825 F.2d 620 (1st Cir. 1987), 86-1525, Palmer v. Liggett Group, Inc.

Docket Nº:86-1525.
Citation:825 F.2d 620
Party Name:Ann M. PALMER, as Administratrix of the Estate of Joseph C. Palmer, and Ann M. Palmer and Daphne S. Palmer, Plaintiffs, Appellees, v. LIGGETT GROUP, INC., and Liggett & Myers Tobacco Co., Inc., Defendants, Appellants.
Case Date:August 25, 1987
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 620

825 F.2d 620 (1st Cir. 1987)

Ann M. PALMER, as Administratrix of the Estate of Joseph C.

Palmer, and Ann M. Palmer and Daphne S. Palmer,

Plaintiffs, Appellees,


LIGGETT GROUP, INC., and Liggett & Myers Tobacco Co., Inc.,

Defendants, Appellants.

No. 86-1525.

United States Court of Appeals, First Circuit

August 25, 1987

Heard Oct. 9, 1986.

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Donald J. Cohn with whom Webster & Sheffield, New York City, Samuel Adams, Joseph J. Leghorn, Warner & Stackpole, Boston, Mass., and James V. Kearney, New York City, were on brief, for appellants.

Paul M. Bator, Chicago, Ill., with whom Kathryn A. Oberly, Washington, D.C., Mayer, Brown & Platt, Chicago, Ill., Marshall Simonds, Goodwin, Procter & Hoar, Boston, Mass., Arnold & Porter, Washington, D.C., Shook, Hardy & Bacon, Kansas City, Mo., and Jones, Day, Reavis & Pogue, Washington, D.C., were on brief, for Philip Morris, Inc., R.J. Reynolds Tobacco Co., The American Tobacco Co., Brown & Williamson Tobacco Corp. and Lorillard, Inc., amici curiae.

Richard P. Campbell, John A.K. Grunert, Timothy Wilton, Campbell and Associates, Professional Corp., Boston, Mass., and William H. Crabtree, Knoxville, Tenn., on brief, for Product Liability Advisory Council, Inc. and Motor Vehicle Manufacturers Ass'n of the U.S., Inc., amicus curiae.

Robert S. Potters with whom Daniel A. Shapiro and Nix & Potters, Boston, Mass., were on brief, for appellees.

Alan B. Morrison with whom Cornish F. Hitchcock, William B. Schultz, Matthew L. Meyers, Washington, D.C., and Scott D. Ballin were on brief, for American Cancer Society, American Heart Association, American Lung Association, American Public Health Association, and Public Citizen, amici curiae.

Before BOWNES, Circuit Judge, BROWN, [*] Senior Circuit Judge, and TORRUELLA, Circuit Judge.

JOHN R. BROWN, Senior Circuit Judge.

This interlocutory appeal presents one highly disputed issue: whether the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Sec. 1331 et seq. (the Act), preempts the Palmers' smoking and health related claims that challenge either the adequacy of the federal warning on cigarette packages or the propriety of Liggett's advertising and promotion of cigarettes. In deference to the congressional declaration that (i) cigarettes be labeled uniformly and (ii) a balance be struck between the priority given to tobacco commerce and to our national health policy, we hold that the Act does preempt the Palmers' state law claims, and reverse the decision of the District Court.

A Saga of Cigarette Smoking

Because the certified issue before us is on appeal from a motion to dismiss, we are limited to viewing the facts of the case only as alleged in the pleadings, interrogatory answers, and pre-trial submissions of the parties.

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Joseph C. Palmer died on August 26, 1980, at the age of 49, allegedly from lung cancer. The Palmers allege that Palmer smoked between three and four packs of Liggett's cigarettes per day until his death.

On August 19, 1983, Ann M. Palmer, individually and as administrator of the estate of her late husband, and her mother-in-law, Daphne S. Palmer, filed this diversity action in the District Court. In their amended complaint, the Palmers contended that liability should be imposed on Liggett because of its failure to warn adequately of the health consequences of cigarette smoking. The Palmers asserted causes of action for common law negligence, breach of warranty, under Mass.Gen.Laws, c. 106, Sec. 2-314 et seq., and violations of the Massachusetts Consumer Protection Act, Mass.Gen.Laws c. 93A. At bottom, the Palmers complained that Liggett negligently gave inadequate warnings about the dangers of cigarette smoking and that this negligence proximately caused Palmer's death.

