The Filling Station, Inc. v. Vilsack, No. 4-00-CV-90271.

CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa
Writing for the CourtPratt
Citation174 F.Supp.2d 942
PartiesTHE FILLING STATION, INC., Bill's, World, Inc., Bradley Alan Joslin, Inc., and Beck's Oil Company of Illinois, Plaintiffs, v. Thomas VILSACK, in his official capacity as Governor of the State of Iowa, and Stephen C. Gleason, in his official capacity as Director of the Iowa Department of Public Health, Defendants.
Decision Date16 April 2001
Docket NumberNo. 4-00-CV-90271.
174 F.Supp.2d 942
THE FILLING STATION, INC., Bill's, World, Inc., Bradley Alan Joslin, Inc., and Beck's Oil Company of Illinois, Plaintiffs,
v.
Thomas VILSACK, in his official capacity as Governor of the State of Iowa, and Stephen C. Gleason, in his official capacity as Director of the Iowa Department of Public Health, Defendants.
No. 4-00-CV-90271.
United States District Court, S.D. Iowa, Central Division.
April 16, 2001.

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Steven L. Nelson, Des Moines, Iowa, for plaintiffs.

Dennis W. Johnson, Des Moines, Iowa, for Defendants.

MEMORANDUM OPINION AND ORDER

PRATT, District Judge.


This lawsuit is about the constitutionality of Iowa Code § 142A.6(6), which prohibits "[a] manufacturer, distributor, wholesaler, retailer, or distributing agent or agent thereof" from giving away "cigarettes or tobacco products" or providing "free articles, products, commodities, gifts, or concessions in any exchange for the purchase of cigarettes or tobacco products." The Plaintiffs in this case are retailers who hold permits to sell tobacco products in the State of Iowa. They sued Defendants, Thomas Vilsack, the Governor of Iowa, and Stephen Gleason, the Director of the Iowa Public Health Department, to have § 142A.6(6) declared null and void and to keep them from enforcing or taking any action under it. In their Complaint, Plaintiffs contend that § 142A.6(6)(a) is preempted by the Federal Cigarette Labeling and Advertising Act ("FCLAA"), 15 U.S.C. § 1331 et seq., (2) violates their First Amendment rights, (3) violates their rights under the Equal Protection and Due Process Clauses, and (4) violates federally protected rights that they may assert under 42 U.S.C. § 1983. The lawsuit is now before the Court on Plaintiffs' motion for summary judgment on their preemption and First Amendment claims and Defendants' motion for summary judgment on all of Plaintiffs' claims.1 Finding no real factual dispute, the Court holds that § 142A.6(6) is preempted by the FCLAA.

I. BACKGROUND

The FCLAA governs what tobacco companies must do and must not do in their effort to sell cigarettes to the public. The stated purpose of the FCLAA is as follows:

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 about any adverse health effects of cigarette smoking by inclusion of warning notices on each package of cigarettes and in each advertisement 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

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with respect to any relationship between smoking and health.

15 U.S.C. § 1331. In furtherance of this purpose, the FCLAA mandates a Surgeon General's Warning2 on cigarette packages, advertisements, and outdoor billboards, and it prohibits advertising "cigarettes and little cigars on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission." 15 U.S.C. §§ 1333, 1335.

The FCLAA also establishes systems of reporting information about the tobacco industry to Congress and a program designed to inform the public about the dangers of smoking. In one system of reporting, it requires persons who manufacture, package, or import cigarettes to annually provide a list of ingredients, anonymously, to the Secretary of Health and Human Services who then reports to Congress. 15 U.S.C. § 1335a. In another system of reporting, it requires the Federal Trade Commission (FTC) to report to Congress on "(1) current practices and methods of cigarette advertising and promotion, and (2) such recommendations for legislation as it may deem appropriate." 15 U.S.C. § 1337. In an effort to educate the public about the dangers of smoking, the FCLAA provides that the Secretary of Health and Human Services shall establish a program and it creates an interagency committee to help carry out that program. 15 U.S.C. § 1341.

