ALTRIA GROUP, INC., et al. v. GOOD et al.

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70 OCTOBER TERM, 2008
Syllabus
ALTRIA GROUP, INC., et al. v. GOOD et al.
certiorari to the united states court of appeals for
the first circuit
No. 07–562. Argued October 6, 2008—Decided December 15, 2008
Respondents, smokers of petitioners’ “light” cigarettes, filed suit, alleging
that petitioners violated the Maine Unfair Trade Practices Act
(MUTPA) by fraudulently advertising that their “light” cigarettes deliv
ered less tar and nicotine than regular brands. The District Court
granted summary judgment for petitioners, finding the state-law claim
pre-empted by the Federal Cigarette Labeling and Advertising Act (La
beling Act). The First Circuit reversed, holding that the Labeling Act
neither expressly nor impliedly pre-empts respondents’ fraud claim.
Held: Neither the Labeling Act’s pre-emption provision nor the Federal
Trade Commission’s actions in this field pre-empt respondents’ state-law
fraud claim. Pp. 76–91.
(a) Congress may indicate pre-emptive intent through a statute’s ex
press language or through its structure and purpose. See Jones v. Rath
Packing Co., 430 U. S. 519, 525. When the text of an express pre
emption clause is susceptible of more than one plausible reading, courts
ordinarily “accept the reading that disfavors pre-emption.” Bates v.
Dow Agrosciences LLC, 544 U. S. 431, 449. The Labeling Act’s stated
purposes are to inform the public of the health risks of smoking while
protecting commerce and the economy from the ill effects of nonuniform
requirements to the extent consistent with the first goal. Although fi
delity to these purposes does not demand the pre-emption of state fraud
rules, the principal question here is whether that result is nevertheless
required by 15 U. S. C. § 1334(b), which provides that “[n]o 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.” Pp. 76–80.
(b) Respondents’ claim is not expressly pre-empted by § 1334(b). As
determined in Cipollone v. Liggett Group, Inc., 505 U. S. 504, and Loril
lard Tobacco Co. v. Reilly, 533 U. S. 525, the phrase “based on smoking
and health” modifies the state-law rule at issue rather than a particular
application of that rule. The Cipollone plurality concluded that “the
phrase ‘based on smoking and health’ fairly but narrowly construed” did
not pre-empt the Cipollone plaintiff ’s common-law claim that cigarette
manufacturers had fraudulently misrepresented and concealed a mate
rial fact, because the claim alleged a violation of a duty not to deceive—

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71 Cite as: 555 U. S. 70 (2008)
Syllabus
a duty that is not “based on” smoking and health. 505 U. S., at 528–529.
Respondents here also allege a violation of the duty not to deceive as
codified in the MUTPA, which, like the common-law duty in Cipollone,
has nothing to do with smoking and health. Respondents’ claim is not
analogous to the “warning neutralization” claim found to be pre-empted
in Cipollone. Reilly is consistent with Cipollone’s analysis. This
Court disagrees with petitioners’ alternative argument that the express
pre-emption framework of Cipollone and Reilly should be rejected.
American Airlines, Inc. v. Wolens, 513 U. S. 219, and Riegel v. Med
tronic, Inc., 552 U. S. 312, are distinguished. Pp. 80–87.
(c) Various Federal Trade Commission decisions with respect to
statements of tar and nicotine content do not impliedly pre-empt state
deceptive practices rules like the MUTPA. Pp. 87–90.
501 F. 3d 29, affirmed and remanded.
Stevens, J., delivered the opinion of the Court, in which Kennedy,
Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissent
ing opinion, in which Roberts, C. J., and Scalia and Alito, JJ., joined,
post, p. 91.
Theodore B. Olson argued the cause for petitioners. With
him on the briefs were Mark A. Perry, Amir C. Tayrani,
Kenneth J. Parsigian, Kenneth S. Geller, and Guy Miller
Struve.
David C. Frederick argued the cause for respondents.
With him on the brief were Mark L. Evans, Gerard V. Mant
ese, Mark Rossman, Thomas V. Urmy, Jr., Todd S. Heyman,
and Samuel W. Lanham, Jr.
Douglas Hallward-Driemeier argued the cause for the
United States as amicus curiae in support of respondents.
With him on the brief were Solicitor General Garre, Deputy
Solicitor General Kneedler, Assistant Attorney General
Hertz, Mark B. Stern, and Alisa B. Klein.*
*Briefs of amici curiae urging reversal were filed for the Chamber of
Commerce of the United States of America by Jeffrey A. Lamken, Allyson
N. Ho, Robin S. Conrad, and Amar D. Sarwal; for the National Associa
tion of Manufacturers by Peter A. Barile III, Jan S. Amundson, and
Quentin Riegel; for the Product Liability Advisory Council, Inc., by John
M. Thomas; and for the Washington Legal Foundation by Daniel J. Popeo
and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of
Maine et al. by G. Steven Rowe, Attorney General of Maine, Paul Stern,

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72 ALTRIA GROUP, INC. v. GOOD
Opinion of the Court
Justice Stevens delivered the opinion of the Court.
Respondents, who have for over 15 years smoked “light”
cigarettes manufactured by petitioners, Philip Morris USA,
Inc., and its parent company, Altria Group, Inc., claim that
petitioners violated the Maine Unfair Trade Practices Act
Deputy Attorney General, Linda Conti, Chief, Consumer Protection Divi
sion, and Jennifer Willis and Carolyn Silsby, Assistant Attorneys Gen
eral, by Peter J. Nickles, Interim Attorney General of the District of Co
lumbia, and by the Attorneys General for their respective States as
follows: Troy King of Alabama, Talis J. Colberg of Alaska, Terry Goddard
of Arizona, Dustin McDaniel of Arkansas, Edmund G. Brown, Jr., of Cali
fornia, John W. Suthers of Colorado, Richard Blumenthal of Connecticut,
Joseph R. Biden III of Delaware, Bill McCollum of Florida, Thurbert E.
Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of
Idaho, Lisa Madigan of Illinois, Steve Carter of Indiana, Thomas J. Miller
of Iowa, Stephen N. Six of Kansas, Jack Conway of Kentucky, James D.
Caldwell of Louisiana, Douglas F. Gansler of Maryland, Martha Coakley
of Massachusetts, Lori Swanson of Minnesota, Jim Hood of Mississippi,
Jeremiah W. (Jay) Nixon of Missouri, Mike McGrath of Montana, Jon
Bruning of Nebraska, Catherine Cortez Masto of Nevada, Kelly A. Ayotte
of New Hampshire, Anne Milgram of New Jersey, Gary K. King of New
Mexico, Andrew M. Cuomo of New York, Wayne Stenehjem of North Da
kota, Nancy H. Rogers of Ohio, W. A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon, Tom Corbett of Pennsylvania, Patrick C. Lynch
of Rhode Island, Henry D. McMaster of South Carolina, Lawrence E. Long
of South Dakota, Robert E. Cooper, Jr., of Tennessee, Greg Abbott of
Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Robert
M. McKenna of Washington, Darrell V. McGraw, Jr., of West Virginia,
J. B. Van Hollen of Wisconsin, and Bruce A. Salzburg of Wyoming; for the
American Medical Association et al. by Gerson H. Smoger; for Former
Commissioners of the Federal Trade Commission by Robert L. King; for
the Maryland Consumer Rights Coalition et al. by Kathleen Hoke Da
chille; for the Tobacco Control Legal Consortium et al. by David C. Vla
deck, Leslie A. Brueckner, and Julie Nepveu; and for Allan M. Brandt
et al. by Robert S. Peck and Francine A. Hochberg.
Briefs of amici curiae were filed for Constitutional and Administrative
Law Scholars by Ernest A. Young, pro se, and Erin Glenn Busby; and for
Former Commissioners et al. of the Federal Trade Commission by Michael
S. Fried, Christian G. Vergonis, and Robert T. Smith.

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73 Cite as: 555 U. S. 70 (2008)
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(MUTPA). Specifically, they allege that petitioners’ adver
tising fraudulently conveyed the message that their “light”
cigarettes deliver less tar and nicotine to consumers than
regular brands despite petitioners’ knowledge that the mes
sage was untrue. Petitioners deny the charge, asserting
that their advertisements were factually accurate. The
merits of the dispute are not before us because the District
Court entered summary judgment in favor of petitioners on
the ground that respondents’ state-law claim is pre-empted
by the Federal Cigarette Labeling and Advertising Act, as
amended (Labeling Act or Act). The Court of Appeals re
versed that judgment, and we granted certiorari to review
its holding that the Labeling Act neither expressly nor im
pliedly pre-empts respondents’ fraud claim. We affirm.
I
Respondents are Maine residents and longtime smokers of
Marlboro Lights and Cambridge Lights cigarettes, which are
manufactured by petitioners. Invoking the diversity juris
diction of the Federal District Court, respondents filed a
complaint alleging that petitioners deliberately deceived
them about the true and harmful nature of “light” cigarettes
in violation of the MUTPA, Me. Rev. Stat. Ann., Tit. 5, § 207
(Supp. 2008).1 Respondents claim that petitioners fraudu
lently marketed their cigarettes as being “light” and contain
ing “ ‘[l]owered [t]ar and [n]icotine’ ” to convey to consumers
that they deliver less tar and nicotine and are therefore less
harmful than regular cigarettes. App. 28a–29a.
1 The MUTPA provides, as relevant, that “[u]nfair methods of competi
tion and unfair or deceptive acts or practices in the conduct of any trade
or commerce are declared unlawful.” § 207. In construing that section,
courts are to “be guided by the interpretations given by the Federal Trade
Commission and the Federal Courts to Section 45(a)(1) of the Federal
Trade Commission Act (15 United States Code 45(a)(1)), as from time to
time amended.” § 207(1).