In response, Liggett filed a motion to dismiss all inadequate warning claims on the ground that they were preempted by the Act. After a thorough review of the record, Judge Mazzone denied Liggett's motion to dismiss. The court concluded that "Congress [could not have] meant, by its silence on the issue of common law claim preemption, to do away with all means of obtaining compensation for those hurt by inadequate cigarette warnings in advertising." Palmer v. Liggett Group, Inc., 633 F.Supp. 1171, 1173 (D.Mass.1986). The District Court also relied heavily on the analysis contained in Judge Sarokin's opinion in the District Court decision of Cipollone v. Liggett Group, Inc., 593 F.Supp. 1146 (D.N.J.1984), since reversed, 789 F.2d 181 (3d Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987).

Because Judge Mazzone found the preemption issue to involve "a controlling question of law," 28 U.S.C. Sec. 1292(b), he certified sua sponte this issue for interlocutory appeal, which we have accepted. Upon application by Liggett to this court, the proceedings below have been stayed while this limited appeal comes to us.

The Act

The District Court, the defendants, and the plaintiffs agree that the issue of the Act's preemptive force controls the disposition of virtually the entire case. If the Labeling Act is found to preempt state law actions, either expressly or impliedly, the Palmers lose. If Congress did not intend for the Act to be so preemptive, Liggett loses the appeal. The line thus drawn, we proceed now to a discussion of how Congress constructed the Labeling Act.

In 1964, the Surgeon General released the now famous "Smoking and Health: Report of the Advisory Committee to the Surgeon General." That initial report was one of the first official, scientifically approved statements linking cigarette smoking to lung cancer, bronchitis, and emphysema. The public response was immediate and vocal; clearly, some form of governmental action was imminent.

In a rush to protect and inform its citizens, several states proposed and adopted mandatory warning labels for cigarette packages to be sold in their individual states. 1 Given the potential maze of conflicting state regulations, Congress stepped in in 1965 to set up a uniform, nationally consistent system of warning labels for cigarettes. Further, it did so with the express intention of striking a balance between its concern for the national health policy of smoking education and its protection of the trade and commerce aspects of the tobacco industry. 2

After much internal and external debate, with classic confrontations between North and South, rural and urban states, together

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with vigorous lobbying by all forms of interested groups and businesses, the members of Congress negotiated a hard-fought compromise with the passage of the Federal Cigarette Labeling and Advertising Act, Pub.L. No. 89-92, 79 Stat. 282 (1965), codified as amended by the Public Health Cigarette Smoking Act of 1969, Pub.L. No. 91-222, 84 Stat. 87 (1970) at 15 U.S.C. Secs. 1331 et seq. In 1984, Congress further amended the Act by the Comprehensive Smoking Education Act, Pub.L. No. 98-474, 98 Stat. 2200 (1984). 3

This case, like so many we are called on to decide, turns on a question of statutory construction and interpretation. It is by definition a frustrating task, for if the law's meaning is truly "plain" enough or its effect clear-cut enough, there is no need for us to pronounce what we discern its meaning or effect to be. In cases such as this one, however, we must marshal support from the ready arsenal of the canons of statutory construction to declare soberly the deconstructed meaning of the omission by Congress of a savings clause, "because Congress knew how to provide a savings clause when it wanted to." We are expected to "discover" the true congressional intent of the phrase "No requirement shall be imposed under State law," yet we are limited to contradictory, even self-serving language from the statute's legislative history to discern that intent.

Nevertheless, that is the task assigned to us, and having acknowledged the inherently unsatisfying nature of it, we come now to the actual words of the law. In some ways, the Act is more straightforward in declaring its intent and effect than are many other analogous regulatory schemes. The Act contains three sections that address the preemption issue raised here. First is Sec. 1331, the Act's declaration of policy and purpose.

It is the policy of the Congress, and the purpose of this chapter, to establish a comprehensive Federal program to deal 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 inclusion 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, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.

15 U.S.C. Sec. 1331. 4

Second, Sec. 1333 prescribes the exact label of warning to be placed on each package of cigarettes. 5 The language imposing this mandatory warning is as follows:

It shall be unlawful for any person to manufacture, import, or package for sale or distribution within the United States any cigarettes the package of which fails to bear the following statement: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health." Such statement shall be located in a conspicuous place on every cigarette package and shall appear in conspicuous and legible type in contrast by typography, layout, or color with other printed matter on the package.

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15 U.S.C. Sec. 1333. 6

Finally, Sec. 1334 sets out the section most relevant to our preemption analysis--the preemption section:

(a) No statement relating to smoking and health, other than the statement required by section 1333 of this title,...

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