Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)

Author: Justice Blackmun

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Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992)

JUSTICE BLACKMUN, with whom JUSTICE KENNEDY and JUSTICE SOUTER join, concurring in part, concurring in the judgment in part, and dissenting in part.


The Court today would craft a compromise position concerning the extent to which federal law preempts persons injured by cigarette manufacturers’ unlawful conduct from bringing state common law damages claims against those manufacturers. I, however, find the Court’s divided holding with respect to the original and amended versions of the federal statute entirely unsatisfactory. Our precedents do not allow us to infer a scope of preemption beyond that which clearly is mandated by Congress’ language. In my view, neither version of the federal legislation at issue here provides the kind of unambiguous evidence of congressional intent necessary to displace state common law damages claims. I therefore join parts I, II, III, and IV of the Court’s opinion, but dissent from parts V and VI.


I agree with the Court’s exposition, in part III of its opinion, of the underlying principles of preemption law, and in particular with its recognition that the preemptive scope of the Federal Cigarette Labeling and Advertising Act (the 1965 Act) and the Public Health Cigarette Smoking Act of 1969 (the 1969 Act) is "governed entirely by the express language" of the statutes’ preemption provisions. Ante at 517. Where, as here, Congress has included in legislation a specific provision addressing -- and indeed, entitled -- preemption, the Court’s task is one of statutory interpretation -- only to "identify the domain expressly preempted" by the provision. Ibid. An interpreting court must

"begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose."

FMC Corp. v. Holliday, 498 U.S. 52, 57 (1990), quoting Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985). See California Coastal Comm’n. v. Granite Rock Co., 480 U.S. 572, 591-593 (1987); California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282 (1987) (opinion of Marshall, J.). We resort to principles of implied preemption -- that is, inquiring whether Congress has occupied a particular field with the intent to supplant state law or whether state law actually conflicts with federal law, see English v. General Electric Co., 496 U.S. 72, 79 (1990) -- only when Congress has been silent with respect to preemption.

I further agree with the Court that we cannot find the state common law damages claims at issue in this case preempted by federal law in the absence of clear and unambiguous evidence that Congress intended that result. See ante at 516. The Court describes this reluctance to infer preemption in ambiguous cases as a "presumption against the preemption of state police power regulations." Ante at 518. Although many of the cases in which the Court has invoked such a presumption against displacement of state law have involved implied preemption, see, e.g., Florida Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 146-152 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 236-237 (1947), this Court often speaks in general terms without reference to the nature of the preemption at issue in the given statutory scheme. See, e.g., Maryland v. Louisiana, 451 U.S. 725, 746 (1981) ("Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law"); Avocado Growers, 373 U.S. at 146-147 ("[W]e are not to conclude that Congress legislated the ouster of this [state] statute . . . in the absence of an unambiguous congressional mandate to that effect"); Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 780 (1947) ("Any indulgence in construction should be in favor of the States, because Congress can speak with drastic clarity whenever it chooses to assure full federal authority, completely displacing the States") (opinion of Frankfurter, J.).

The principles of federalism and respect for state sovereignty that underlie the Court’s reluctance to find preemption where Congress has not spoken directly to the issue apply with equal force where Congress has spoken, though ambiguously. In such cases, the question is not whether Congress intended to preempt state regulation, but to what extent. We do not, absent unambiguous evidence, infer a scope of preemption beyond that which clearly is mandated by Congress’ language.{1} I therefore agree with the Court’s unwillingness to conclude that the state common law damages claims at issue in this case are preempted unless such result is "`the clear and manifest purpose of Congress.’" Ante at 516 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. at 230).


I also agree with the Court’s application of the foregoing principles in part IV of its opinion, where it concludes that none of petitioner’s common law damages claims are preempted by the 1965 Act. In my view, the words of § 5(b) of that Act ("No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act") can bear only one meaning: that States are prohibited merely from "mandating particular cautionary statements . . . in cigarette advertisements." Ante at 518. As the Court recognizes, this interpretation comports with Congress’ stated purpose of avoiding "`diverse, nonuniform, and confusing labeling and advertising regulations’" relating to smoking and health. Ante at 519 (quoting 15 U.S.C. § 1331(2)). The narrow scope of federal preemption is thus apparent from the statutory text, and it is correspondingly impossible to divine any "clear and manifest purpose" on the part of Congress to preempt common law damages actions.