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74 ALTRIA GROUP, INC. v. GOOD
Opinion of the Court
Respondents acknowledge that testing pursuant to the
Cambridge Filter Method 2 indicates that tar and nicotine
yields of Marlboro Lights and Cambridge Lights are lower
than those of regular cigarettes. Id., at 30a. Respondents
allege, however, that petitioners have known at all relevant
times that human smokers unconsciously engage in compen
satory behaviors not registered by Cambridge Filter Method
testing that negate the effect of the tar- and nicotine
reducing features of “light” cigarettes. Id., at 30a–31a. By
covering filter ventilation holes with their lips or fingers,
taking larger or more frequent puffs, and holding the smoke
in their lungs for a longer period of time, smokers of “light”
cigarettes unknowingly inhale as much tar and nicotine as
do smokers of regular cigarettes. Ibid. “Light” cigarettes
are in fact more harmful because the increased ventilation
that results from their unique design features produces
smoke that is more mutagenic per milligram of tar than the
smoke of regular cigarettes. Id., at 31a–32a. Respondents
claim that petitioners violated the MUTPA by fraudulently
concealing that information and by affirmatively represent
ing, through the use of “light” and “lowered tar and nicotine”
descriptors, that their cigarettes would pose fewer health
risks. Id., at 32a, 33a.
Petitioners moved for summary judgment on the ground
that the Labeling Act, 15 U. S. C. § 1334(b), expressly pre
empts respondents’ state-law cause of action. Relying on
our decisions in Cipollone v. Liggett Group, Inc., 505 U. S.
504 (1992), and Lorillard Tobacco Co. v. Reilly, 533 U. S.
2 The Cambridge Filter Method weighs and measures the tar and nico
tine collected by a smoking machine that takes 35 milliliter puffs of two
seconds’ duration every 60 seconds until the cigarette is smoked to a speci
fied butt length. App. 294a, 668a. As discussed below, the Federal Trade
Commission (FTC or Commission) signaled in 1966 that the Cambridge
Filter Method was an acceptable means of measuring the tar and nicotine
content of cigarettes, but it never required manufacturers to publish test
results in their advertisements.

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525 (2001), the District Court concluded that respondents’
MUTPA claim is pre-empted. The court recast respondents’
claim as a failure-to-warn or warning neutralization claim of
the kind pre-empted in Cipollone: The claim charges peti
tioners with “produc[ing] a product it knew contained hidden
risks . . . not apparent or known to the consumer”—a claim
that “runs to what [petitioners] actually said about Lights
and what [respondents] claim they should have said.” 436
F. Supp. 2d 132, 151 (Me. 2006). And the difference between
what petitioners said and what respondents would have them
say is “ ‘intertwined with the concern about cigarette smok
ing and health.’ ” Id., at 153 (quoting Reilly, 533 U. S., at
548). The District Court thus concluded that respondents’
claim rests on a state-law requirement based on smoking and
health of precisely the kind that § 1334(b) pre-empts, and it
granted summary judgment for petitioners.
Respondents appealed, and the Court of Appeals reversed.
The Court of Appeals first rejected the District Court’s char
acterization of respondents’ claim as a warning neutraliza
tion claim akin to the pre-empted claim in Cipollone. 501
F. 3d 29, 37, 40 (CA1 2007). Instead, the court concluded
that respondents’ claim is in substance a fraud claim that
alleges that petitioners falsely represented their cigarettes
as “light” or having “lowered tar and nicotine” even though
they deliver to smokers the same quantities of those compo
nents as do regular cigarettes. Id., at 36. “The fact that
these alleged misrepresentations were unaccompanied by ad
ditional statements in the nature of a warning does not
transform the claimed fraud into failure to warn” or warning
neutralization. Id., at 42–43. Finding respondents’ claim
indistinguishable from the non-pre-empted fraud claim at
issue in Cipollone, the Court of Appeals held that it is not
expressly pre-empted. The court also rejected petitioners’
argument that respondents’ claim is impliedly pre-empted
because their success on that claim would stand as an obsta

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76 ALTRIA GROUP, INC. v. GOOD
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cle to the purported policy of the FTC allowing the use of
descriptive terms that convey Cambridge Filter Method test
results. Accordingly, it reversed the judgment of the Dis
trict Court.
In concluding that respondents’ claim is not expressly pre
empted, the Court of Appeals considered and rejected the
Fifth Circuit’s reasoning in a similar case. 501 F. 3d, at 45.
Unlike the court below, the Fifth Circuit likened the plain
tiffs’ challenge to the use of “light” descriptors to Cipollone’s
warning neutralization claim and thus found it expressly
pre-empted. Brown v. Brown & Williamson Tobacco Corp.,
479 F. 3d 383, 392–393 (2007). We granted the petition for
certiorari to resolve this apparent conflict. 552 U. S. 1162
(2008).
II
Article VI, cl. 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.” Consistent with that
command, we have long recognized that state laws that con
flict with federal law are “without effect.” Maryland v.
Louisiana, 451 U. S. 725, 746 (1981).
Our inquiry into the scope of a statute’s pre-emptive effect
is guided by the rule that “ ‘[t]he purpose of Congress is
the ultimate touchstone’ in every pre-emption case.” Med
tronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (quoting Retail
Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963)). Congress
may indicate pre-emptive intent through a statute’s express
language or through its structure and purpose. See Jones
v. Rath Packing Co., 430 U. S. 519, 525 (1977). If a federal
law contains an express pre-emption clause, it does not im
mediately end the inquiry because the question of the sub
stance and scope of Congress’ displacement of state law still
remains. Pre-emptive intent may also be inferred if the
scope of the statute indicates that Congress intended federal
law to occupy the legislative field, or if there is an actual

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conflict between state and federal law. Freightliner Corp.
v. Myrick, 514 U. S. 280, 287 (1995).
When addressing questions of express or implied pre
emption, we begin our analysis “with the assumption that
the historic police powers of the States [are] not to be super
seded by the Federal Act unless that was the clear and mani
fest purpose of Congress.” Rice v. Santa Fe Elevator Corp.,
331 U. S. 218, 230 (1947). That assumption applies with par
ticular force when Congress has legislated in a field tradi
tionally occupied by the States. Lohr, 518 U. S., at 485; see
also Reilly, 533 U. S., at 541–542 (“Because ‘federal law is
said to bar state action in [a] fiel[d] of traditional state regu
lation,’ namely, advertising, we ‘wor[k] on the assumption
that the historic police powers of the States [a]re not to be
superseded by the Federal Act unless that [is] the clear and
manifest purpose of Congress’ ” (citation omitted)). Thus,
when the text of a pre-emption clause is susceptible of more
than one plausible reading, courts ordinarily “accept the
reading that disfavors pre-emption.” Bates v. Dow Agro
sciences LLC, 544 U. S. 431, 449 (2005).
Congress enacted the Labeling Act in 1965 3 in response to
the Surgeon General’s determination that cigarette smoking
is harmful to health. The Act required that every package
of cigarettes sold in the United States contain a conspicuous
warning, and it pre-empted state-law positive enactments
that added to the federally prescribed warning. 79 Stat.
283. Congress amended the Labeling Act a few years later
by enacting the Public Health Cigarette Smoking Act of
1969.4 The amendments strengthened the language of the
prescribed warning, 84 Stat. 88, and prohibited cigarette ad
vertising in “any medium of electronic communication sub
ject to [Federal Communications Commission] jurisdiction,”
id., at 89. They also broadened the Labeling Act’s pre
3 79 Stat. 282.
4 Pub. L. 91–222, 84 Stat. 87. Though actually enacted in 1970, Con
gress directed that it be cited as a “1969 Act.”

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78 ALTRIA GROUP, INC. v. GOOD
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emption provision. See Cipollone, 505 U. S., at 520 (plural
ity opinion) (discussing the difference in scope of the pre
emption clauses of the 1965 and 1969 Acts). The Labeling
Act has since been amended further to require cigarette
manufacturers to include four more explicit warnings in their
packaging and advertisements on a rotating basis.5
The stated purpose of the Labeling Act is
“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 ciga
rette smoking may be hazardous to health by inclusion
of a warning to that effect on each package of ciga
rettes; 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, non
uniform, and confusing cigarette labeling and advertis
ing regulations with respect to any relationship between
smoking and health.” 79 Stat. 282, 15 U. S. C. § 1331.
The requirement that cigarette manufacturers include in
their packaging and advertising the precise warnings man
dated by Congress furthers the Act’s first purpose. And the
Act’s pre-emption provisions promote its second purpose.
As amended, the Labeling Act contains two express pre
emption provisions. Section 5(a) protects cigarette manu
facturers from inconsistent state labeling laws by prohibiting
the requirement of additional statements relating to smoking
and health on cigarette packages. 15 U. S. C. § 1334(a).
Section 5(b), which is at issue in this case, provides that “[n]o
requirement or prohibition based on smoking and health
shall be imposed under State law with respect to the adver
5 Comprehensive Smoking Education Act, Pub. L. 98–474, § 4(a), 98 Stat.
2201, 15 U. S. C. § 1333(a).

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tising or promotion of any cigarettes the packages of which
are labeled in conformity with the provisions of this chap
ter.” § 1334(b).
Together, the labeling requirement and pre-emption provi
sions express Congress’ determination that the prescribed
federal warnings are both necessary and sufficient to achieve
its purpose of informing the public of the health conse
quences of smoking. Because Congress has decided that no
additional warning statement is needed to attain that goal,
States may not impede commerce in cigarettes by enforcing
rules that are based on an assumption that the federal warn
ings are inadequate. Although both of the Act’s purposes
are furthered by prohibiting States from supplementing the
federally prescribed warning, neither would be served by
limiting the States’ authority to prohibit deceptive state
ments in cigarette advertising. Petitioners acknowledge
that “Congress had no intention of insulating tobacco compa
nies from liability for inaccurate statements about the rela
tionship between smoking and health.” Brief for Petition
ers 28. But they maintain that Congress could not have
intended to permit the enforcement of state fraud rules
because doing so would defeat the Labeling Act’s purpose
of preventing nonuniform state warning requirements. 15
U. S. C. § 1331.6 As we observed in Cipollone, however,
6 Petitioners also urge us to find support for their claim that Congress
gave the FTC exclusive authority to police deceptive health-related claims
in cigarette advertising in what they refer to as the Labeling Act’s “saving
clause.” The clause provides that, apart from the warning requirement,
nothing in the Act “shall be construed to limit, restrict, expand, or other
wise affect the authority of the Federal Trade Commission with respect
to unfair or deceptive acts or practices in the advertising of cigarettes.”
§ 1336. A plurality of this Court has previously read this clause to “indi
cat[e] that Congress intended the phrase ‘relating to smoking and
health’ . . . to be construed narrowly, so as not to proscribe the regulation
of deceptive advertising.” Cipollone v. Liggett Group, Inc., 505 U. S. 504,
528–529 (1992). Nothing in the clause suggests that Congress meant to
proscribe the States’ historic regulation of deceptive advertising prac

