By now, you have probably already read the Supreme Court's new preemption decision, Altria Group, Inc. v. Good, ___ U.S. ___, 129 S.Ct. 538 (Dec. 16, 2008). (See this blog post for my original coverage of this case.) In Altria, the Supreme Court held that the Federal Cigarette Labeling and Advertising Act ("FCLAA") (15 U.S.C. §§1331 et seq.) did not preempt a claim under the Maine Unfair Trade Practices Act (a statute very similar to the UCL) for deceptive advertising of "light" cigarettes.
I have been thinking about the impact of this case, if any, on the pending Tobacco case, in which we expect the California Supreme Court to interpret Prop. 64. The California Supreme Court's earlier preemtion decision was, if anything, narrower than Altria. In In re Tobacco Cases II, 41 Cal.4th 1257 (2007) (discussed in this post), the California Supreme Court held that the FCLAA did partly preempt the UCL claims in that case -- to the extent they had to do with marketing cigarettes to minors. The Supreme Court considered itself bound by Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), but in Altria v. Good, the U.S. Supreme Court distinguished that case:
Reilly involved regulations promulgated by the Massachusetts attorney general “‘in order to address theincidence 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 prohibiting false or misleading statements. Thus, whereas the “prohibition” in Cipollone was the common-law fraud rule, the “prohibitions” in Reilly were the targeted regulations. Accordingly, our holding in Reilly that the regulations were pre-empted provides no support for an argument that a general prohibition of deceptive practices is “based on” the harm caused by the specific kind of deception to which the prohibition is applied in a given case.
Altria, slip op. at 12.
The outcome of Altria is consistent with the Supreme Court's decision in March 2008 to deny cert. in the Tobacco preemption case. Review had already been granted in Altria in January 2008. And in supplemental letter briefs in Tobacco, the parties both took the position that the preemption case has no bearing on the Prop. 64 case. Even so, Altria may well prove to limit the precedential value of the California Supreme Court's Tobacco preemption decision going forward.