U.S. Smokeless Tobacco Mfg. Co. v. City Of N.Y.

• Decision Date: 23 March 2010
• Docket Number: No. 09 Civ. 10511(CM).,09 Civ. 10511(CM).
• Citation: 703 F.Supp.2d 329
• Parties: U.S. SMOKELESS TOBACCO MANUFACTURING COMPANY, LLC and U.S. Smokeless Tobacco Brands, Inc., Plaintiffs,v.CITY OF NEW YORK, Defendant.
• Court: U.S. District Court — Southern District of New York

703 F.Supp.2d 329

U.S. SMOKELESS TOBACCO MANUFACTURING COMPANY, LLC and U.S. Smokeless Tobacco Brands, Inc., Plaintiffs,v.CITY OF NEW YORK, Defendant.

No. 09 Civ. 10511(CM).

United States District Court S.D. New York.

March 23, 2010.

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David Boies, II, Edward John Normand, Boies, Schiller & Flexner LLP, Armonk, NY, for Plaintiff.

Michelle L. Goldberg, Sherrill Kurland, NYC Law Department, Office of the Corporation Counsel, New York, NY, for Defendant.

MEMORANDUM DECISION AND ORDER DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION

McMAHON, District Judge.

INTRODUCTION

Plaintiffs, manufacturers and distributors of smokeless tobacco, commenced this action on December 28, 2009, challenging a recently enacted New York City law restricting the sale of flavored tobacco. Plaintiffs argue that New York's law is preempted by the federal Family Smoking Prevention and Tobacco Control Act (“FSPTCA”) and violates the Commerce Clause and Due Process Clause of the Fourteenth Amendment of the United States Constitution,

Plaintiffs filed the motion for a preliminary injunction on January 26, 2010, on the sole ground that the city law is preempted by the FSPTCA. For the reasons set forth below, plaintiffs' motion for a preliminary injunction is denied.

CONSTITUTIONAL STANDARD

I. The Supremacy Clause

The “Constitution establishes a system of dual sovereignty between the States and the Federal Government,” in order to “reduce the risk of tyranny and abuse from either front” Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). This balance of power translates into sovereignty for the states that is “concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause.” Tafflin v. Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990).

The Supremacy Clause, Article VI, Clause 2 of the Constitution, provides that the laws of the United States “shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. As the Supreme Court has explained, this clause represents an “extraordinary” grant of power, and gives the Federal Government “a decided advantage” in the dynamic between state and federal sovereigns. Gregory, 501 U.S. at 460, 111 S.Ct. 2395.

However, the power vested in the Federal Government is not limitless. “The supremacy of the laws is attached to those only, which are made in pursuance of the constitution.” 3 J. Story Commentaries on the Constitution of the United States § 1831, at 694 (1833). Actions of the Federal Government “which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies,” are not “the supreme law of the land. They will be merely acts of usurpation, and will deserve to be treated as such.” Id. The Constitution confers upon Congress “not all governmental powers, but only discrete, enumerated ones,” Printz v. United States, 521 U.S. 898, 919, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997), and the Tenth Amendment reserves to the states, “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it.” U.S. Const. amend. X. Put otherwise, as the Framers observed, the Constitution by design conveys “few and defined” powers to the Federal Government, while designating “numerous and indefinite” powers to the states. The Federalist No. 45, at 237-38 (James Madison) (M. Beloff ed., 2d ed. 1987).

“The regulation of health and safety matters is primarily, and historically, a matter of local concern,” and therefore among those powers reserved to the states. Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 719, 105 S.Ct. 2371, 85 L.Ed.2d 714 (1985). Throughout history, the “[s]tates traditionally have had great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985) (internal quotations omitted) overruled in part on other grounds by Kentucky Ass'n of Health Plans, Inc. v. Miller, 538 U.S. 329, 123 S.Ct. 1471, 155 L.Ed.2d 468 (2003).