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fraud claims “rely only on a single, uniform standard: falsity.”
505 U. S., at 529 (plurality opinion).
Although it is clear that fidelity to the Act’s purposes does
not demand the pre-emption of state fraud rules, the princi
pal question that we must decide is whether the text of
§ 1334(b) nevertheless requires that result.
III
We have construed the operative phrases of § 1334(b) in
two prior cases: Cipollone, 505 U. S. 504, and Reilly, 533
U. S. 525. On both occasions we recognized that the phrase
“based on smoking and health” modifies the state-law rule
at issue rather than a particular application of that rule.
In Cipollone, the plurality, which consisted of Chief Jus
tice Rehnquist and Justices White, O’Connor, and Stevens,
read the pre-emption provision in the 1969 amendments to
the Labeling Act to pre-empt common-law rules as well as
positive enactments. Unlike Justices Blackmun, Kennedy,
and Souter, the plurality concluded that the provision does
not preclude all common-law claims that have some relation
ship to smoking and health. 505 U. S., at 521–523. To de
termine whether a particular common-law claim is pre
empted, the plurality inquired “whether the legal duty that
is the predicate of the common-law damages action consti
tutes a ‘requirement or prohibition based on smoking and
health . . . with respect to . . . advertising or promotion,’
giving that clause a fair but narrow reading.” Id., at 524.
tices. The FTC has long depended on cooperative state regulation to
achieve its mission because, although one of the smallest administrative
agencies, it is charged with policing an enormous amount of activity. See
1 S. Kanwit, Federal Trade Commission §§ 1:1, 1:2 (2004 ed. and Supp.
2008). Moreover, when the Labeling Act was amended in 1969 it was not
even clear that the FTC possessed rulemaking authority, see 84 Stat. 89,
making it highly unlikely that Congress would have intended to assign
exclusively to the FTC the substantial task of overseeing deceptive prac
tices in cigarette advertisements.

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Applying this standard, the plurality held that the plain
tiff ’s claim that cigarette manufacturers had fraudulently
misrepresented and concealed a material fact was not pre
empted. That claim alleged a violation of the manufactur
ers’ duty not to deceive—a duty that is not “based on” smok
ing and health. Id., at 528–529. Respondents in this case
also allege a violation of the duty not to deceive as that duty
is codified in the MUTPA. The duty codified in that state
statute, like the duty imposed by the state common-law rule
at issue in Cipollone, has nothing to do with smoking and
health.7
Petitioners endeavor to distance themselves from that
holding by arguing that respondents’ claim is more analogous
to the “warning neutralization” claim found to be pre-empted
in Cipollone. Although the plurality understood the plain
tiff to have presented that claim as a “theory of fraudulent
misrepresentation,” id., at 528, the gravamen of the claim
was the defendants’ failure to warn, as it was “predicated on
a state-law prohibition against statements in advertising and
promotional materials that tend to minimize the health haz
ards associated with smoking,” id., at 527. Thus under
stood, the Cipollone plurality’s analysis of the warning neu
tralization claim has no application in this case.8
7 In his dissent, Justice Thomas criticizes our reliance on the plurality
opinion in Cipollone, post, at 96–98, 103–108, 111–112, and advocates
adopting the analysis set forth by Justice Scalia in his opinion concur
ring in the judgment in part and dissenting in part in that case, post, at
95–96, 109–110. But Justice Scalia’s approach was rejected by seven
Members of the Court, and in the almost 17 years since Cipollone was
decided Congress has done nothing to indicate its approval of that ap
proach. Moreover, Justice Thomas fails to explain why Congress would
have intended the result that Justice Scalia’s approach would produce—
namely, permitting cigarette manufacturers to engage in fraudulent adver
tising. As a majority of the Court concluded in Cipollone, nothing in the
Labeling Act’s language or purpose supports that result.
8 The Cipollone plurality further stated that the warning neutralization
claim was “merely the converse of a state-law requirement that warnings
be included in advertising and promotional materials,” 505 U. S., at 527,

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Petitioners nonetheless contend that respondents’ claim is
like the pre-empted warning neutralization claim because it
is based on statements that “might create a false impression”
rather than statements that are “inherently false.” Brief
for Petitioners 39. But the extent of the falsehood alleged
does not alter the nature of the claim. Nothing in the Label
ing Act’s text or purpose or in the plurality opinion in Cipol
lone suggests that whether a claim is pre-empted turns in
any way on the distinction between misleading and inher
ently false statements. Petitioners’ misunderstanding is the
same one that led the Court of Appeals for the Fifth Circuit,
when confronted with a “light” descriptors claim, to reach a
result at odds with the Court of Appeals’ decision in this
case. See Brown, 479 F. 3d, at 391–393. Certainly, the ex
tent of the falsehood alleged may bear on whether a plaintiff
can prove her fraud claim, but the merits of respondents’
claim are not before us.
Once that erroneous distinction is set aside, it is clear that
our holding in Cipollone that the common-law fraud claim
was not pre-empted is directly applicable to the statutory
claim at issue in this case. As was true of the claim in
Cipollone, respondents’ claim that the deceptive statements
“light” and “lowered tar and nicotine” induced them to pur
chase petitioners’ product alleges a breach of the duty not to
deceive.9 To be sure, the presence of the federally man
dated warnings may bear on the materiality of petitioners’
evincing the plurality’s recognition that warning neutralization and
failure-to-warn claims are two sides of the same coin. Justice Thomas’
criticism of the plurality’s treatment of the failure-to-warn claim, post,
at 106, is beside the point, as no such claim is at issue in this
litigation.
9 As the Court of Appeals observed, respondents’ allegations regarding
petitioners’ use of the statements “light” and “lowered tar and nicotine”
could also support a warning neutralization claim. But respondents did
not bring such a claim, and the fact that they could have does not,
as petitioners suggest, elevate form over substance. There is nothing
new in the recognition that the same conduct might violate multiple
proscriptions.

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allegedly fraudulent statements, “but that possibility does
not change [respondents’] case from one about the state
ments into one about the warnings.” 501 F. 3d, at 44.10
Our decision in Reilly is consistent with Cipollone’s analy
sis. Reilly involved regulations promulgated by the Massa
chusetts attorney general “ ‘in order to address the incidence
of cigarette smoking and smokeless tobacco use by children
under legal age . . . [and] in order to prevent access to such
products by underage consumers.’ ” 533 U. S., at 533 (quot
ing 940 Code Mass. Regs. § 21.01 (2000)). The regulations
did not pertain to the content of any advertising; rather, they
placed a variety of restrictions on certain cigarette sales and
the location of outdoor and point-of-sale cigarette advertis
ing. The attorney general promulgated those restrictions
pursuant to his statutory authority to prevent unfair or de
ceptive trade practices. Mass. Gen. Laws, ch. 93A, § 2 (West
1996). But although the attorney general’s authority de
rived from a general deceptive practices statute like the one
at issue in this case, the challenged regulations targeted ad
vertising that tended to promote tobacco use by children in
stead of prohibiting false or misleading statements. Thus,
whereas the “prohibition” in Cipollone was the common-law
fraud rule, the “prohibitions” in Reilly were the targeted
regulations. Accordingly, our holding in Reilly that the reg
10 Justice Thomas contends that respondents’ fraud claim must be
pre-empted because “[a] judgment in [their] favor will . . . result in a ‘re
quirement’ that petitioners represent the effects of smoking on health in
a particular way in their advertising and promotion of light cigarettes.”
Post, at 93. He further asserts that “respondents seek to require the
cigarette manufacturers to provide additional warnings about compensa
tory behavior, or to prohibit them from selling these products with the
‘light’ or ‘low-tar’ descriptors.” Post, at 109–110. But this mischaracter
izes the relief respondents seek. If respondents prevail at trial, petition
ers will be prohibited from selling as “light” or “low tar” only those ciga
rettes that are not actually light and do not actually deliver less tar and
nicotine. Barring intervening federal regulation, petitioners would re
main free to make nonfraudulent use of the “light” and “low-tar”
descriptors.

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ulations were pre-empted provides no support for an argu
ment that a general prohibition of deceptive practices is
“based on” the harm caused by the specific kind of deception
to which the prohibition is applied in a given case.
It is true, as petitioners argue, that the appeal of their
advertising is based on the relationship between smoking
and health. And although respondents have expressly repu
diated any claim for damages for personal injuries, see App.
26a, their actual injuries likely encompass harms to health
as well as the monetary injuries they allege. These argu
ments are unavailing, however, because the text of § 1334(b)
does not refer to harms related to smoking and health.
Rather, it pre-empts only requirements and prohibitions—
i. e., rules—that are based on smoking and health. The
MUTPA says nothing about either “smoking” or “health.”
It is a general rule that creates a duty not to deceive and is
therefore unlike the regulations at issue in Reilly.11
Petitioners argue in the alternative that we should reject
the express pre-emption framework established by the
Cipollone plurality and relied on by the Court in Reilly. In
so doing, they invoke the reasons set forth in the separate
opinions of Justice Blackmun (who especially criticized the
plurality’s holding that the failure-to-warn claim was pre
empted) and Justice Scalia (who argued that the fraud
claim also should be pre-empted). While we again acknowl
edge that our analysis of these claims may lack “theoretical
elegance,” we remain persuaded that it represents “a fair
understanding of congressional purpose.” Cipollone, 505
U. S., at 529–530, n. 27 (plurality opinion).
11 In implementing the MUTPA, neither the state legislature nor the
state attorney general has enacted a set of special rules or guidelines
targeted at cigarette advertising. As we noted in Cipollone, it was the
threatened enactment of new state warning requirements rather than the
enforcement of pre-existing general prohibitions against deceptive prac
tices that prompted congressional action in 1969. 505 U. S., at 515, and
n. 11.

