Philip Morris Inc. v. Harshbarger, Nos. 97-8022

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtCarol J. Bennett, James P. Jacobson, Ann Beimdiek Kinsella, D. Douglas Blanke, Attorneys for State of Minnesota, Hubert H. Humphrey III, Attorney General for State of Minnesota, St. Paul, MN, Grant Woods, Attorney General for State of Arizona, Phoeni
Citation122 F.3d 58
PartiesPHILIP MORRIS INCORPORATED, R.J. Reynolds Tobacco Company, Brown & Williamson Tobacco Corporation, and Lorillard Tobacco Company, Plaintiffs, Appellants, v. L. Scott HARSHBARGER, Attorney General of the Commonwealth of Massachusetts, and David H. Mulligan, Massachusetts Commissioner of Public Health, Defendants, Appellees. UNITED STATES TOBACCO COMPANY, Brown & Williamson Tobacco Corporation, Conwood Company, L.P., National Tobacco Company, L.P., The Pinkerton Tobacco Company, and Swisher International, Inc., Plaintiffs, Appellants, v. L. Scott HARSHBARGER, Attorney General of the Commonwealth of Massachusetts, and David H. Mulligan, Massachusetts Commissioner of Public Health, Defendants, Appellees. . Heard
Decision Date06 June 1997
Docket Number97-8023,Nos. 97-8022

Page 58

122 F.3d 58
PHILIP MORRIS INCORPORATED, R.J. Reynolds Tobacco Company,
Brown & Williamson Tobacco Corporation, and
Lorillard Tobacco Company, Plaintiffs, Appellants,
v.
L. Scott HARSHBARGER, Attorney General of the Commonwealth
of Massachusetts, and David H. Mulligan,
Massachusetts Commissioner of Public
Health, Defendants, Appellees.
UNITED STATES TOBACCO COMPANY, Brown & Williamson Tobacco
Corporation, Conwood Company, L.P., National Tobacco
Company, L.P., The Pinkerton Tobacco Company, and Swisher
International, Inc., Plaintiffs, Appellants,
v.
L. Scott HARSHBARGER, Attorney General of the Commonwealth
of Massachusetts, and David H. Mulligan,
Massachusetts Commissioner of Public
Health, Defendants, Appellees.
Nos. 97-8022, 97-8023.
United States Court of Appeals,
First Circuit.
Heard June 6, 1997.
Decided Aug. 18, 1997.

Page 60

Henry C. Dinger, P.C., with whom Cerise Lim-Epstein, Goodwin, Procter & Hoar, LLP, Boston, MA, Verne W. Vance, Jr., Foley, Hoag & Eliot, Herbert Dym, E. Edward Bruce, David H. Remes, Jarrett A. Williams, Jason A. Levine, and Covington & Burling, Washington, DC, were on brief for Philip Morris appellants.

George J. Skelly, with whom Thomas J. Dougherty, Skadden, Arps, Slate, Meagher & Flom LLP, A. Hugh Scott, Denise W. DeFranco, Choate, Hall & Stewart, Boston, MA, John L. Oberdorfer, Stuart M. Pape, G. Kendrick MacDowell, and Patton Boggs, L.L.P., Washington, DC, were on brief for United States Tobacco Company appellants.

Rebecca P. McIntyre, Assistant Attorney General, with whom Thomas A. Barnico, Assistant Attorney General and L. Scott Harshbarger, Attorney General, Boston, MA, were on brief for appellees.

Carol J. Bennett, James P. Jacobson, Ann Beimdiek Kinsella, D. Douglas Blanke, Attorneys for State of Minnesota, Hubert H. Humphrey III, Attorney General for State of Minnesota, St. Paul, MN, Grant Woods, Attorney General for State of Arizona, Phoenix, AZ, Winston Bryant, Attorney General for State of Arkansas, Daniel E. Lundgren, Attorney General for State of California, Richard Blumenthal, Attorney General for State of Connecticut, Hartford, CT, Robert A. Butterworth, Attorney General for State of Florida, Tallahassee, FL, Margery S. Bronster, Attorney General for State of Hawaii, Honolulu, HI, James E. Ryan, Attorney General for State of Illinois, Chicago, IL, Jeffrey A. Modisett, Attorney General for State of Indiana, Indianapolis, IN, Thomas J. Miller, Attorney General for State of Iowa, Des Moines, IA, J. Joseph Curran, Jr., Attorney General for State of Maryland, Baltimore, MD, Frank J. Kelley, Attorney General for State of Michigan, Lansing, MI, Mike Moore, Attorney General for State of Mississippi, Jackson, MS, Jeremiah W. (Jay) Nixon, Attorney General for State of Missouri, Jefferson City, MO, Joseph P. Mazurek, Attorney General for State of Montana, Helena, MT, Frankie Sue Del Papa, Attorney General for State of Nevada, Carson City, NV, Peter Verniero, Attorney General for State of New Jersey, Tom Udall, Attorney General for State of New Mexico, Santa Fe, NM, Dennis C. Vacco, Attorney General for State of New York, Brooklyn, NY, Heidi Heitkamp, Attorney General for State of North Dakota, Bismarck, ND, Betty D. Montgomery, Attorney

