Cipollone v. Liggett Group, Inc., Nos. 85-5073

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore HUNTER, SLOVITER; JAMES HUNTER, III
Citation789 F.2d 181
Parties, Prod.Liab.Rep.(CCH)P 11,135 Antonio CIPOLLONE, individually and as Executor of the Estate of Rose D. Cipollone v. LIGGETT GROUP, INC., a Delaware Corporation; Philip Morris Incorporated, a Virginia Corporation and Loew's Theatres, Inc., a New York Corporation. Appeal of LIGGETT GROUP, INC., Appellant in 85-5073. Appeal of LOEW'S THEATRES, INC., Appellant in 85-5074.
Docket Number85-5074,Nos. 85-5073
Decision Date09 May 1986

Page 181

789 F.2d 181
54 USLW 2528, Prod.Liab.Rep.(CCH)P 11,135
Antonio CIPOLLONE, individually and as Executor of the
Estate of Rose D. Cipollone
v.
LIGGETT GROUP, INC., a Delaware Corporation; Philip Morris
Incorporated, a Virginia Corporation and Loew's
Theatres, Inc., a New York Corporation.
Appeal of LIGGETT GROUP, INC., Appellant in 85-5073.
Appeal of LOEW'S THEATRES, INC., Appellant in 85-5074.
Nos. 85-5073, 85-5074.
United States Court of Appeals,
Third Circuit.
Argued Feb. 13, 1986.
Decided April 7, 1986.
As Amended April 18, 1986.
Rehearing and Rehearing In Banc
Denied May 9, 1986.

Page 183

Alan S. Naar, Paul A. Rowe, Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein, Woodbridge, N.J., for Liggett Group, Inc.

Barry L. Shapiro, Charles J. Walsh, Sills Beck Cummis Zuckerman Radin Tischman & Epstein, Newark, N.J., for Loew's Theatres, Inc.

Michael J. Vassalotti, Brown, Connery, Kulp, Wille, Purnell & Green, Camden, N.J., for Philip Morris Inc.

Marc Z. Edell (argued), Cynthia A. Walters, Porzio, Bromberg & Newman, P.C., Morristown, N.J., (Alan M. Darnell, Wilentz, Goldman & Spitzer, Woodbridge, N.J., David J. Novack, Budd, Larner, Kent, Gross, Picillo, Rosenbaum, Greenberg & Sade, Short Hills, N.J., of counsel), for Rose D. Cipollone and Antonio Cipollone.

Paul M. Bator (argued), Cambridge, Mass., for appellants.

Before HUNTER, SLOVITER, Circuit Judges, and GILES, * District Judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This case, before the court on the district court's certification pursuant to 28 U.S.C. Sec. 1292(b) (1982), presents the question whether the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. Secs. 1331-1340 (1982) (the "Act"), preempts any or all of the state common law claims brought by appellee Antonio Cipollone and his wife Rose in the district court. Several of the claims in the Cipollones' complaint concern the alleged failure of the defendants, Liggett Group, Inc., Philip Morris Incorporated, Loews Corporation, Loew's Theatres, Inc. ("Lorillard"), to provide an adequate warning of the dangers of the cigarettes that they manufactured and sold. Because these claims implicate the legislatively mandated warning provided in section 1333 of the Act, the answers of Liggett Group, Philip Morris, and Lorillard each included a defense based on the preemptive effect of the Act. The Cipollones responded by filing a motion to strike the preemption defenses. Lorillard, later joined by Philip Morris, then moved for judgment on the pleadings pursuant to Federal Rule Civil Procedure 12(c). Holding that the Act preempted none of the Cipollones' claims, the district court granted the Cipollones' motion to strike the defenses and denied the motion for judgment on the pleadings. Cipollone v. Liggett Group, Inc., 593 F.Supp. 1146, 1171 (D.N.J.1984). On January 21, 1984, this court granted appellants Lorillard and Liggett Group permission to appeal. 1 Because we disagree with the district court's conclusion concerning the preemptive effect of the Act, we will reverse the district court's grant of the motion to strike and will remand the case for further proceedings.

I.

A. The Complaint

In their complaint, Rose and Antonio Cipollone alleged that Mrs. Cipollone developed lung cancer as a result of smoking cigarettes manufactured and sold by appellants. The complaint, which was originally filed on August 1, 1983, further averred that Mrs. Cipollone began smoking in 1942 and developed lung cancer as a result of her smoking. Mrs. Cipollone died in October 1984, but her husband has continued prosecuting this action, individually and as executor of his wife's estate. Mr. Cipollone

Page 184

is therefore the sole appellee in this case.

As observed by the district court, the fourteen-count complaint sets forth claims based on strict liability (Counts 2, 3, and 9), negligence (Counts 4 and 5), breach of warranty (Count 7), and intentional tort (Counts 6 and 8). The Cipollones claimed that the defendants' cigarettes were unsafe and defective (Count 2) and that defendants are subject to liability for their failure to warn of the hazards of cigarette smoking on the basis of negligence (Count 4) or strict liability (Count 3). In addition, the Cipollones asserted, defendants negligently (Count 5) or intentionally (Count 6) advertised their products in a manner that neutralized the warnings actually provided, warnings made meaningless by the addiction created by cigarettes (Count 9). Finally, the complaint stated that the defendants ignored, failed to act upon, and conspired to deprive the public of medical and scientific data reflecting the dangers associated with cigarettes (Count 8). 2

B. The Federal Cigarette and Advertising Labeling Act

The Federal Cigarette Labeling and Advertising Act, originally enacted in 1965, was a response to a growing awareness among members of federal as well as state government that cigarette smoking posed a significant health threat to Americans. The original Act required the following warning label on cigarette packages: "Caution: Cigarette Smoking May Be Hazardous to Your Health." 15 U.S.C. Sec. 1333 (1970). Congress changed this warning, by amendment to the Act in 1969, to the following: "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health." 15 U.S.C. Sec. 1333 (1976). 3 The Act, as amended in 1970, expressly stated the policy behind the required warning:

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 (1982). 4

The Act also contains a preemption provision, which provides that

(a) No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.