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Petitioners also contend that the plurality opinion is incon
sistent with our decisions in American Airlines, Inc. v.
Wolens, 513 U. S. 219 (1995), and Riegel v. Medtronic, Inc.,
552 U. S. 312 (2008). Both cases, however, are inapposite—
the first because it involved a pre-emption provision much
broader than the Labeling Act’s, and the second because it
involved precisely the type of state rule that Congress had
intended to pre-empt.
At issue in Wolens was the pre-emptive effect of the
Air line Dereg u lati on Act of 1978 (ADA), 49 U. S. C.
App. § 1305(a)(1) (1988 ed.), which prohibits States from
enacting or enforcing any law “relating to rates, routes, or
services of any air carrier.” The plaintiffs in that case
sought to bring a claim under the Illinois Consumer Fraud
and Deceptive Business Practices Act, Ill. Comp. Stat.,
ch. 815, § 505 (West 1992). Our conclusion that the state-law
claim was pre-empted turned on the unusual breadth of the
ADA’s pre-emption provision. We had previously held that
the meaning of the key phrase in the ADA’s pre-emption pro
vision, “ ‘relating to rates, routes, or services,’ ” is a broad
one. Morales v. Trans World Airlines, Inc., 504 U. S. 374,
383–384 (1992) (emphasis added). Relying on precedents
construing the pre-emptive effect of the same phrase in the
Employee Retirement Income Security Act of 1974, 29
U. S. C. § 1144(a), we concluded that the phrase “ ‘relating
to’ ” indicates Congress’ intent to pre-empt a large area of
state law to further its purpose of deregulating the air
line industry. 504 U. S., at 383–384.12 Unquestionably, the
12 Petitioners also point to Morales as evidence that our decision in
Cipollone was wrong. But Morales predated Cipollone, and it is in any
event even more easily distinguishable from this case than American Air
lines, Inc. v. Wolens, 513 U. S. 219 (1995). At issue in Morales were
guidelines regarding the form and substance of airline fare advertising
implemented by the National Association of Attorneys General to give
content to state deceptive practices rules. 504 U. S., at 379. Like the
regulations at issue in Reilly, the guidelines were industry-specific direc
tives that targeted the subject matter made off-limits by the ADA’s ex

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phrase “relating to” has a broader scope than the Labeling
Act’s reference to rules “based on” smoking and health;
whereas “relating to” is synonymous with “having a connec
tion with,” id., at 384, “based on” describes a more direct
relationship, see Safeco Ins. Co. of America v. Burr, 551 U. S.
47, 63 (2007) (“In common talk, the phrase ‘based on’ indi
cates a but-for causal relationship and thus a necessary logi
cal condition”).
Petitioners’ reliance on Riegel is similarly misplaced. The
plaintiffs in Riegel sought to bring common-law design, man
ufacturing, and labeling defect claims against the manufac
turer of a faulty catheter. The case presented the question
whether those claims were expressly pre-empted by the
Medical Device Amendments of 1976 (MDA), 21 U. S. C.
§ 360c et seq. The MDA’s pre-emption clause provides that
no State “ ‘may establish or continue in effect with respect
to a device . . . any requirement’ relating to safety or effec
tiveness that is different from, or in addition to, federal re
quirements.” Riegel, 552 U. S., at 328 (quoting 21 U. S. C.
§ 360k(a); emphasis deleted).
The catheter at issue in Riegel had received premarket
approval from the Food and Drug Administration (FDA).
We concluded that premarket approval imposes “require
ment[s] relating to safety [and] effectiveness” because the
FDA requires a device that has received premarket approval
to be made with almost no design, manufacturing, or labeling
deviations from the specifications in its approved application.
The plaintiffs’ products liability claims fell within the core
of the MDA’s pre-emption provision because they sought to
impose different requirements on precisely those aspects of
the device that the FDA had approved. Unlike the Cipol
lone plaintiff ’s fraud claim, which fell outside of the Labeling
Act’s pre-emptive reach because it did not seek to impose a
press pre-emption provisions. See also Rowe v. New Hampshire Motor
Transp. Assn., 552 U. S. 364 (2008) (holding that targeted ground carrier
regulations were pre-empted by a statute modeled on the ADA).

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prohibition “based on smoking and health,” the Riegel plain
tiffs’ common-law products liability claims unquestionably
sought to enforce “requirement[s] relating to safety or effec
tiveness” under the MDA. That the “relating to” language
of the MDA’s pre-emption provision is, like the ADA’s, much
broader than the operative language of the Labeling Act pro
vides an additional basis for distinguishing Riegel. Thus,
contrary to petitioners’ suggestion, Riegel is entirely consist
ent with our holding in Cipollone.
In sum, we conclude now, as the plurality did in Cipollone,
that “the phrase ‘based on smoking and health’ fairly but
narrowly construed does not encompass the more general
duty not to make fraudulent statements.” 505 U. S., at 529.
IV
As an alternative to their express pre-emption argument,
petitioners contend that respondents’ claim is impliedly pre
empted because, if allowed to proceed, it would present an
obstacle to a longstanding policy of the FTC. According to
petitioners, the FTC has for decades promoted the develop
ment and consumption of low tar cigarettes and has encour
aged consumers to rely on representations of tar and nicotine
content based on Cambridge Filter Method testing in choos
ing among cigarette brands. Even if such a regulatory pol
icy could provide a basis for obstacle pre-emption, petition
ers’ description of the FTC’s actions in this regard are
inaccurate. The Government itself disavows any policy au
thorizing the use of “light” and “low tar” descriptors. Brief
for United States as Amicus Curiae 16–33.
In 1966, following the publication of the Surgeon General’s
report on smoking and health, the FTC issued an industry
guidance stating its view that “a factual statement of the tar
and nicotine content (expressed in milligrams) of the main
stream smoke from a cigarette,” as measured by Cambridge
Filter Method testing, would not violate the FTC Act. App.
478a. The Commission made clear, however, that the guid

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ance applied only to factual assertions of tar and nicotine
yields and did not invite “collateral representations . . . made,
expressly or by implication, as to reduction or elimination of
health hazards.” Id., at 479a. A year later, the FTC reiter
ated its position in a letter to the National Association of
Broadcasters. The letter explained that, as a “general
rule,” the Commission would not challenge statements of tar
and nicotine content when “they are shown to be accurate
and fully substantiated by tests conducted in accordance
with the [Cambridge Filter Method].” Id., at 368a. In
1970, the FTC considered providing further guidance, pro
posing a rule that would have required manufacturers to
disclose tar and nicotine yields as measured by Cambridge
Filter Method testing. 35 Fed. Reg. 12671. The leading
cigarette manufacturers responded by submitting a volun
tary agreement under which they would disclose tar and nic
otine content in their advertising, App. 899a–900a, and the
FTC suspended its rulemaking, 36 Fed. Reg. 784 (1971).
Based on these events, petitioners assert that “the FTC
has required tobacco companies to disclose tar and nicotine
yields in cigarette advertising using a government-mandated
testing methodology and has authorized them to use descrip
tors as shorthand references to those numerical test results.”
Brief for Petitioners 2 (emphasis in original). As the forego
ing history shows, however, the FTC has in fact never re
quired that cigarette manufacturers disclose tar and nicotine
yields, nor has it condoned representations of those yields
through the use of “light” or “low tar” descriptors.
Subsequent Commission actions further undermine peti
tioners’ claim. After the tobacco companies agreed to re
port tar and nicotine yields as measured by the Cambridge
Filter Method, the FTC continued to police cigarette compa
nies’ misleading use of test results. In 1983, the FTC re
sponded to findings that tar and nicotine yields for Barclay
cigarettes obtained through Cambridge Filter Method test
ing were deceptive because the cigarettes in fact delivered

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disproportionately more tar to smokers than other cigarettes
with similar Cambridge Filter Method ratings. 48 Fed.
Reg. 15954. And in 1995, the FTC found that a manufactur
er’s representation “that consumers will get less tar by
smoking ten packs of Carlton brand cigarettes than by smok
ing a single pack of the other brands” was deceptive even
though it was based on the results of Cambridge Filter
Method testing. In re American Tobacco Co., 119 F. T. C.
3, 4. The FTC’s conclusion was based on its recognition
that, “[i]n truth and in fact, consumers will not necessarily
get less tar” due to “such behavior as compensatory smok
ing.” Ibid.13
This history shows that, contrary to petitioners’ sugges
tion, the FTC has no longstanding policy authorizing collat
eral representations based on Cambridge Filter Method test
results. Rather, the FTC has endeavored to inform con
sumers of the comparative tar and nicotine content of differ
ent cigarette brands and has in some instances prevented
misleading representations of Cambridge Filter Method test
results. The FTC’s failure to require petitioners to correct
their allegedly misleading use of “light” descriptors is not
evidence to the contrary; agency nonenforcement of a fed
13 In a different action, the FTC charged a cigarette manufacturer with
violating the FTC Act by misleadingly advertising certain brands as “low
in tar” even though they had a higher-than-average tar rating. See In re
American Brands, Inc., 79 F. T. C. 255 (1971). The Commission and the
manufacturer entered a consent order that prevented the manufacturer
from making any such representations unless they were accompanied by
a clear and conspicuous disclosure of the cigarettes’ tar and nicotine con
tent as measured by the Cambridge Filter Method. Id., at 258. Petition
ers offer this consent order as evidence that the FTC authorized the use
of “light” and “low tar” descriptors as long as they accurately describe
Cambridge Filter Method test results. As the Government observes,
however, the decree only enjoined conduct. Brief for United States as
Amicus Curiae 26. And a consent order is in any event only binding on
the parties to the agreement. For all of these reasons, the consent order
does not support the conclusion that respondents’ claim is impliedly
pre-empted.

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eral statute is not the same as a policy of approval. Cf.
Sprietsma v. Mercury Marine, 537 U. S. 51 (2002) (holding
that the Coast Guard’s decision not to regulate propeller
guards did not impliedly pre-empt petitioner’s tort claims).14
More telling are the FTC’s recent statements regarding
the use of “light” and “low tar” descriptors. In 1997, the
Commission observed that “[t]here are no official definitions
for” the terms “ ‘light’ ” and “ ‘low tar,’ ” and it sought com
ments on whether “there [is] a need for official guidance with
respect to the terms” and whether “the descriptors convey
implied health claims.” 62 Fed. Reg. 48163. In November
2008, following public notice and comment, the Commission
rescinded its 1966 guidance concerning the Cambridge Filter
Method. 73 Fed. Reg. 74500. The rescission is a response
to “a consensus among the public health and scientific com
munities that the Cambridge Filter method is sufficiently
flawed that statements of tar and nicotine yields as measured
by that method are not likely to help consumers make in
formed decisions.” Id., at 74503. The Commission’s notice
of its proposal to rescind the guidance also reiterated the
original limits of that guidance, noting that it “only ad
dresse[d] simple factual statements of tar and nicotine yields.
It d[id] not apply to other conduct or express or implied
representations, even if they concern[ed] tar and nicotine
yields.” Id., at 40351.
In short, neither the handful of industry guidances and
consent orders on which petitioners rely nor the FTC’s inac
tion with regard to “light” descriptors even arguably justi
fies the pre-emption of state deceptive practices rules like
the MUTPA.
14 It seems particularly inappropriate to read a policy of authorization
into the FTC’s inaction when that inaction is in part the result of petition
ers’ failure to disclose study results showing that Cambridge Filter
Method test results do not reflect the amount of tar and nicotine that
consumers of “light” cigarettes actually inhale. See id., at 8–11.