My agreement with the Court ceases at this point. Given the Court’s proper analytical focus on the scope of the express preemption provisions at issue here and its acknowledgement that the 1965 Act does not preempt state common law damages claims, I find the Court’s conclusion that the 1969 Act preempts at least some common law damages claims little short of baffling. In my view, the modified language of § 5(b), 15 U.S.C. § 1334(b) ("No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this Act"), no more "clearly" or "manifestly" exhibits an intent to preempt state common law damages actions than did the language of its predecessor in the 1965 Act. Nonetheless, the Court reaches a different conclusion, and its reasoning warrants scrutiny.


The Court premises its preemption ruling on what it terms the "substantial changes" wrought by Congress in § 5(b), ante at 520, notably, the rewording of the provision to preempt any "requirement or prohibition" (as opposed merely to any "statement") "imposed under State law." As an initial matter, I do not disagree with the Court that the phrase "State law," in an appropriate case, can encompass the common law as well as positive enactments such as statutes and regulations. See ante at 522-523. I do disagree, however, with the Court’s conclusion that "State law" as used in § 5(b) represents such an all-inclusive reference. Congress’ intention in selecting that phrase cannot be understood without considering the narrow range of actions -- any "requirement or prohibition" -- that Congress specifically described in § 5(b) as "imposed under" state law. See United States v. Morton, 467 U.S. 822, 828 (1984) ("We do not . . . construe statutory phrases in isolation; we read statutes as a whole. Thus, the words [in question] must be read in light of the immediately following phrase"); Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) ("The maxim noscitur a sociis, that a word is known by the company it keeps, while not an inescapable rule, is often wisely applied where a word is capable of many meanings, in order to avoid the giving of unintended breadth to the Acts of Congress"); see also Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. 117, 138-139 (1991) (STEVENS, J., dissenting) (declining to read the phrase "all other law, including State and municipal law" broadly).

Although the Court flatly states that the phrase "no requirement or prohibition" "sweeps broadly" and "easily encompass[es] obligations that take the form of common law rules," ante at 521, those words are in reality far from unambiguous, and cannot be said clearly to evidence a congressional mandate to preempt state common law damages actions. The dictionary definitions of these terms suggest, if anything, specific actions mandated or disallowed by a formal governing authority. See, e.g., Webster’s Third New International Dictionary 1929 (1981) (defining "require" as "to ask for authoritatively or imperatively: claim by right and authority" and "to demand as necessary or essential (as on general principles or in order to comply with or satisfy some regulation)"); Black’s Law Dictionary 1212 (6th ed.1990) (defining "prohibition" as an "[a]ct or law prohibiting something"; an "interdiction").

More important, the question whether common law damages actions exert a regulatory effect on manufacturers analogous to that of positive enactments -- an assumption crucial to the Court’s conclusion that the phrase "requirement or prohibition" encompasses common law actions -- is significantly more complicated than the Court’s brief quotation from San Diego Building Trades Council v. Garmon, 359 U.S. 236, 247 (1959), see ante at 521, would suggest.

The effect of tort law on a manufacturer’s behavior is necessarily indirect. Although an award of damages, by its very nature, attaches additional consequences to the manufacturer’s continued unlawful conduct, no particular course of action (e.g., the adoption of a new warning label) is required. A manufacturer found liable on, for example, a failure-to-warn claim may respond in a number of ways. It may decide to accept damages awards as a cost of doing business, and not alter its behavior in any way. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185-186 (1988) (corporation "may choose to disregard [state] safety regulations and simply pay an additional" damages award if an employee is injured as a result of a safety violation). Or, by contrast, it may choose to avoid future awards by dispensing warnings through a variety of alternative mechanisms, such as package inserts, public service advertisements, or general educational programs. The level of choice that a defendant retains in shaping its own behavior distinguishes the indirect regulatory effect of the common law from positive enactments such as statutes and administrative regulations. See Dewey v. R. J. Reynolds Tobacco Co., 121 N.J. 69, 90, 577 A.2d 1239, 1249 (1990); Garner, Cigarette Dependency and Civil Liability: A Modest Proposal, 53 S.Cal.L.Rev. 1423, 1454 (1980). Moreover, tort law has an entirely separate function -- compensating victims -- that sets it apart from direct forms of regulation. See Ferebee v. Chevron Chemical Co., 237 U.S.App.D.C. 164, 175, 736 F.2d 1529, 1540, cert. denied, 469 U.S. 1062 (1984).