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General for State of Ohio, Columbus, OH, W.A. Drew Edmondson, Attorney General for State of Oklahoma, Oklahoma City, OK, Hardy Myers, Attorney General for State of Oregon, Salem, OR, D. Michael Fisher, Attorney General for State of Pennsylvania, Harrisburg, PA, Jeffrey B. Pine, Attorney General for State of Rhode Island, Providence, RI, Mark Barnett, Attorney General for State of South Dakota, Pierre, SD, Dan Morales, Attorney General for State of Texas, Austin, TX, Jan Graham, Attorney General for State of Utah, Salt Lake City, UT, William Sorrell, Attorney General for State of Vermont, Burlington, VT, Christine O. Gregoire, Attorney General for State of Washington, Olympia, WA, Darrell V. McGraw, Jr., Attorney General for State of West Virginia, Charleston, WV, James E. Doyle, Attorney General for State of Wisconsin, Madison, WI, Louise H. Renne, City Attorney, City of San Francisco, CA, Elizabeth D. Laporte, Chief of Special Litigation, City of San Francisco, CA, and Andrew Y.S. Cheng, Deputy City Attorney, City of San Francisco, CA, San Francisco, CA, on brief amici curiae.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

This appeal implicates the constitutionality of a Massachusetts statute requiring manufacturers of tobacco products to disclose the additives and nicotine-yield ratings of their products to the state's public health department. See Mass. Gen. Laws ch. 94, § 307B (the "Disclosure Act"). Plaintiffs-appellants, various manufacturers of cigarette and smokeless tobacco products (collectively, "the manufacturers"), 1 appeal the district court's grant of summary judgment in favor of defendants-appellees, the Attorney General of the Commonwealth of Massachusetts and the Massachusetts Public Health Commissioner (collectively, the "Commonwealth"). 2 The district court ruled that neither the Federal Cigarette Labeling and Advertising Act, as amended (the "FCLAA"), 15 U.S.C. §§ 1331-41, nor the Comprehensive Smokeless Tobacco Health Education Act of 1986 (the "Smokeless Tobacco Act"), 15 U.S.C. §§ 4401-08, preempts enforcement of the Disclosure Act. We affirm the district court's ruling, and hold that the Massachusetts Disclosure Act survives the manufacturers' preemption challenge.

I.

Prior Proceedings

On August 2, 1996, the day Massachusetts enacted the Disclosure Act, the cigarette manufacturers and smokeless tobacco manufacturers separately filed complaints in the district court claiming that the FCLAA and the Smokeless Tobacco Act preempt the state law by operation of the Supremacy Clause of the U.S. Constitution. Their complaints also allege that the Disclosure Act violates the Constitution's Commerce Clause, Full Faith and Credit Clause, Fourteenth Amendment Due Process Clause, and Takings Clause. The parties cross-moved for summary judgment in each case on the preemption claim only. 3 After denying the manufacturers' motions and granting the Commonwealth's motions, the district court amended its orders to certify the rulings for immediate appeal. See 28 U.S.C. § 1292(b). We accepted interlocutory review of the orders. This appeal, therefore, presents only the preemption issue.

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II.

Standard of Review

We review the district court's summary judgment ruling de novo. Grenier v. Vermont Log Bldgs., Inc., 96 F.3d 559, 562 (1st Cir.1996). 4 The ultimate determination whether federal law preempts the Massachusetts Disclosure Act presents a legal question subject to plenary review. See United States v. Rhode Island Insurers' Insolvency Fund, 80 F.3d 616, 619 (1st Cir.1996).

III.

Background

We begin our discussion with a review of the Massachusetts Disclosure Act and the allegedly preempting federal laws, the FCLAA and the Smokeless Tobacco Act. In so doing, we consider the statutes' respective texts along with the relevant historical and legislative contexts in which they were enacted. See Wood v. General Motors Corp., 865 F.2d 395, 404 (1st Cir.1988) ("In determining questions of preemption, a court 'must examine the [act's] language against the background of its legislative history and historical context.' " (quoting California Federal Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 284, 107 S.Ct. 683, 691, 93 L.Ed.2d 613 (1987))). Next, we set forth controlling preemption principles. Finally, we turn to the question whether the federal statutes in question either expressly or impliedly preempt the state statute. We note here that the Supreme Court's splintered decision in Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) heavily influences, and in part controls, much of our analysis.