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V
We conclude, as we did in Cipollone, that the Labeling Act
does not pre-empt state-law claims like respondents’ that are
predicated on the duty not to deceive. We also hold that the
FTC’s various decisions with respect to statements of tar
and nicotine content do not impliedly pre-empt respondents’
claim. Respondents still must prove that petitioners’ use of
“light” and “lowered tar” descriptors in fact violated the
state deceptive practices statute, but neither the Labeling
Act’s pre-emption provision nor the FTC’s actions in this
field prevent a jury from considering that claim. Accord
ingly, the judgment of the Court of Appeals is affirmed, and
the case is remanded for further proceedings consistent with
this opinion.
It is so ordered.
Justice Thomas, with whom The Chief Justice, Jus
tice Scalia, and Justice Alito join, dissenting.
This appeal requires the Court to revisit its decision in
Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992). As in
that case, the question before us is whether state-law claims
alleging that cigarette manufacturers misled the public about
the health effects of cigarettes are pre-empted by the Fed
eral Cigarette Labeling and Advertising Act, as amended in
1969 (Labeling Act or Act). The Labeling Act requires that
specific health warnings be placed on all cigarette packag
ing and advertising, 15 U. S. C. § 1333, in order to eliminate
“diverse, nonuniform, and confusing cigarette labeling and
advertising regulations with respect to any relationship
between smoking and health,” § 1331. To that end, § 5(b) of
the Labeling Act pre-empts any “requirement or prohibition
based on smoking and health . . . imposed under State law
with respect to the advertising or promotion of any ciga
rettes.” § 1334(b).
Whether § 5(b) pre-empts state common-law claims divided
the Court in Cipollone. The plurality opinion found some

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claims expressly pre-empted and others not, depending on
whether “the legal duty that is the predicate of the
common-law damages action constitutes a requirement or
prohibition based on smoking and health . . . imposed under
State law with respect to . . . advertising or promotion.”
505 U. S., at 524 (internal quotation marks omitted; emphasis
added). A majority of the Court disagreed with the plural
ity’s “predicate duty” approach. Id., at 543 (Blackmun, J.,
concurring in part, concurring in judgment in part, and dis
senting in part); id., at 552–554 (Scalia, J., concurring in
judgment in part and dissenting in part). In particular,
Justice Scalia recognized that the plurality’s interpreta
tion of § 5(b) created an unworkable test for pre-emption
with little or no relationship to the text of the statute. Id.,
at 544, 555–556. The intervening years have vindicated
Justice Scalia’s critical assessment; the lower courts have
consistently expressed frustration at the difficulty in apply
ing the Cipollone plurality’s test. Moreover, this Court’s
recent pre-emption decisions have undermined, and in some
cases overruled, central aspects of the plurality’s atextual
approach to express pre-emption generally, Riegel v. Med
tronic, Inc., 552 U. S. 312 (2008), and to § 5(b) of the Labeling
Act specifically, Lorillard Tobacco Co. v. Reilly, 533 U. S.
525 (2001).
The majority today ignores these problems and adopts the
methodology of the Cipollone plurality as governing law.
As a consequence, the majority concludes that state-law lia
bility for deceiving purchasers about the health effects of
smoking light cigarettes is not a “requirement or prohibition
based on smoking and health” under the Labeling Act. The
Court’s fidelity to Cipollone is unwise and unnecessary.
The Court should instead provide the lower courts with a
clear test that advances Congress’ stated goals by interpret
ing § 5(b) to expressly pre-empt any claim that “imposes an
obligation . . . because of the effect of smoking upon health.”
Cipollone, supra, at 554 (opinion of Scalia, J.).

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Respondents’ lawsuit under the Maine Unfair Trade Prac
tices Act (MUTPA), Me. Rev. Stat. Ann., Tit. 5, § 207 (Supp.
2008), is expressly pre-empted under § 5(b) of the Labeling
Act. The civil action is premised on the allegation that the
cigarette manufacturers misled respondents into believing
that smoking light cigarettes would be healthier for them
than smoking regular cigarettes. A judgment in respond
ents’ favor will thus result in a “requirement” that petition
ers represent the effects of smoking on health in a particular
way in their advertising and promotion of light cigarettes.
Because liability in this case is thereby premised on the ef
fect of smoking on health, I would hold that respondents’
state-law claims are expressly pre-empted by § 5(b) of the
Labeling Act. I respectfully dissent.
I
In Cipollone, a smoker and her spouse brought state
common-law claims for fraud, breach of warranty, and failure
to warn against cigarette manufacturers for their alleged
failure to adequately disclose the health risks of smoking.
505 U. S., at 509. As here, the cigarette manufacturer as
serted that the claims were pre-empted by § 5(b) of the
Labeling Act.
In deciding the case, the Court could not agree on the
meaning of the Labeling Act’s express pre-emption provi
sion. It produced three separate opinions, none of which
reflected the views of a majority of Justices. Relying heav
ily on a “presumption against the pre-emption of state police
power regulations,” id., at 518, a plurality opinion by Jus
tice Stevens settled on a “narrow reading” of the Labeling
Act that tested § 5(b)’s pre-emptive effect under a claim-by
claim approach, id., at 524. This approach considered each
state-law claim and asked whether it is predicated “on a duty
‘based on smoking and health.’ ” Id., at 528; see also id., at
524. If so, the claim is pre-empted. Id., at 524, 528. If,

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however, the claim is predicated on a “more general obliga
tion” under state law, it may proceed. Id., at 528–529.
Applying a test that it conceded lacked “theoretical ele
gance,” id., at 530, n. 27, the plurality held that the failure
to-warn claims were pre-empted “to the extent that those
claims rel[ied] on omissions or inclusions in . . . advertising
or promotions” of cigarettes. Id., at 531. The same was
true for one of the fraud claims, which alleged that the ciga
rette manufacturers had used their advertising to neutralize
the federally required warning labels. Id., at 527–528. The
plurality determined that these claims were “predicated on
a state-law prohibition against statements . . . that tend to
minimize the health hazards associated with smoking.” Id.,
at 527. Thus, according to the plurality, these state-law
claims sought recovery under the theory that the cigarette
manufacturer breached a duty based on smoking or health.
But the plurality found that the other fraud claim, which
alleged misrepresentation or concealment of a material fact,
was not pre-empted because it was based on a more general
state-law obligation: “the duty not to deceive.” Id., at
528–529.
Justice Blackmun, writing for three Justices, departed
from the plurality on the antecedent question whether the
Labeling Act pre-empted state common-law damages claims
at all. Id., at 535–542 (opinion, joined by Kennedy and
Souter, JJ., concurring in part, concurring in judgment in
part, and dissenting in part). He concluded that the phrase
“ ‘State law’ ” in § 5(b) referred only to “positive enactments
such as statutes and regulations.” Id., at 535. But Justice
Blackmun specifically noted that even if state common-law
claims were within the scope of the Labeling Act, he could
not join the plurality’s claim-by-claim approach because he
“perceive[d] no principled basis for many of the plurality’s
asserted distinctions among the common-law claims.” Id.,
at 543. Justice Blackmun wrote that Congress could not
have “intended to create such a hodgepodge of allowed and

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disallowed claims when it amended the pre-emption provi
sion in 1970,” and lamented the “difficulty lower courts
w[ould] encounter in attempting to implement” the plural
ity’s test. Id., at 543–544.
Justice Scalia, writing for two Justices, also faulted the
plurality for its claim-by-claim approach. Id., at 544–556
(opinion, joined by Thomas, J., concurring in judgment in
part and dissenting in part). Although he agreed with the
plurality that the phrase “ ‘State law’ ” in § 5(b) encompassed
state common-law claims as well as state statutes and regu
lations, id., at 548–549, Justice Scalia objected to the plu
rality’s invocation of a presumption against pre-emption to
narrowly interpret § 5(b), id., at 544, 545–547. Because Con
gress had expressed its intent to pre-empt state law by
enacting § 5(b), the Court’s “responsibility [was] to apply to
the text ordinary principles of statutory construction.” Id.,
at 545.1 By employing its “newly crafted doctrine of narrow
construction,” Justice Scalia wrote, the plurality arrived
at a cramped and unnatural construction of § 5(b) that failed
to give effect to the statutory text. Id., at 544–548.
Applying “ordinary principles” of statutory construction,
id., at 548, Justice Scalia determined that the proper test
for pre-emption of state-law claims under § 5(b) was far less
complicated than the plurality’s claim-by-claim approach.
As he explained, “[o]nce one is forced to select a consistent
methodology for evaluating whether a given legal duty is
‘based on smoking and health,’ it becomes obvious that the
methodology must focus not upon the ultimate source of the
duty . . . but upon its proximate application.” Id., at 553.
1 Justice Scalia also criticized the plurality for announcing a new rule
that the enactment of an express pre-emption clause eliminates any con
sideration of implied pre-emption. He explained that this new rule cre
ated mischief because, when combined with the presumption against pre
emption, it placed a heavy burden of exactitude on Congress when it
wishes to say anything about pre-emption. See Cipollone, 505 U. S., at
547–548.