II. Preemption

Preemption is the vehicle used to operationalize Congress' grant of power under the Supremacy Clause. It applies with equal force to federal regulations promulgated by agencies cloaked with authority by Congress as to statutes directly by the legislature, including the imposition of damages under state law. Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 152-53, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982); Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000); Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258 (1981) (same).

Every instance of preemption falls into one of two overarching categories: express or implied. Express preemption involves an express statement by Congress that prohibits state and local governments from enacting laws in a specific area. As the Supreme Court has observed, “when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.” English v. Gen. Electric Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990). For example, in 1976, Congress amended the Federal Food, Drug, and Cosmetic Act (“FDCA”) to add an express preemption provision (codified at 21 U.S.C. § 360k(a)). Section 360k(a) prohibits states from regulating medical devices, stating that:

Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement-

(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and

(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.

21 U.S.C. § 360k(a); see also

Wyeth v. Levine, --- U.S. ----, 129 S.Ct. 1187, 1196, 173 L.Ed.2d 51 (2009) (discussing preemption under the FDCA).

While section 360k(a) is very broad, Congress will sometimes narrow the scope of an express preemption provision by carving out particular areas for state and local regulation. For example, in addition to preempting state regulation of medical devices under section 360k(a), the FDCA expressly preempts state requirements concerning over-the-counter medications and cosmetics (codified at 21 U.S.C. § 379r(e)). However, the FDCA preserves state product liability actions relating to those medications and cosmetics. See Wyeth, 129 S.Ct. at 1200 n. 8 ( citing 21 U.S.C. §§ 379r(e), 379s(d) (“Nothing in this section shall be construed to modify or otherwise affect any action or the liability of any person under the product liability law of any State.”)). This type of carve out is called a “saving clause,” because it saves certain powers of the states. See id. at 1196.

By contrast, implied preemption, which is also referred to as “conflict preemption,” occurs in one of two circumstances-either “where it is impossible for a private party to comply with both state and federal law” or where state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372-73, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (internal quotations omitted). Under the “purposes and objectives” inquiry, the critical question is not whether the state and federal governments share a common goal, but rather what effect the state law has on the federal statutory scheme-whether the state law interferes with a method the federal law uses to promotes its goal. Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987). The fact that state laws “impose liability over and above that authorized by federal law,” without more, does not automatically mean that the state laws are preempted. California v. ARC America Corp., 490 U.S. 93, 105, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) ( citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 257-58, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984); California v. Zook, 336 U.S. 725, 736, 69 S.Ct. 841, 93 L.Ed. 1005 (1949)).

One of the most oft-cited examples of the so-called “purposes and objectives preemption” is Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). In that case, the Supreme Court applied the doctrine to the National Traffic and Motor Vehicle Safety Act of 1966, holding that certain state common law tort actions were preempted by the federal law because the state actions were an “obstacle” frustrating congressional intent. Id. at 886, 120 S.Ct. 1913. The Court explained that the state actions frustrated congressional intent because while the federal law allowed car manufacturers to choose between a range of options when equipping their vehicles with passive restraints (e.g., automatic belts or airbags), certain state law tort actions effectively eliminated that choice (part of the purpose of the law) by always requiring the installation of airbags. Id. at 881-82, 120 S.Ct. 1913.

The most far-reaching form of conflict pre-emption is “field preemption.” See English, 496 U.S. at 79-80 n. 5, 110 S.Ct. 2270 (field preemption can be considered a form of conflict preemption).¹ Field preemption is inferred in cases where federal law is so pervasive that it leaves “no room for supplementary state regulation”-where the federal law has fully occupied the field of regulation. Hillsborough County, Fla., 471 U.S. at 713, 105 S.Ct. 2371 (internal quotations omitted); see also Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 604-05, 111 S.Ct. 2476, 115 L.Ed.2d 532 (1991) (citing cases); English, 496 U.S. at 79, ...