf. Sir Arthur Conan
Doyle, Silver Blaze (1890) (William S. Baring-Gould, ed., The
Annotated Sherlock Holmes, Vol. II, 1967) (Detective Gregory: "'Is
there any other point to which you would wish to draw my
attention?" Sherlock Holmes: "To the curious incident of the dog in
the night-time." Gregory: "The dog did nothing in the night-time."
Holmes: "That was the curious incident.").

-30-
knowledge that it has delivered a tobacco product if the package

containing the product is marked as containing tobacco or if the

seller's name appears on the Attorney General's list. As UPS'

experience demonstrates, a carrier seeking to comply with § 1555-D

must specially inspect every package destined for delivery in Maine.

Once the carrier has finished this inspection, it must segregate the

packages that contain tobacco and research whether the addressee is

a Maine-licensed retailer or distributor who can receive the

package. While the second part of § 1555-D does not expressly

reference carrier services, it "impermissibly affect[s] . . .

services . . . because it requir[es] UPS to identify the contents of

the packages (a deviation from standard procedures used in

deliveries elsewhere in the United States). . . ." UPS II, 385 F.2d

at 14 (parenthesis in original). UPS can only provide timely

package delivery if it follows uniform procedures that allow for "an

orderly flow of packages." UPS I, 318 F.3d at 336. Because the

second part of § 1555-D has the effect of forcing UPS to change its

uniform package-processing procedures, the district court correctly

found it to be preempted.14

14
The Attorney General argues that the associations have failed
to establish a forbidden significant effect on UPS because they did
not offer studies conducted by UPS on the cost of compliance. We
agree with the district court that there is no such quantification
requirement. The cases in this area have looked to the logical
effect that a particular scheme has on the delivery of services or
the setting of rates and have not required the presentation of
empirical evidence. See N.H. Motor Transp. Ass'n, 377 F. Supp. 2d
at 217 n. 92 (collecting cases).

-31-
 In reaching this conclusion, we recognize that there is a

potential tension between saying that, on the one hand, Maine is

free to punish the knowing delivery of material that it has

classified as contraband, while, on the other hand, ruling that it

may not dictate or interfere with a carrier's delivery procedures.

What we are saying here, however, is that Maine cannot use the

mechanisms outlined in the statute to impute knowledge based on a

failure to read labels or consult lists -- an imputation which

would amount to prescribing how carriers must operate.

If, however, Maine could prove that a carrier employee had

actual knowledge that a package being delivered was contraband

tobacco, then it might have a colorable enforcement case -- although

such circumstances, as a practical matter, may be difficult to

prove. True, the "related to" language could stretch to such a case

but it could also stretch to the knowing delivery of hard drugs --

and Congress cannot have intended such a result.

III.

"[T]obacco use, particularly among children and

adolescents, poses perhaps the single most significant public health

problem in the United States." FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 161 (2000). There is no question that Maine

has sought to achieve a worthy objective by passing the Tobacco

Delivery Law to combat this pernicious problem. See N.H. Motor

Transp. Ass'n, 377 F. Supp. 2d at 219. But the FAAAA focuses on the

-32-
effect that a state's law has on carriers, and not on the state's

objective in passing the law. To the extent that Maine's Tobacco

Delivery Law requires (or has the effect of requiring) carriers to

implement state-mandated procedures in the processing and delivery

of packages, it is preempted by the FAAAA. But to the extent that

the Tobacco Delivery Law merely bars all persons (including

carriers) from knowingly transporting contraband tobacco into Maine,

the FAAAA is not implicated.

We affirm the judgment as it pertains to 22 M.R.S.A. §

1555-C(3)(C) and the second part of 22 M.R.S.A. § 1555-D but reverse

the judgment as it pertains to the first part of § 1555-D. We

remand the case to the district court with instructions to amend the

judgment consistent with this opinion. No costs are awarded.

So ordered.

-33-