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This “proximate application” test, therefore, focuses not on
the state-law duty invoked by the plaintiff, but on the effect
of the suit on the cigarette manufacturer’s conduct—i. e., the
“requirement” or “prohibition” that would be imposed under
state law. Put simply, if, “whatever the source of the duty,
[the claim] imposes an obligation . . . because of the effect of
smoking upon health,” it is pre-empted. Id., at 554; see also
id., at 555 (“The test for pre-emption in this setting should be
one of practical compulsion, i. e., whether the law practically
compels the manufacturers to engage in behavior that Con
gress has barred the States from prescribing directly”).
Justice Scalia also seconded Justice Blackmun’s concern
that the lower courts would find the plurality’s distinctions
between materially identical state-law claims to be incapable
of application: “A disposition that raises more questions than
it answers does not serve the country well.” Id., at 556.
II
Sixteen years later, we must confront Cipollone to resolve
the question presented in this case: whether respondents’
class-action claims for fraudulent marketing under the
MUTPA are pre-empted by § 5(b) of the Labeling Act. The
majority adheres to Cipollone because it “remain[s] per
suaded” that the plurality’s construction of § 5(b) was
“ ‘fair.’ ” Ante, at 84. I disagree. The Court should dis
card the Cipollone plurality’s ill-conceived predicate-duty
approach and replace it with Justice Scalia’s far more
workable and textually sound “proximate application” test.
The majority does not assert that the Cipollone plurality
opinion is binding precedent, and rightly so. Because the
“plurality opinion . . . did not represent the views of a major
ity of the Court, we are not bound by its reasoning.” CTS
Corp. v. Dynamics Corp. of America, 481 U. S. 69, 81 (1987)
(footnote omitted). At most, Cipollone is a “point of refer
ence for further discussion.” Texas v. Brown, 460 U. S. 730,
737 (1983) (plurality opinion). But even if the plurality opin

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ion had some force beyond its mere persuasive value, it nev
ertheless should be abandoned. It is unworkable; it has
been overtaken by more recent decisions of this Court; and
it cannot be reconciled with a commonsense reading of the
text of § 5(b).
A
As predicted by a majority of the Justices in Cipollone,
the plurality opinion’s claim-by-claim approach has proved
unworkable in the lower federal courts and state courts.
The District Court in this case properly observed that
“courts remain divided about what the decision means and
how to apply it” and that “Cipollone’s distinctions, though
clear in theory, defy clear application.” 436 F. Supp. 2d 132,
142 (Me. 2006). Other courts have expressed similar frus
tration with the Cipollone framework. See, e. g., Glassner
v. R. J. Reynolds Tobacco Co., 223 F. 3d 343, 348 (CA6 2000)
(“Applying the plurality opinion in Cipollone to the Com
plaint in the present case is no easy task”); Huddleston v.
R. J. Reynolds Tobacco Co., 66 F. Supp. 2d 1370, 1380 (ND
Ga. 1999) (“It would be an understatement to say that it is
difficult to apply the plurality opinion in Cipollone to the
Amended Complaint in this case. It is an impossibility”);
In re Welding Fume Prods. Liability Litigation, 364
F. Supp. 2d 669, 681, n. 13 (ND Ohio 2005) (“[I]n Cipollone,
the Supreme Court . . . delivered a fractured plurality opin
ion that is not easy to comprehend”); Whiteley v. Philip Mor
ris, Inc., 117 Cal. App. 4th 635, 669–670, 11 Cal. Rptr. 3d 807,
835–836 (2004) (“[Cipollone is] ‘difficult’ . . . due to the inher
ent contradiction at the core of the case”); Mangini v. R. J.
Reynolds Tobacco Co., 21 Cal. Rptr. 2d 232, 244 (Cal. App.
1993) (officially depublished) (“Cipollone draws no bright
lines amenable to easy application”), aff ’d, 7 Cal. 4th 1057,
875 P. 2d 73 (1994).
The Court should not retain an interpretative test that has
proved incapable of implementation. “[T]he mischievous
consequences to litigants and courts alike from the perpetua

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98 ALTRIA GROUP, INC. v. GOOD
Thomas, J., dissenting
tion of an unworkable rule are too great.” Swift & Co. v.
Wickham, 382 U. S. 111, 116 (1965); Federal Election
Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449, 501
(2007) (Scalia, J., concurring in part and concurring in judg
ment) (“Stare decisis considerations carry little weight when
an erroneous ‘governing decisio[n]’ has created an ‘unwork
able’ legal regime” (quoting Payne v. Tennessee, 501 U. S.
808, 827 (1991))). We owe far more to the lower courts,
which depend on this Court’s guidance, and to litigants, who
must conform their actions to the Court’s interpretation of
federal law. The Cipollone plurality’s test for pre-emption
under § 5(b) should be abandoned for this reason alone.
B
Furthermore, in the years since Cipollone was decided,
this Court has altered its doctrinal approach to express pre
emption. The Cipollone plurality justified what it described
as the “theoretical [in]elegance” of its construction of § 5(b)
by relying on the presumption against pre-emption, which,
it argued, required a narrow, but “fair,” construction of the
statute. 505 U. S., at 530, n. 27. See, e. g., id., at 518 (ma
jority opinion) (“This presumption reinforces the appropri
ateness of a narrow reading of § 5”); id., at 523 (plurality
opinion) (“[W]e must . . . narrowly construe the precise lan
guage of § 5(b)”); id., at 524 (§ 5(b) must be given “a fair but
narrow reading”); id., at 529 (“[W]e conclude that the phrase
‘based on smoking and health’ fairly but narrowly construed
does not encompass the more general duty not to make
fraudulent statements”). Of course, as Justice Scalia ex
plained, there was nothing “fair” about imposing an artifi
cially narrow construction on the Labeling Act’s pre-emption
provision. See id., at 545 (opinion concurring in judgment in
part and dissenting in part) (explaining that the presumption
against pre-emption “dissolves once there is conclusive evi
dence of intent to pre-empt in the express words of the stat
ute itself ”).

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Since Cipollone, the Court’s reliance on the presumption
against pre-emption has waned in the express pre-emption
context. In 2002, for example, the Court unanimously ex
plained that the “task of statutory construction must in the
first instance focus on the plain wording of the [express pre
emption] clause, which necessarily contains the best evidence
of Congress’ pre-emptive intent.” Sprietsma v. Mercury
Marine, 537 U. S. 51, 62–63 (internal quotation marks omit
ted). Without referring to any presumption against pre
emption, the Court decided that the Federal Boat Safety Act
of 1971’s express pre-emption provision did not pre-empt
state-law claims. Id., at 62–64. Most other decisions since
Cipollone also have refrained from invoking the presumption
in the context of express pre-emption. See, e. g., Rowe v.
New Hampshire Motor Transp. Assn., 552 U. S. 364 (2008);
Engine Mfrs. Assn. v. South Coast Air Quality Manage
ment Dist., 541 U. S. 246 (2004); Buckman Co. v. Plaintiffs’
Legal Comm., 531 U. S. 341 (2001); United States v. Locke,
529 U. S. 89 (2000); Geier v. American Honda Motor Co., 529
U. S. 861 (2000).
The Court has invoked the presumption sporadically dur
ing this timeframe. As the majority notes, ante, at 77, Med
tronic, Inc. v. Lohr, 518 U. S. 470 (1996), applied the pre
sumption against pre-emption in deciding that the federal
manufacturing and labeling requirements of the Medical De
vice Amendments of 1976 (MDA) did not pre-empt state
common-law claims. Id., at 500–501. Like Cipollone be
fore it, Lohr produced a fractured decision featuring three
opinions. 518 U. S., at 474 (opinion of Stevens, J.); id., at
503 (Breyer, J., concurring in part and concurring in judg
ment); id., at 509 (O’Connor, J., concurring in part and
dissenting in part). And, like Cipollone, Lohr’s approach
to express pre-emption predates the Court’s recent juris
prudence on the topic. In fact, this Court last year re
visited the pre-emption provision of the MDA, 21 U. S. C.

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100 ALTRIA GROUP, INC. v. GOOD
Thomas, J., dissenting
§ 360k(a)(1), and did not employ any presumption against
pre-emption. Riegel, 552 U. S. 312. See infra, at 101–102.2
More recently, in Reilly, 533 U. S. 525, a case revisiting
the meaning of § 5(b) of the Labeling Act, the Court briefly
alluded to the presumption, but did not rely on it to reach its
decision. See id., at 541–542, 546–551. Indeed, the Court’s
cursory treatment of the presumption in Reilly stands in
stark contrast to the First Circuit decision it reversed; the
First Circuit relied heavily on the “full force” of the pre
sumption to determine that the regulations at issue were not
pre-empted. See Consolidated Cigar Corp. v. Reilly, 218
F. 3d 30, 38–41 (2000). This Court, in overturning that judg
ment, declined to employ the presumption in its construction
of § 5(b). See Reilly, 533 U. S., at 546–551. Justice Ste
vens highlighted this very point in dissent, arguing that if
the presumption had been faithfully applied, the result would
have been different. Id., at 591–593 (opinion concurring in
part, concurring in judgment in part, and dissenting in part).
The majority also relies on Bates v. Dow Agrosciences
LLC, 544 U. S. 431 (2005), where the presumption was again
mentioned, but only in dicta. As in Reilly, the presumption
did not drive the Court’s construction of the statute at issue.
544 U. S., at 449 (explaining that the presumption meant just
that the holding of no pre-emption would have been the same
2 Also, as in Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), the
fractured decision in Lohr was a source of confusion for the lower courts.
See Kemp v. Medtronic, Inc., 231 F. 3d 216, 224 (CA6 2000) (“The various
courts of appeals that have confronted issues of preemption arising under
the MDA have struggled mightily with Lohr’s language in the effort to
discern its holding”); see also Martin v. Medtronic, Inc., 254 F. 3d 573, 579
(CA5 2001) (“Because only parts of Justice Stevens’s opinion commanded
a majority, extracting the final meaning of Lohr is no easy task. . . . Al
though Justice Breyer’s concurrence very specifically disavows the view
that common law duties cannot provide substantive requirements for the
purpose of preemption, neither his concurrence nor the plurality opinion
offers much help to us in developing the point”). The confusion was
cleared up in Riegel. See infra, at 101–103.