The FCLAA then, in turn, protects the tobacco industry from further requirements or regulations:

(a) Additional statements

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) State regulations

No 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.

15 U.S.C. § 1334. The scope of this preemption provision is at the heart of the dispute here. More specifically, the debate is over the reach of the word "promotion."

The Iowa act in question, enacted May 15, 2000, is without title but described as "relating to tobacco use prevention and control." Iowa House File 2565, to be codified as Iowa Code § 142A.1 et seq. ("Iowa Code § 142A.1 et seq." or the "Iowa Act"). The disputed section, § 142A.6(6), states, in relevant part, as follows:

a. A manufacturer, distributor, wholesaler, retailer, or distributing agent or agent thereof shall not give away cigarettes or tobacco products.

b. A manufacturer, distributor, wholesaler, retailer, or distributing agent or agent thereof shall not provide free articles, products, commodities, gifts, or concessions in any exchange for the purchase of cigarettes or tobacco products.

At the hearing on this matter, the Attorney General's office informed the Court that it had agreed not to enforce

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§ 142A.6(6) until the Court ruled on whether it is constitutional.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." An issue is "genuine," "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if the dispute over it might affect the outcome of the suit under the governing law. Id. Demonstrating the absence of a genuine issue of material fact is the burden of the moving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

III. DISCUSSION

The Supremacy Clause of the United States Constitution provides that the laws of the United States are "the supreme Law of the Land" and that any law that conflicts with those laws is null and void. See U.S. Const. Art. VI, cl. 2; McCulloch v. Maryland, 17 U.S. 316, 427, 4 Wheat. 316, 4 L.Ed. 579 (1819). Whether simply looking at the plain language or going beyond the plain language, the Court thinks that the FCLAA preempts Iowa Code § 142A.6(6). The Court therefore does not address the remaining claims in Plaintiffs' Complaint. The Court will, however, allow the remaining portions of the Iowa Act to stand.

A. The Presumption Against Preemption

The Court recognizes that a presumption against preemption applies here. Although the Supreme Court was somewhat fractured in Cipollone v. Liggett Group, Inc., a majority of the justices did endorse a presumption against preemption in dealing with the FCLAA. 505 U.S. 504, 523, 532, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (stating that it must start with an assumption that the federal act does not supersede the historic police powers of the states unless that was the clear and manifest purpose of Congress); Shea v. Esensten, 208 F.3d 712, 719 (8th Cir.2000) (same). Plaintiffs nevertheless argue that the presumption should not apply in light of the Court's more recent language in United States v. Locke, 529 U.S. 89, 108, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000) (interpreting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)) that the presumption against preemption is not "triggered when the State regulates in an area where there has been a history of significant federal presence" and the Court's acknowledgment in F.D.A. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 137, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) that Congress has legislated in the area of tobacco six times since 1965. The First Circuit dealt with this very argument in Consolidated Cigar Corp. v. Reilly, 218 F.3d 30, 38-39 (1st Cir.2000). In that case, the court held that Congress's long-established presence in the field of maritime commerce, dealt with in Locke, 529 U.S. at 108, 120 S.Ct. 1135 (noting that in both that case and in Rice the Court dealt with a field in which Congress had legislated in since the earliest days of the Republic) was distinguishable from it's relatively recent regulation of the

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tobacco industry. See Consolidated Cigar Corp., 218 F.3d at 38-39. This Court agrees with the First Circuit and will also apply the presumption against preemption with full force. Id. at 39.

The Court also recognizes the Supreme Court's related admonition in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers' Ins. Co., 514 U.S. 645, 655-56, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). In Traveler's Ins., the Court cautioned against adopting an "uncritical literalism" that could lead a court "to read Congress's words of limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with generality." Id.; see also Federation of Advertising Industry Representatives, Inc....

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