A. The Disclosure Act

The Massachusetts Disclosure Act, the first state law of its kind, requires "any manufacturer of cigarettes, snuff or chewing tobacco sold in the commonwealth" to provide the Massachusetts Department of Public Health with a yearly report that lists for each brand of product (1) any added constituents "in descending order according to weight, measure, or numerical count," and (2) nicotine yield ratings "which shall accurately predict nicotine intake for average consumers." Mass. Gen. Laws ch. 94, § 307B. 5 The Disclosure Act permits public access to the information reported upon an appropriate finding by the department. Specifically, the Disclosure Act provides:

The nicotine yield ratings so provided, and any other such information in the annual reports with respect to which the department determines that there is a reasonable scientific basis for concluding that the availability of such information could reduce risks to public health, shall be public records.

Id.

The public health department may not reveal the information, however, "unless and until the attorney general advises that such disclosure would not constitute an unconstitutional taking." Id. Despite the apparent limitations on the public health department's ability to disclose reported information, the record evidence strongly indicates that Massachusetts officials intend to publicize the information. At oral argument before us, the Commonwealth avoided direct questions on this issue, asserting that the department's potential publication of the information was irrelevant for the purposes of preemption analysis. For the purposes of this case, we assume that the department will make the information publicly available at the first legal and practical opportunity.

By all indications, the purpose of the Disclosure Act is to further the public health and education in the use of tobacco products. Most tellingly, the law prefaces its requirements

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with the phrase, "For the purpose of protecting the public health." Mass. Gen....

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228 practice notes
  • Somes v. United Airlines, Inc., No. 98-CV-10183-MEL.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 11, 1999
    ...to supersede state laws must be `clear and manifest'" before a claim will be held impliedly preempted. Philip Morris v. Harshbarger, 122 F.3d 58, 86 (1st Cir.1997) (quoting English v. General Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (in turn quoting Rice, 331 U.S. a......
  • Philip Morris, Inc. v. Reilly, No. 00-2425.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 2, 2002
    ...of 1986, 15 U.S.C. § 4401-08. The district court held that there was no preemption, and we affirmed. Philip Morris, Inc. v. Harshbarger, 122 F.3d 58 (1st Cir.1997) [hereinafter Philip Morris Page 30 Thereafter, the tobacco companies moved for a preliminary injunction based on their constitu......
  • In re Pharm. Industry Average Wholesale Price Lit., No. 08-1056.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 23, 2009
    ...whether federal law preempts [state law] presents a legal question subject to plenary review." Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 (1st Cir.1997) (citing United States v. R.I. Insurers' Insolvency Fund, 80 F.3d 616, 619 (1st "A fundamental principle of the Constitution is tha......
  • Bronco Wine Company v. Jolly, No. S113136.
    • United States
    • United States State Supreme Court (California)
    • August 5, 2004
    ...the high court directs otherwise, we reject Bronco's view on this point. (See, e.g., Philip Morris Inc. v. Harshbarger (1st Cir. 1997) 122 F.3d 58, 85-86 [applying a "strong presumption against preemption" concerning state health and safety regulations and finding those regulations not to f......
  • Request a trial to view additional results
227 cases
  • Somes v. United Airlines, Inc., No. 98-CV-10183-MEL.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • January 11, 1999
    ...to supersede state laws must be `clear and manifest'" before a claim will be held impliedly preempted. Philip Morris v. Harshbarger, 122 F.3d 58, 86 (1st Cir.1997) (quoting English v. General Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (in turn quoting Rice, 331 U.S. a......
  • Philip Morris, Inc. v. Reilly, No. 00-2425.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • December 2, 2002
    ...of 1986, 15 U.S.C. § 4401-08. The district court held that there was no preemption, and we affirmed. Philip Morris, Inc. v. Harshbarger, 122 F.3d 58 (1st Cir.1997) [hereinafter Philip Morris Page 30 Thereafter, the tobacco companies moved for a preliminary injunction based on their constitu......
  • In re Pharm. Industry Average Wholesale Price Lit., No. 08-1056.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 23, 2009
    ...whether federal law preempts [state law] presents a legal question subject to plenary review." Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 (1st Cir.1997) (citing United States v. R.I. Insurers' Insolvency Fund, 80 F.3d 616, 619 (1st "A fundamental principle of the Constitution is tha......
  • Bronco Wine Company v. Jolly, No. S113136.
    • United States
    • United States State Supreme Court (California)
    • August 5, 2004
    ...the high court directs otherwise, we reject Bronco's view on this point. (See, e.g., Philip Morris Inc. v. Harshbarger (1st Cir. 1997) 122 F.3d 58, 85-86 [applying a "strong presumption against preemption" concerning state health and safety regulations and finding those regulations not to f......
  • Request a trial to view additional results

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