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“even if [respondent’s] alternative [construction of the stat
ute] were just as plausible as our reading of [the statute’s]
text”); see also id., at 457 (Thomas, J., concurring in judg
ment in part and dissenting in part) (agreeing that the case
should be vacated and remanded and reiterating that the
“presumption does not apply . . . when Congress has included
within a statute an express pre-emption provision”). At
bottom, although the Court’s treatment of the presumption
against pre-emption has not been uniform, the Court’s ex
press pre-emption cases since Cipollone have marked a re
treat from reliance on it to distort the statutory text.
If any doubt remained, it was eliminated last Term in Rie
gel. The question in Riegel, as noted above, was whether
the MDA expressly pre-empts state common-law claims
“challenging the safety and effectiveness of a medical device
given premarket approval by the Food and Drug Administra
tion.” 552 U. S., at 315. Over the dissent of one Justice,
the Court held that the state-law claims were pre-empted
because the requirements the plaintiffs sought to impose
were “ ‘different from, or in addition to, any requirement
applicable . . . to the device’ ” under federal law. Id., at 316
(quoting 21 U. S. C. § 360k(a)(1)). The Court interpreted the
statute without reference to the presumption or any per
ceived need to impose a narrow construction on the provision
in order to protect the police power of the States. Rather,
the Court simply construed the MDA in accordance with or
dinary principles of statutory construction.
This was not accidental. The dissent focused on the
Court’s refusal to invoke the presumption in order to save
the state-law claims from pre-emption. 552 U. S., at 334–
335 (opinion of Ginsburg, J.). The dissent was adamant
that “[f]ederal laws containing a preemption clause do not
automatically escape the presumption against preemption.”
Id., at 334; id., at 335 (“Where the text of a preemption clause
is open to more than one plausible reading, courts ordinarily
‘accept the reading that disfavors pre-emption’ ” (quoting

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102 ALTRIA GROUP, INC. v. GOOD
Thomas, J., dissenting
Bates, supra, at 449)). In accordance with the presumption,
the dissent would have found the state-law claims under re
view to fall beyond the reach of the MDA’s express pre
emption provision. 552 U. S., at 334–335; see also id., at 338,
n. 8; id., at 339, n. 9 (rejecting the majority’s construction of
§ 360h(d) because “the presumption against preemption [is]
operative even in construing a preemption clause”). Given
the dissent’s clear call for the use of the presumption against
pre-emption, the Court’s decision not to invoke it was neces
sarily a rejection of any role for the presumption in constru
ing the statute.
Justice Stevens also declined to invoke the presumption
in his opinion. Id., at 330–333 (opinion concurring in part
and concurring in judgment). In his view, the “significance
of the pre-emption provision in the [MDA] was not fully ap
preciated until many years after it was enacted” and, there
fore, it is “a statute whose text and general objective cover
territory not actually envisioned by its authors.” Id., at
330–331. But Justice Stevens’ opinion in Riegel—unlike
the majority opinion here, the plurality opinion in Cipollone,
and the dissenting opinion in Riegel—did not invoke the pre
sumption to bend the text of the statute to meet the per
ceived purpose of Congress. Instead, Justice Stevens
correctly found that “ ‘it is ultimately the provisions of our
laws rather than the principal concerns of our legislators by
which we are governed.’ ” 552 U. S., at 331 (quoting Oncale
v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79 (1998)).
In light of Riegel, there is no authority for invoking the
presumption against pre-emption in express pre-emption
cases. The majority here thus turns to Lohr to revive the
presumption and, in turn, to justify its restrictive reading of
the Labeling Act’s express pre-emption provision. But, as
Riegel plainly shows, the Court is no longer willing to unrea
sonably interpret expressly pre-emptive federal laws in the
name of “ ‘congressional purpose,’ ” ante, at 84, or because
“Congress has legislated in a field traditionally occupied by

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the States,” ante, at 77. The text of the statute must
control.
Riegel also undermined Cipollone in an even more funda
mental way: It conclusively decided that a common-law cause
of action imposes a state-law “ ‘requiremen[t]’ ” that may be
pre-empted by federal law. 552 U. S., at 324–325 (“Absent
other indication, reference to a State’s ‘requirements’ in
cludes its common-law duties. . . . Indeed, one would think
that tort law, applied by juries under a negligence or strict
liability standard, is less deserving of preservation [than reg
ulatory legislation]”). Justice Blackmun’s contrary interpre
tation of § 5(b) of the Labeling Act in Cipollone, 505 U. S., at
538–539 (opinion concurring in part, concurring in judgment
in part, and dissenting in part), which provided the votes
necessary for the judgment, thus is no longer tenable. In
light of Riegel’s rejection of the presumption against pre
emption relied on by the plurality, as well as the definition
of “requirements” relied on in Justice Blackmun’s opinion,
Cipollone’s approach to express pre-emption is nothing more
than “a remnant of abandoned doctrine.” Planned Parent
hood of Southeastern Pa. v. Casey, 505 U. S. 833, 855 (1992).
C
The Cipollone plurality’s reading of § 5(b) of the Labeling
Act was further undermined by this Court’s decision in
Reilly, 533 U. S. 525. There, the Court confronted regula
tions imposed by the Massachusetts attorney general on the
location of tobacco advertising pursuant to the Common
wealth’s unfair trade practices statute. Id., at 533–536.
The Court found the regulations—to the extent they applied
to cigarettes—expressly pre-empted because, although Mas
sachusetts remained free to enact “generally applicable zon
ing restrictions,” its imposition of “special requirements or
prohibitions ‘based on smoking and health’ ‘with respect to
the advertising or promotion’ of cigarettes” fell within the
ambit of § 5(b)’s pre-emptive sweep. Id., at 551.

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Reilly did not ignore Cipollone. It cited the plurality
opinion extensively in its discussion of the basic history and
text of the Labeling Act. 533 U. S., at 540–546. But in ana
lyzing whether the regulations enacted by the Massachusetts
attorney general were expressly pre-empted, the Court was
silent about Cipollone. 533 U. S., at 546–551. Unlike the
District Court, which saw “the central question for purposes
of pre-emption [as] whether the regulations create[d] a predi
cate legal duty based on smoking and health,” id., at 537,
the Court’s substantive examination of the regulations under
§ 5(b) included no mention of the Cipollone plurality’s “predi
cate duty” test. See 533 U. S., at 546–551. Instead, the
Court disagreed with “the Attorney General’s narrow con
struction” of the statute’s “ ‘based on smoking and health’ ”
language, and concluded that the regulations were pre
empted because they were “motivated by” and “intertwined
with” the concerns about smoking and health. Id., at
547–548.
Reilly, therefore, cannot be reconciled with the Cipollone
plurality’s interpretation of § 5(b) of the Labeling Act. The
regulations at issue in Reilly were enacted to implement a
Massachusetts state law imposing a duty against unfair and
deceptive trade practices—the same predicate duty asserted
under the MUTPA in this case. 533 U. S., at 533. The
state-law duty at issue in Reilly was no less general than
the state-law duty at issue in this case or the state-law fraud
claims confronted in Cipollone. Compare Mass. Gen. Laws,
ch. 93A, § 2(a) (West 1996) (“Unfair methods of competition
and unfair or deceptive acts or practices in the conduct of
any trade or commerce are hereby declared unlawful”), with
Me. Rev. Stat. Ann., Tit. 5, § 207 (Supp. 2008) (“Unfair meth
ods of competition and unfair or deceptive acts or practices
in the conduct of any trade or commerce are declared unlaw
ful”), and Cipollone, supra, at 528 (explaining that the “pred
icate” of the plaintiff ’s fraudulent misrepresentation claim
was “a state-law duty not to make false statements of mate

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Thomas, J., dissenting
rial fact or to conceal such facts”). Faithful application of
the Cipollone plurality opinion, therefore, would have re
quired the Court in Reilly to uphold the regulations. In
deed, Justice Stevens argued as much in his dissent. 533
U. S., at 597 (opinion concurring in part, concurring in judg
ment in part, and dissenting in part) (noting that “[n]ary a
word in any of the three Cipollone opinions supports the
thesis that § 5 should be interpreted to pre-empt state regu
lation of the location of signs advertising cigarettes”).
And yet, the majority today finds that Reilly and Cipol
lone are perfectly compatible. It contends that, although
the regulations in question in Reilly “derived from a general
deceptive practices statute like the one at issue in this case,”
they were pre-empted because they “targeted advertising
that tended to promote tobacco use by children instead of
prohibiting false or misleading statements.” Ante, at 83.
According to the majority, that legal duty contrasts with the
regulations here, as “[t]he MUTPA says nothing about either
‘smoking’ or ‘health.’ ” Ante, at 84; see also ante, at 81.
But the Cipollone plurality expressly rejected any distinc
tion between targeted regulations like those in Reilly and
general duties imposed by the common law. 505 U. S., at
522. In fact, the general duties underlying the failure-to
warn and warning-neutralization claims in Cipollone—which
the plurality found to be pre-empted—say nothing about
smoking and health. Id., at 524; see also id., at 553 (Scalia,
J., concurring in judgment in part and dissenting in part)
(noting that the duty to warn about a product’s dangers was
not “specifically crafted with an eye toward ‘smoking and
health’ ”).
Accordingly, Reilly is better understood as establishing
that even a general duty can impose requirements or prohibi
tions based on smoking and health. Reilly weakened the
force of the Cipollone plurality’s “predicate duty” approach
to the pre-emptive effect of § 5(b) and cast doubt on its con
tinuing utility.

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106 ALTRIA GROUP, INC. v. GOOD
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D
Finally, the Cipollone plurality’s approach should be dis
carded because its “predicate duty” approach is unpersua
sive as an initial matter. In considering the warning
neutralization claim, for example, the Cipollone plurality
asserted that the claim is predicated on a state-law prohibi
tion against minimizing the health risks associated with
smoking. 505 U. S., at 527. The Court today reaffirms this
view. Ante, at 81; see also ante, at 84 (describing § 5(b) as
expressly pre-empting “rules . . . that are based on smoking
and health”). But every products liability action, including
a failure-to-warn action, applies generally to all products.
See Cipollone, 505 U. S., at 553 (opinion of Scalia, J.).
Thus, the “duty” or “rule” involved in a failure-to-warn claim
is no more specific to smoking and health than is a common
law fraud claim based on the “duty” or “rule” not to use
deceptive or misleading trade practices. Yet only for the
latter was the Cipollone plurality content to ignore the con
text in which the claim is asserted. This shifting level of
generality was identified as a logical weakness in the original
Cipollone plurality decision by a majority of the Court, id.,
at 543 (Blackmun, J., concurring in part, concurring in judg
ment in part, and dissenting in part); id., at 553–554 (opinion
of Scalia, J.), and it remains equally unconvincing today.
It is therefore unsurprising that the Court’s defense of the
plurality’s confusing test is confined to one sentence and a
footnote. See ante, at 84 (“While we again acknowledge
that our analysis of these claims may lack ‘theoretical ele
gance,’ we remain persuaded that it represents ‘a fair under
standing of congressional purpose’ ” (quoting Cipollone,
supra, at 529–530, n. 27)); ante, at 81, n. 7. The majority
instead argues that this approach “fails to explain why Con
gress would . . . permi[t] cigarette manufacturers to engage
in fraudulent advertising.” Ibid. But no explanation is
necessary; the text speaks for itself. Congress has pre
empted only those claims that would impose “requirement[s]