Despite its earlier acknowledgement, consistent with the foregoing conception of damages actions, that

there is no general, inherent conflict between federal preemption of state warning requirements and the continued vitality of state common law damages actions,

ante at 518,{2} the Court apparently finds Garmon’s statement that "regulation can be as effectively exerted through an award of damages as through some form of preventive relief," 359 U.S. at 247, sufficient authority to warrant extinguishing the common law actions at issue in this case. See ante at 521. I am not persuaded. Not only has the Court previously distinguished Garmon,{3} but it has declined on several recent occasions to find the regulatory effects of state tort law direct or substantial enough to warrant preemption.

In Goodyear Atomic Corp. v. Miller, for example, the Court distinguished, for purposes of preemption analysis, "direct state regulation" of safety matters from "the incidental regulatory effects" of damages awarded pursuant to a state workers’ compensation law. 486 U.S. at 185. Relying in part on its earlier decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984),{4} the Court stated that

Congress may reasonably determine that incidental regulatory pressure is acceptable, whereas direct regulatory authority is not.

486 U.S. at 186. Even more recently, the Court declined in English v. General Electric Co., 496 U.S. at 86, to find state common law damages claims for emotional distress preempted by federal nuclear energy law. The Court concluded that, although awards to former employees for emotional distress would attach "additional consequences" to retaliatory employer conduct, and could lead employers to alter the underlying conditions about which employees were complaining, ibid., such an effect would be "neither direct nor substantial enough" to warrant preemption. Id. at 85.

In light of the recognized distinction in this Court’s jurisprudence between direct state regulation and the indirect regulatory effects of common law damages actions, it cannot be said that damages claims are clearly or unambiguously "requirements" or "prohibitions" imposed under state law. The plain language of the 1969 Act’s modified preemption provision simply cannot bear the broad interpretation the Court would impart to it.


Not only does the text of the revised § 5(b) fail clearly or manifestly to require preemption of state common law damages actions, but there is no suggestion in the legislative history that Congress intended to expand the scope of the preemption provision when it amended the statute in 1969. The Court acknowledges the evidence that Congress itself perceived the changes in § 5(b) to be a mere "clarifi[cation]" of the existing narrow preemption provision, ante at 520 (quoting S.Rep. No. 91-566, p. 12 (1969) (hereinafter S.Rep.)), but it dismisses these statements of legislative intent as the "`views of a subsequent Congress.’" Id. at 520, quoting United States v. Price, 361 U.S. 304, 313 (1960). The Court is wrong not only as a factual matter -- for the statements of the Congress that amended § 5(b) are contemporaneous, not "subsequent," to enactment of the revised preemption provision -- but as a legal matter, as well. This Court accords "great weight" to an amending Congress’ interpretation of the underlying statute. See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 & n. 8 (1969).

Viewing the revisions to § 5(b) as generally nonsubstantive in nature makes sense. By replacing the word "statement" with the slightly broader term, "requirement," and adding the word "prohibition" to ensure that a State could not do through negative mandate (e.g., banning all cigarette advertising) that which it already was forbidden to do through positive mandate (e.g., mandating particular cautionary statements), Congress sought to "clarif[y]" the existing precautions against confusing and nonuniform state laws and regulations. S.Rep. p. 12.{5}

Just as it acknowledges the evidence that Congress’ changes in the preemption provision were nonsubstantive, the Court admits that

portions of the legislative history of the 1969 Act suggest that Congress was primarily concerned with positive enactments by States and localities.

Ante at 521. Indeed, the relevant Senate report explains that the revised preemption provision is

intended to include not only action by State statute, but by all other administrative actions or local ordinances or regulations by any political subdivisions of any State,

a list remarkable for the absence of any reference to common law damages actions. S.Rep. p. 12. Compare, e.g., 29 U.S.C. §§ 1144(a) and (c)(1) (ERISA statute defines "any and all State laws" as used in preemption provision to mean "all laws, decisions, rules, regulations, or other State action having the effect of law") (emphasis added). The Court dismisses this statement with the simple observation that "the language of the Act plainly reaches beyond such [positive] enactments." Ante at 521. Yet, as discussed above, the words of § 5(b) ("requirement or prohibition") do not so "plainly" extend to common law damages actions, and the Court errs in placing so much weight on this fragile textual hook.

