Altria Group, Inc. v. Good , 555 U.S. 70 ( 2008 )


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  • (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.
    2                    ALTRIA GROUP, INC. v. GOOD
    
                                      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
         that corrections may be made before the preliminary print goes to press.
    
    
    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.
    2                  ALTRIA GROUP, INC. v. GOOD
    
                              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.
                     Cite as: 555 U. S. ____ (2008)            3
    
                         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
    4               ALTRIA GROUP, INC. v. GOOD
    
                          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).
                      Cite as: 555 U. S. ____ (2008)             5
    
                          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]
    6                 ALTRIA GROUP, INC. v. GOOD
    
                            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
    8                   ALTRIA GROUP, INC. v. GOOD
    
                              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.
                      Cite as: 555 U. S. ____ (2008)            9
    
                          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
    10                  ALTRIA GROUP, INC. v. GOOD
    
                              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.
                        Cite as: 555 U. S. ____ (2008)                11
    
                            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.
    12                  ALTRIA GROUP, INC. v. GOOD
    
                              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.
                         Cite as: 555 U. S. ____ (2008)                  13
    
                             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.
    

Document Info

DocketNumber: 07-562

Citation Numbers: 555 U.S. 70, 129 S. Ct. 538, 172 L. Ed. 2d 398, 2008 U.S. LEXIS 9127

Filed Date: 12/15/2008

Precedential Status: Precedential

Modified Date: 3/23/2018

Authorities (40)

Martin v. Medtronic Inc , 254 F.3d 573 ( 2001 )

United States v. Detroit Timber & Lumber Co. , 200 U.S. 321 ( 1906 )

Girouard v. United States , 328 U.S. 61 ( 1946 )

Rice v. Santa Fe Elevator Corp. , 331 U.S. 218 ( 1947 )

Retail Clerks v. Schermerhorn , 375 U.S. 96 ( 1963 )

Swift & Co. v. Wickham , 382 U.S. 111 ( 1965 )

Jones v. Rath Packing Co. , 430 U.S. 519 ( 1977 )

Maryland v. Louisiana , 451 U.S. 725 ( 1981 )

Texas v. Brown , 460 U.S. 730 ( 1983 )

CTS Corp. v. Dynamics Corp. of America , 481 U.S. 69 ( 1987 )

Payne v. Tennessee , 501 U.S. 808 ( 1991 )

Morales v. Trans World Airlines, Inc. , 504 U.S. 374 ( 1992 )

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

Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833 ( 1992 )

Holder v. Hall , 512 U.S. 874 ( 1994 )

American Airlines, Inc. v. Wolens , 513 U.S. 219 ( 1995 )

Freightliner Corp. v. Myrick , 514 U.S. 280 ( 1995 )

Medtronic, Inc. v. Lohr , 518 U.S. 470 ( 1996 )

Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 ( 1998 )

United States v. Locke , 529 U.S. 89 ( 2000 )

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