(b) No requirement or prohibition based on smoking and health shall be

Page 185

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.

15 U.S.C. Sec. 1334 (1982). Confronted with this provision, the district court did not question that the Act prohibits state legislatures from requiring a warning on cigarette packages that alters that provided in section 1333. Nevertheless, after a comprehensive analysis of the Act, the court concluded that section 1334 does not preempt state common law claims such as those that the Cipollones have asserted.

II.

A. Preemption Principles

The United States Supreme Court has identified several principles for ascertaining congressional intent to preempt state authority. To begin, Congress may preempt state law by express statement. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). Without the aid of express language, a court may find intent to preempt in two general ways. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984). First, a court may determine that Congress intended "to occupy a field" in a given area

because "[t]he scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it," because "the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject," or because "the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose."

Fidelity Federal Savings & Loan Association v. De la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)). Second, in those instances where Congress has not wholly superceded state regulation in a specific area, state law is preempted "to the extent that it actually conflicts with federal law." Pacific Gas & Electric Co. v. Energy Resources Conservation & Development Commission, 461 U.S. 190, 204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1982). The Court has stated that such conflict arises when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 1217-18, 10 L.Ed.2d 248 (1963), or where state law "stands as...

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201 practice notes
  • US v. Atlas Minerals and Chemicals, Inc., Civ. A. No. 91-5118.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 3 Agosto 1992
    ...at 998, and if it is clear that there are no circumstances under which the defense could succeed. See Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188 (3d Cir.1986); Hardage, 116 F.R.D. at 463; Geppert Bros., 638 F.Supp. at B. The Availability of Affirmative Defenses Under CERCLA In orde......
  • Philip Morris Inc. v. Harshbarger, Nos. 97-8022
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Junio 1997
    ...the hazards of cigarette smoking and protecting the interests of [the] national economy.' " Id. (quoting Cipollone v. Liggett Group, Inc., 789 F.2d 181, 187 (3d Cir.1986)) (alteration ours). It now appears, however, that in Palmer we overstated Congress' purposes evinced in § On review of t......
  • Carlisle v. Philip Morris, Inc., No. 3-89-175-CV
    • United States
    • Court of Appeals of Texas
    • 6 Febrero 1991
    ...We will briefly summarize the history and holdings of each of those cases, in chronological order. 1. Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3rd Cir.1986) (Cipollone I), rev'g 593 F.Supp. 1146 (D.N.J.1984), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), on reman......
  • Cipollone v. Liggett Group, Inc, No. 90-1038
    • United States
    • United States Supreme Court
    • 8 Octubre 1991
    ...511 The Court of Appeals accepted an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and reversed. Cipollone v. Liggett Group, Inc., 789 F.2d 181 (CA3 1986). The court rejected respondents' contention that the federal Acts expressly pre-empted common law actions, but accepted their co......
  • Request a trial to view additional results
201 cases
  • US v. Atlas Minerals and Chemicals, Inc., Civ. A. No. 91-5118.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • 3 Agosto 1992
    ...at 998, and if it is clear that there are no circumstances under which the defense could succeed. See Cipollone v. Liggett Group, Inc., 789 F.2d 181, 188 (3d Cir.1986); Hardage, 116 F.R.D. at 463; Geppert Bros., 638 F.Supp. at B. The Availability of Affirmative Defenses Under CERCLA In orde......
  • Philip Morris Inc. v. Harshbarger, Nos. 97-8022
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 6 Junio 1997
    ...the hazards of cigarette smoking and protecting the interests of [the] national economy.' " Id. (quoting Cipollone v. Liggett Group, Inc., 789 F.2d 181, 187 (3d Cir.1986)) (alteration ours). It now appears, however, that in Palmer we overstated Congress' purposes evinced in § On review of t......
  • Carlisle v. Philip Morris, Inc., No. 3-89-175-CV
    • United States
    • Court of Appeals of Texas
    • 6 Febrero 1991
    ...We will briefly summarize the history and holdings of each of those cases, in chronological order. 1. Cipollone v. Liggett Group, Inc., 789 F.2d 181 (3rd Cir.1986) (Cipollone I), rev'g 593 F.Supp. 1146 (D.N.J.1984), cert. denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987), on reman......
  • Cipollone v. Liggett Group, Inc, No. 90-1038
    • United States
    • United States Supreme Court
    • 8 Octubre 1991
    ...511 The Court of Appeals accepted an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), and reversed. Cipollone v. Liggett Group, Inc., 789 F.2d 181 (CA3 1986). The court rejected respondents' contention that the federal Acts expressly pre-empted common law actions, but accepted their co......
  • Request a trial to view additional results

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