The Court further acknowledges that, at the same time that Congress amended the preemption provision of § 5(b), it made no effort to alter the statement of purpose contained in § 2 of the 1965 Act. Ante at 521, n.19. Although the Court relegates this fact to a footnote, the continued vitality of § 2 is significant, particularly in light of the Court’s reliance on the same statement of purpose for its earlier conclusion that the 1965 Act does not preempt state common law damages actions. See ante at 519 (concluding that Congress’ expressed intent to avoid diverse, nonuniform, and confusing regulations "most naturally refers to positive enactments by [state legislatures and federal agencies], not to common law damages actions").

Finally, there is absolutely no suggestion in the legislative history that Congress intended to leave plaintiffs who were injured as a result of cigarette manufacturers’ unlawful conduct without any alternative remedies; yet that is the regrettable effect of the Court’s ruling today that many state common law damages claims are preempted. The Court in the past has hesitated to find preemption where federal law provides no comparable remedy. See Rabin, A Sociolegal History of the Tobacco Tort Litigation, 44 Stan.L.Rev. 853, 869 (1992) (noting the "rather strong tradition of federal deference to competing state interests in compensating injury victims"). Indeed, in Silkwood, the Court took note of "Congress’ failure to provide any federal remedy" for injured persons, and stated that it was

difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct.

464 U.S. at 251. See also id. at 263 (BLACKMUN, J., dissenting) ("[i]t is inconceivable that Congress intended to leave victims with no remedy at all").

Unlike other federal statutes where Congress has eased the bite of preemption by establishing "comprehensive" civil enforcement schemes, see, e.g., Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 144-145 (1990) (discussing § 502(a) of ERISA), the Cigarette Labeling and Advertising Act is barren of alternative remedies. The Act merely empowers the Federal Trade Commission to regulate unfair or deceptive advertising practices (15 U.S.C. § 1336), establishes minimal criminal penalties (misdemeanor and fine not to exceed $10,000) for violations of the Act’s provisions (§ 1338), and authorizes federal courts, upon the Government’s application, to enjoin violations of the Act (§ 1339). Unlike the Court, I am unwilling to believe that Congress, without any mention of state common law damages actions or of its intention dramatically to expand the scope of federal preemption, would have eliminated the only means of judicial recourse for those injured by cigarette manufacturers’ unlawful conduct.

Thus, not only does the plain language of the 1969 Act fail clearly to require preemption of petitioner’s state common law damages claims, but there is no suggestion in the legislative history that Congress intended to expand the scope of the preemption provision in the drastic manner that the Court attributes to it. Our obligation to infer preemption only where Congress’ intent is clear and manifest mandates the conclusion that state common law damages actions are not preempted by the 1969 Act.{6}


Stepping back from the specifics of the Court’s preemption analysis to view the result the Court ultimately reaches, I am further disturbed. Notwithstanding the Court’s ready acknowledgement that "`[t]he purpose of Congress is the ultimate touchstone’ of preemption analysis," ante at 516 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)), the Court proceeds to create a crazy quilt of preemption from among the common law claims implicated in this case, and, in so doing, reaches a result that Congress surely could not have intended.

The most obvious problem with the Court’s analysis is its frequent shift in the level of generality at which it examines the individual claims. For example, the Court states that fraudulent misrepresentation claims (at least those involving false statements of material fact in advertisements) are "not predicated on a duty `based on smoking and health,’ but rather on a more general obligation -- the duty not to deceive," and therefore are not preempted by § 5(b) of the 1969 Act. Ante at 528-528. Yet failure to warn claims -- which could just as easily be described as based on a "more general obligation" to inform consumers of known risks -- implicitly are found to be "based on smoking and health," and are declared preempted. See ante at 524. The plurality goes on to hold that express warranty claims are not preempted because the duty at issue is undertaken by the manufacturer, and is not "imposed under State law." Ante at 525. Yet, as the plurality itself must acknowledge, "the general duty not to breach warranties arises under state law," ibid. (emphasis added); absent the State’s decision to penalize such behavior through the creation of a common law damages action, no warranty claim would exist.

In short, I can perceive no principled basis for many of the Court’s asserted distinctions among the common law claims, and I cannot believe that Congress intended to create such a hodge-podge of allowed and disallowed claims when it amended the preemption provision in 1970. Although the plurality acknowledges that § 5(b) fails to "indicate that any familiar subdivision of common law claims is or is not preempted," ante at 523, it ignores the simplest and most obvious explanation for the statutory silence: that Congress never intended to displace state common law damages claims, much less to cull through them in the manner the Court does today. I can only speculate as to the difficulty lower courts will encounter in attempting to implement the Court’s decision.


