Brown v. Brown & Williamson Tobacco Corp.

Decision Date14 February 2007
Docket NumberNo. 06-30311.,No. 06-30130.,06-30130.,06-30311.
Citation479 F.3d 383
PartiesLouana BROWN; Randy Friedrich, Plaintiffs-Appellees, v. BROWN & WILLIAMSON TOBACCO CORPORATION; et al., Defendants, Brown & Williamson Tobacco Corporation, Defendant-Appellant. Jack Sullivan; Jeffrey Iguess; Keith Songer; Lester Joseph, Jr., Plaintiffs-Appellees, v. Philip Morris USA Inc., Defendant, Philip Morris USA Inc., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

James B. Doyle, Law Offices of James B. Doyle, Lake Charles, LA, for Brown and Friedrich.

Vance Arnold Gibbs, Mark Andrew Marionneaux, Kean, Miller, Hawthorne, D'Armond, McGowan & Jarman, Baton Rouge, LA, William L. Durham, II, King & Spalding, Atlanta, GA, for Brown & Williamson.

Kenneth E. Badon, The Badon Law Firm, Lake Charles, LA, Jennifer Ann Jones, Jones Law Firm, Cameron, LA, for Sullivan, Iguess, Songer and Joseph.

Charles F. Gay, Jr., Deborah B. Rouen, Lara Elizabeth White, Adams & Reese, New Orleans, LA, Murray R. Garnick (argued), James Miller Rosenthal, Arnold & Porter, Washington, DC, Patrick A. Juneau, Jr., The Juneau Firm, Lafayette, LA, for Philip Morris USA, Inc.

Appeals from the United States District Court for the Western District of Louisiana.

Before JOLLY, HIGGINBOTHAM and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In this appeal, relating broadly to the marketing of "Lights" cigarettes, we consider the pre-emptive scope of the Federal Cigarette Labeling and Advertising Act ("the Labeling Act"), 15 U.S.C. § 1331 et seq. The appellants ("Manufacturers"), Brown & Williamson Tobacco Corporation ("Brown & Williamson") and Philip Morris, Inc. ("PM USA"), challenge the district court's partial denial of their motion for summary judgment. Manufacturers contend that the district court erred when it ruled that the Labeling Act does not expressly pre-empt the Plaintiffs' state law claims for redhibition, breach of express and implied warranties, and fraudulent misrepresentation and concealment. Furthermore, they argue that the district court erred when it declined to apply the doctrine of implied conflict pre-emption to the Plaintiffs' state law claims. We hold that the district court erred in finding that Plaintiffs' claims, as presented at summary judgment, are not expressly pre-empted by the Labeling Act. Consequently we reverse and remand, directing the district court to enter a judgment dismissing all claims with prejudice.


On March 28, 2003, Plaintiffs filed their Petition for Damages against PM USA, asserting claims under the Louisiana Unfair Trade Practices and Consumer Protection Act ("LUTPA") and for redhibition, breach of express and implied warranties, and fraudulent misrepresentation. Plaintiffs claimed that they were deceived by the company's marketing into believing that smokers of light cigarettes consume lower tar and nicotine, and that light cigarettes are safer than "regular cigarettes." On April 24, 2003, Plaintiffs filed their Petition for Damages against Brown & Williamson, alleging the same claims. Plaintiffs seek to represent a worldwide class of persons who purchased at least a single pack of defendants' light cigarettes ("Lights") in Louisiana since 1971. They seek to recover "economic damages" as measured by "the difference between the value the product would have had at the time of sale if the representations about them had been true and the actual value to the consumer of the product in question, considering the true nature of the product." Plaintiffs do not claim that they have been injured by smoking and do not seek to recover for any illnesses allegedly caused by Lights.

The Manufacturers removed the respective cases to federal court, and moved for summary judgment, arguing that Plaintiffs' claims are barred by express and implied pre-emption. The Manufacturers also argued that the LUPTA claims were barred by La.Rev.Stat. Ann. § 51:1406(4), which exempts from liability under the LUPTA "[a]ny conduct that complies with section 5(a)(1) of the Federal Trade Commission Act [15 U.S.C. 45(a)(1)]."