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or prohibition[s] based on smoking and health.” 15 U. S. C.
§ 1334(b). Thus, if cigarette manufacturers were to falsely
advertise their products as “American-made,” or “the official
cigarette of Major League Baseball,” state-law claims arising
from that wrongful behavior would not be pre-empted.
Furthermore, contrary to the majority’s policy arguments,
faithful application of the statutory language does not au
thorize fraudulent advertising with respect to smoking and
health.3 Any misleading promotional statements for ciga
rettes remain subject to federal regulatory oversight under
the Labeling Act. See § 1336. The relevant question thus
is not whether “petitioners will be prohibited from selling as
‘light’ or ‘low tar’ only those cigarettes that are not actually
light and do not actually deliver less tar and nicotine.”
Ante, at 83, n. 10. Rather, the issue is whether the Labeling
Act allows regulators and juries to decide, on a state-by
state basis, whether petitioners’ light and low-tar descriptors
were in fact fraudulent, or instead whether § 5(b) charged
the Federal Government with reaching a comprehensive
judgment with respect to this question.
Congress chose a uniform federal standard. Under the
Labeling Act, Congress “establish[ed] a comprehensive Fed
eral Program to deal with cigarette labeling and advertis
ing,” 15 U. S. C. § 1331, so that “commerce and the national
economy may . . . not [be] impeded by diverse, nonuniform,
and confusing cigarette labeling and advertising regulations
with respect to any relationship between smoking and
health,” § 1331(2)(B).4 The majority’s distorted interpreta
3 The majority’s policy-based attack could just as easily be leveled
against its own determination that the Labeling Act pre-empts failure-to
warn claims. But just as there is no basis in fact or law to contend that
the Labeling Act encourages the marketing of hazardous products without
adequate warning labels, ante, at 81–82, n. 8, there is no basis to contend
that the text of the Labeling Act permits fraudulent advertising.
4 The majority contends that the relatively constrained enforcement
power of the Federal Trade Commission (FTC) in 1970 undermines any
argument that Congress intended the Labeling Act to prevent States from

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108 ALTRIA GROUP, INC. v. GOOD
Thomas, J., dissenting
tion of § 5(b) defeats this express congressional purpose,
opening the door to an untold number of deceptive-practices
lawsuits across the country. The question whether mar
keting a light cigarette is “ ‘misrepresentative’ ” in light of
compensatory behavior “would almost certainly be answered
differently from State to State.” Cipollone, supra, at 553
(Scalia, J., concurring in judgment in part and dissenting in
part). This will inevitably result in the nonuniform imposi
tion of liability for the marketing of light and/or low-tar ciga
rettes—the precise problem that Congress intended § 5(b)
to remedy.
In light of these serious flaws in the majority’s approach,
even if the Cipollone plurality opinion were binding prece
dent, the Court “should not hesitate to allow our precedent
to yield to the true meaning of an Act of Congress when
our statutory precedent is ‘unworkable’ or ‘badly reasoned.’ ”
Clark v. Martinez, 543 U. S. 371, 402 (2005) (Thomas, J., dis
senting) (quoting Holder v. Hall, 512 U. S. 874, 936 (1994)
(Thomas, J., concurring in judgment), in turn quoting Payne,
501 U. S., at 827). Where, as here, there is “confusion fol
lowing a splintered decision,” that “is itself a reason for reex
amining that decision.” Nichols v. United States, 511 U. S.
738, 746 (1994). When a decision of this Court has failed
to properly interpret a statute, we should not “place on the
shoulders of Congress the burden of the Court’s own error.”
Girouard v. United States, 328 U. S. 61, 69–70 (1946).5
regulating deceptive advertising and marketing of cigarettes. Ante, at
79–80, n. 6. I am unwilling to rely on the majority’s perception of the
relative power of the FTC in 1970 to ignore Congress’ stated purpose
in enacting the Labeling Act and the plain meaning of the Act’s express
pre-emption provision.
5 The United States, in its amicus brief and at oral argument, conspicu
ously declined to address express pre-emption or defend the Cipollone
opinion’s reasoning. See Brief for United States as Amicus Curiae 14–
33. Instead, it addressed only the question of implied pre-emption, an
issue I do not reach because of my resolution of the question on express
pre-emption.

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III
Applying the proper test—i. e., whether a jury verdict on
respondents’ claims would “impos[e] an obligation” on the
cigarette manufacturer “because of the effect of smoking
upon health,” Cipollone, 505 U. S., at 554 (opinion of Scalia,
J.), respondents’ state-law claims are expressly pre-empted
by § 5(b) of the Labeling Act. Respondents, longtime smok
ers of Marlboro Lights, claim that they have suffered an in
jury as a result of petitioners’ decision to advertise these
cigarettes as “light” and/or “low-tar and low-nicotine prod
ucts.” See 436 F. Supp. 2d, at 144–145. They claim that
petitioners marketed their cigarettes as “light” and/or “low
tar and low-nicotine products” despite knowledge that light
cigarette smokers would engage in compensatory behavior
causing them to inhale at least as much tar and nicotine as
smokers of regular cigarettes. Ibid. Respondents thus al
lege that they were misled into thinking that they were gain
ing a health advantage by smoking the light cigarettes, ibid.,
and, as a result, petitioners’ conduct was an “unfair or decep
tive ac[t] or practic[e]” under the MUTPA, Me. Rev. Stat.
Ann., Tit. 5, § 207; 436 F. Supp. 2d, at 133.
Respondents’ claims seek to impose liability on petitioners
because of the effect that smoking light cigarettes had on
their health. The alleged misrepresentation here—that
“light” and “low-tar” cigarettes are not as healthy as adver
tised—is actionable only because of the effect that smoking
light and low-tar cigarettes had on respondents’ health.
Otherwise, any alleged misrepresentation about the effect of
the cigarettes on health would be immaterial for purposes of
the MUTPA and would not be the source of the injuries that
provided the impetus for the class-action lawsuit. See State
v. Weinschenk, 2005 ME 28, ¶ 17, 868 A. 2d 200, 206 (“An act
or practice is deceptive [under the MUTPA] if it is a material
representation, omission, act or practice that is likely to mis
lead consumers acting reasonably under the circumstances”
(emphasis added)). Therefore, with this suit, respondents

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Thomas, J., dissenting
seek to require the cigarette manufacturers to provide addi
tional warnings about compensatory behavior, or to prohibit
them from selling these products with the “light” or “low
tar” descriptors. This is exactly the type of lawsuit that is
pre-empted by the Labeling Act. Cf. Rowe, 552 U. S., at
372 (finding pre-emption of a Maine regulation of shipping of
tobacco products where “[t]he Maine law . . . produces the
very effect that the federal law sought to avoid”).
Because the proper test for pre-emption is to look at the
factual basis of a complaint to determine if a claim imposes
a requirement based on smoking and health, there is no
meaningful distinction to be drawn in this case between
common-law failure-to-warn claims and claims under the
MUTPA.6 As the majority readily admits, both types of
claims impose duties with respect to the same conduct—i. e.,
the marketing of “light,” “low-tar,” and “low-nicotine” ciga
rettes. See ante, at 82, n. 9. If the claims arise from identi
cal conduct, the claims impose the same requirement or pro
hibition with respect to that conduct. And when that
allegedly wrongful conduct involves misleading statements
about the health effects of smoking a particular brand of cig
arette, the liability and resulting requirement or prohibition
are, by definition, based on smoking and health.
6 The majority’s observation that no warning-neutralization claim is at
issue in this case, ante, at 82, n. 9, misses the point. The principal weak
ness in the Cipollone plurality’s logic is not its distinction between claims
for warning neutralization and claims for fraud. It is the fact that the
predicate duty underlying New Jersey’s products liability law, from which
the majority now claims the warning-neutralization claim derived, see
ante, at 81–82, n. 8, was no more specific to smoking and health than the
predicate duty underlying the fraud claim, see Cipollone, 505 U. S., at
552–553 (opinion of Scalia, J.) (“Each duty transcends the relationship
between the cigarette companies and cigarette smokers; neither duty was
specifically crafted with an eye toward ‘smoking and health’ ”); id., at 543
(opinion of Blackmun, J.); see also supra, at 106. Thus, the products liabil
ity and the fraud claims must stand or fall together. The majority’s re
fusal to address the logical inconsistency of its approach remains as glaring
today as it was in Cipollone.

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Thomas, J., dissenting
Finally, at oral argument, respondents argued that their
claims do not impose requirements based on smoking and
health because the damages they seek to recover are not
based on the effect of smoking on their health; rather, re
spondents are “asking . . . for the difference in value between
a product [they] thought [they] were buying and a product
[they] actually bought.” Tr. of Oral Arg. 29. But the re
quirement or prohibition covered by § 5(b) is created by the
imposition of liability for particular conduct—here, the way
in which petitioners marketed “light” and “low-tar,” and
“low-nicotine” cigarettes—not by the manner in which re
spondents have chosen to measure their damages. No mat
ter how respondents characterize their damages claim, they
have not been injured for purposes of the MUTPA, and thus
cannot recover, unless their decision to purchase the ciga
rettes had a negative effect on their health.
In any event, respondents sought “such injunctive relief as
may be appropriate” in this case. App. 42a. The MUTPA
specifically authorizes “other equitable relief, including an
injunction,” to remedy unfair or deceptive trade practices.
Me. Rev. Stat. Ann., Tit. 5, § 213(1) (2002). And a court
crafted injunction prohibiting petitioners from marketing
light cigarettes would be no less a requirement or prohibition
than the regulations found to be pre-empted in Reilly. In
the end, no matter what form the remedy takes, the liability
with respect to the specific claim still creates the require
ment or prohibition. When that liability is necessarily
premised on the effects of smoking on health, as respondents’
claims are here, the civil action is pre-empted by § 5(b) of
the Labeling Act.
IV
The Court today elects to convert the Cipollone plurality
opinion into binding law, notwithstanding its weakened doc
trinal foundation, its atextual construction of the statute, and
the lower courts’ inability to apply its methodology. The re
sulting confusion about the nature of a claim’s “predicate

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duty” and inevitable disagreement in the lower courts as to
what type of representations are “material” and “mislead
ing” will have the perverse effect of increasing the nonuni
formity of state regulation of cigarette advertising, the exact
problem that Congress intended § 5(b) to remedy. It may
even force us to yet again revisit the Court’s interpretation
of the Labeling Act. Because I believe that respondents’
claims are pre-empted under § 5(b) of the Labeling Act,
I respectfully dissent.