By finding federal preemption of certain state common law damages claims, the Court today eliminates a critical component of the States’ traditional ability to protect the health and safety of their citizens. Yet such a radical readjustment of federal-state relations is warranted under this Court’s precedents only if there is clear evidence that Congress intended that result. Because I believe that neither version of the Federal Cigarette Labeling and Advertising Act evidences such a clear congressional intent to preempt state common law damages actions, I respectfully dissent from parts V and VI of the Court’s opinion.

1. The Court construes congressional inroads on state power narrowly in other contexts, as well. For example, the Court repeatedly has held that, in order to waive a State’s sovereign immunity from suit in federal court, Congress must make its intention "unmistakably clear in the language of the statute." Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985); Dellmuth v. Muth, 491 U.S. 223, 228 (1989).

2. Congress, in fact, has expressly allowed common law damages actions to survive while preempting other, more direct forms of state regulation. See, e.g., Comprehensive Smokeless Tobacco Health Education Act of 1986, § 7, 100 Stat. 34, 15 U.S.C. § 4401 et seq.; Occupational Safety and Health Act of 1970, 84 Stat. 1590, 29 U.S.C. § 651 et seq., as construed in Cade v. National Solid Wastes Mgmt. Assn., ante, p. 88.

3. The Court has explained that Garmon, in which a state common law damages award was found to be preempted by the National Labor Relations Act, involved a special "presumption of federal preemption" relating to the primary jurisdiction of the National Labor Relations Board. See Brown v. Hotel Employees, 468 U.S. 491, 502 (1984); English v. General Electric Co., 496 U.S. 72, 86-87, n. 8 (1990).

4. The Court in Silkwood declined to find state punitive damages awards preempted by federal nuclear safety laws, explaining:

It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept.

464 U.S. at 256. Although the Court has noted that the decision in Silkwood was based in "substantial part" on affirmative evidence in the legislative history suggesting that Congress did not intend to include common law damages remedies within the preempted field, see English, 496 U.S. at 86, Silkwood’s discussion of the regulatory effects of the common law is instructive, and has been relied on in subsequent cases. See, e.g., Goodyear, 486 U.S. at 186.

5. In the one reported case construing the scope of preemption under the 1965 Act, Banzhaf v. FCC -- a case of which Congress was aware, see S.Rep. p. 7 -- the Court of Appeals for the District of Columbia Circuit used the term "affirmative requirements" to describe § 5(b)’s ban on "statement[s]." 132 U.S.App.D.C. 14, 22, 405 F.2d 1082, 1090 (1968), cert. denied sub nom. Tobacco Institute, Inc. v. FCC, 396 U.S. 842 (1969). It is but a small step from "affirmative requirement" to the converse, "negative requirement" ("prohibition"), and from there to the single explanatory phrase "requirement or prohibition."

6. Every Court of Appeals to consider the question, including the Third Circuit in an earlier opinion in this case, similarly has concluded that state common law damages claims are not expressly preempted under the 1969 Act. See, e.g., Cipollone v. Liggett Group, Inc., 789 F.2d 181, 185-186 (CA3 1986), cert. denied, 479 U.S. 1043 (1987); Pennington v. Vistron Corp., 876 F.2d 414, 418 (CA5 1989); Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230, 234 (CA6 1988); Palmer v. Liggett Group, Inc., 825 F.2d 620, 625 (CA1 1987). See also Dewey v. R.J. Reynolds Tobacco Co., 121 N.J. 69, 85, 577 A.2d 1239, 1247 (1990); Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655, 658 (Minn.1989).


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Chicago: Blackmun, "Blackmun, J., Concurring," Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) in 505 U.S. 504 505 U.S. 532–505 U.S. 544. Original Sources, accessed January 27, 2020,

MLA: Blackmun. "Blackmun, J., Concurring." Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), in 505 U.S. 504, pp. 505 U.S. 532–505 U.S. 544. Original Sources. 27 Jan. 2020.

Harvard: Blackmun, 'Blackmun, J., Concurring' in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992). cited in 1992, 505 U.S. 504, pp.505 U.S. 532–505 U.S. 544. Original Sources, retrieved 27 January 2020, from