On August 13, 2005, the district court granted summary judgment with respect to Plaintiffs' LUTPA claim against PM USA, but rejected PM USA's express pre-emption arguments with respect to the remaining claims. On September 14, 2005, the district court entered the same order with respect to Brown & Williamson. The Manufacturers moved for reconsideration, arguing that the district court had not addressed their conflict pre-emption argument and that reconsideration was appropriate in the light of Watson v. Philip Morris Cos., 420 F.3d 852 (8th Cir.2005). On December 2, 2005, the court denied reconsideration and certified its pre-emption rulings for interlocutory appeal under 28 U.S.C. § 1292(b). We granted Manufacturers' petitions for review and consolidated the cases.

This appeal presents questions of law that are reviewed de novo. Hart v. Bayer Corp., 199 F.3d 239, 243 (5th Cir.2000) ("This court reviews de novo a district court's conclusions on questions of law."); Frank v. Delta Airlines Inc., 314 F.3d 195, 197 (5th Cir.2002) ("Preemption by federal law of a common law cause of action is a question of law reviewed de novo.").


The Manufacturers' pre-emption claims must be considered against the backdrop of a long history of federal cigarette advertising regulation.1 In 1964, the Surgeon General issued a report concluding that smoking causes lung cancer. Congress responded by enacting the Labeling Act through which it sought to "establish a comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health." 15 U.S.C. § 1331. The Act had two stated goals: first, to provide the public with adequate information about "any adverse health effects of cigarette smoking by inclusion of warning notices on each package . . . and in each advertisement"; and second, to prevent the national economy from being "impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations . . . ." Id. To promote these dual goals, Congress specified the precise warning that manufacturers must place on all packages and forbade any other state regulation requiring any other "statement relating to smoking and health . . . on any cigarette package." Pub.L. No. 89-92 § 5(a). In 1969, Congress amended the Labeling Act to "expand[ ] the pre-emption provision with respect to the States, and at the same time, . . . allow[ ] the FTC to regulate cigarette advertising." This amendment precluded states from imposing any "requirement or prohibition based on smoking and health . . . with respect to the advertising or promotion of any cigarettes."

In 1966, the FTC developed its own testing method ("FTC method") and made it the official test for tar and nicotine level measurements. The test is conducted by a machine that smokes every cigarette in the same manner. Beginning in 1967, all advertised tar and nicotine yields had to be substantiated by the FTC method. The FTC is aware that the test method does not measure the actual amount of tar and nicotine that smokers receive, but has concluded that the test provides a reasonably standardized method of presenting tar and nicotine yields in a way that can be readily understood by the public. In 1970, the FTC accepted an agreement from the manufacturers, in lieu of rulemaking, that yield measurements be disclosed in all non-permanent advertising in a standardized form. The FTC has repeatedly reevaluated the FTC method, but has thus far chosen not to modify it because (1) epidemiological studies show that persons who smoke cigarettes with lower tar as measured by the FTC method are less likely to get smoking-related diseases than those smoking higher tar cigarettes; and (2) it concluded that the only way to avoid consumer confusion was to continue to rely on a single, uniform testing standard.

Since the adoption of the FTC method, the FTC has directed that any representations about tar and nicotine measurements must be substantiated by FTC method results. Following an enforcement action against a manufacturer for stating that certain brands were "lower" in tar when the claim was not substantiated by the FTC method, the FTC declared that it would permit use of descriptive terms, i.e., "light" or "low-tar," if their use was substantiated by FTC method results. The FTC has defined low tar cigarettes as those that measure 15 milligrams or less of tar, per the FTC method. In 1992, the FTC launched an investigation focused specifically on whether terms like "lights" or "low tar" were deceptive and should be banned and reaffirmed that such terms were not deceptive if substantiated by FTC method results. In 1997, the FTC reopened its investigation of whether the term "Lights" is deceptive to consumers and whether a new methodology should be adopted, but no conclusion has been reached. Despite the apparently acknowledged weaknesses in the FTC method, therefore, it remains the federal mandated standard for cigarette testing.


In the light of the FTC's extensive involvement in regulating cigarette advertising, the Manufacturers argue that the district court erred in finding that Plaintiffs' state law claims for redhibition, breach of express and implied warranties, and fraud are not expressly or impliedly pre-empted by the Labeling Act. Plaintiffs, relying primarily on the Supreme Court decision in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992), argue that the Labeling Act does not pre-empt all state common law claims. The treatment of this particular set of claims presents a question of first impression in this circuit.

The pre-emption provision of the Labeling Act provides that: "[n]o requirement or prohibition based on smoking and...

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