Altria v Good and SCOTUS' battle over preemption

SCOTUS's decision in Altria v. Good, handed down on Monday, is great news for friends of federalism. The Court held that the federal cigarette labeling act does not preempt private actions to enforce Maine's Unfair Trade Practices Act (MUTPA) against cigarette manufacturers who advertise that their cigarettes are less dangerous because they are "light" on tar. The 5-4 decision indicates that the tussle over preemption remains one of the most divisive issues before the Court and that Roberts and Alito (both dissenters in the 5-4 vote) are firm votes for preemption of state tort claims.

There is much to be said about the opinion, but I will highlight only two aspects that make Altria an especially important victory for federalism.

(1) As in Bates v. Dow Agrosciences, Justice Stevens managed to get a majority to resurrect the Rice v. Santa Fe Elevator presumption against preemption -- a presumption that most observers thought had been put on life support in Riegel v Medtronic. Scalia's majority in Riegel had simply ignored the presumption, finding the Preemption Clause in the Medical Devices Act to be unambiguous, but it is not obvious to me what made the preemption clause in Riegel so much clearer than the analogous clause in Altria. I guess that no legal concept is quite so ambiguous as the notion of "ambiguity."

(2) The Court based preemption on the formal proof required by state law rather than the effects of litigation on defendants' behavior. The majority's "express preemption" analysis turned on the fact that fraud claims in general required no proof of any harm to "health." (The plaintiff argued that the cigarettes' tar-reducing qualities would not, in fact, deliver low quantities of tar because consumers' predictable behavior -- e.g., compensatory smoking -- would result in precisely the same dosage of tar). Of course, such fraud lawsuits would predictably have big effects on cigarette advertising, given that there is no obvious way for tobacco companies to alter consumer behavior. But effects of state law on federal regulatory interests are apparently not sufficient to justify preemption of state law, if the state law is not aimed at producing such effects.

Of course, we federalism supporters are still waiting for the other shoe -- Wyeth v Levine -- to drop. I am guessing that the Court will rule for Wyeth based on the FDA's declarations favoring preemption -- but I'd be delighted if the Court defied my expectations.