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Aug 16 2006 Motion (06M20) of petitioner for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record filed. Aug 16 2006 Petition for a writ of certiorari filed. (Response due November 1, 2006) Aug 23 2006 MOTION (06M20) DISTRIBUTED for Conference of September 25, 2006.
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In an effort to address the problem of tobacco use by minors, the Maine legislature passed the Tobacco Delivery Law, which imposes requirements on air and motor carriers that transport tobacco products. One provision of the law requires tobacco retailers to only use carriers that verify the age of each tobacco purchaser, and another provision requires that carriers ensure that no tobacco is shipped to unlicensed retailers. The New Hampshire Motor Transport Association sued, arguing that the state law was preempted by a federal law, the Federal Aviation Administration Authorization Act of 1994 (FAAAA). The preemption provision of the FAAAA prohibits state from enacting laws "related to" the prices, routes, or services of air and motor carriers. The Association argued that the Tobacco Delivery Law placed such a burden on the delivery procedures of carriers that significantly affected their prices and services. The state countered that the FAAAA was only meant to preempt traditional economic regulation by states, and therefore laws enacted pursuant to the state's police power - the power of a state to regulate for the health, safety, and welfare of its citizens - were permissible. The U.S. District Court ruled that the law was preempted by the FAAAA.
The U.S. Court of Appeals for the First Circuit affirmed the lower court. The First Circuit held that a police power exception to the general rule of preemption would be far too broad and was not intended by Congress. Maine could validly ban all unlicensed tobacco products within its borders, but the FAAAA prohibited the state from implementing this goal by imposing requirements on carriers that significantly alter their delivery procedures.
Question
Does the Federal Aviation Administration Authorization Act of 1994 preempt a state law that uses the state's police power to require that air and motor carriers take steps to ensure that tobacco is not sold to minors?
CERTIORARI -- SUMMARY DISPOSITIONS 03-1427 EUROPEAN COMMUNITY, ET AL. V. RJR NABISCO, INC., ET AL. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of Pasquantino v. United States, 544 U.S. ____ (2005). [This graph only]
In The Attorney General of Canada v. R.J. Reynolds Tobacco Holdings, et al., No. 01-1317, Canada seeks $2 billion in lost taxes and law enforcement costs, and is suing under the Racketeer Influenced and Corrupt Organizations Act, which allows private parties to recover triple damages from criminal enterprises. The case is one of many the Supreme Court is scheduled to consider at its private conferences on May 9 and May 16 for possible review next term. . .
The District Court dismissed Canada's claim, writing that it represented "precisely the type of meddling in foreign affairs that the revenue rule forbids." . .
Judge Michael Kaplan, sitting by designation from the Western District of New York, dissented. He called the tax-gathering implications for Canada "incidental" to satisfying the RICO claim.
In briefs arguing that the Court should not take the case, the tobacco company contends that Congress never meant RICO to trump the revenue rule. Canada's theory "would allow any country, whether friend or foe, to avoid the trouble of negotiating a reciprocal tax-collection treaty with our government simply by invoking RICO in American courts," writes RJR lawyer Jeffrey Sutton, a partner at Jones, Day, Reavis & Pogue in Columbus, Ohio, who has been nominated by the President George W. Bush for a spot on the 6th Circuit.
Citing the need to combat "transnational organized crime and international terrorism," Canada has petitioned the U.S. Supreme Court to revive the federal government's moribund $1-billion civil action against the U.S.-based R.J. Reynolds tobacco empire for alleged cigarette smuggling.
Canada's U.S. attorneys filed a petition in Washington this week asking the high court to hear an appeal of a U.S. federal appeals court decision last October that quashed the unprecedented Canadian suit for violating a centuries-old "revenue rule" that bars U.S. courts from interpreting or enforcing the tax laws of foreign nations.
The petition is a last-ditch bid to resuscitate what has now become the most expensive lawsuit ever launched by the federal government. . .
"We had what we believe to be a correct view of the law and that's why we are taking it to the United States Supreme Court," he said. "We are no less resolved and we are no less committed to our belief in how the revenue rule does not apply to our lawsuit in the United States."
He declined to comment on what action, if any, the federal government would take against the tobacco industry if the top court declines to hear the case. The court hears only a tiny percentage of the cases it receives.
Philip Morris Cos. and other cigarette makers won the final round in lawsuits by Guatemala, Nicaragua and Ukraine, as the U.S. Supreme Court turned aside an appeal by the three nations. . .
``We look forward to the day when all of these foreign cases are dismissed,'' William S. Ohlemeyer, Philip Morris' associate general counsel, said in statement.
Shares of New York-based Philip Morris rose 16 cents to $50.03 in midday trading. R.J. Reynolds Tobacco Holdings Inc. fell 11 cents to $58.50.
Philip Morris Cos. and other cigarette makers won the final round in lawsuits by Guatemala, Nicaragua and Ukraine, as the U.S. Supreme Court turned aside an appeal by the three nations.
The suits sought to recoup the costs of treating millions of sick smokers under the national health care programs in those countries. A federal appeals court in Washington threw out the complaints in May.
U.S. judges have uniformly rejected tobacco lawsuits by foreign governments, generally concluding that any losses suffered by public treasuries are too tangental to the alleged wrongdoing to be addressed by a court. . . The case is Guatemala v. Tobacco Institute, 01-338.
Joe Camel and the Marlboro man will get a higher profile in Marshalltown, where city officials restricted tobacco advertising three years ago.
The City Council will drop a controversial ordinance that banned tobacco advertisements using color or logos outside convenience stores. They feared it wouldn't stand a legal challenge in the wake of a U.S. Supreme Court ruling.
The court recently struck down a similar regulation in Massachusetts, saying it violated free-speech rights.
A group of middle-school students pushed the City Council to pass the ordinance in September 1998. The students said the idea was aimed at protecting children who pass tobacco advertisements while walking to school.
"They must have worked on it six months out of the school year," Councilman Tom Curley said. "Now, with one fell swoop of the Supreme Court, it's gone."
The ordinance was modeled after a 13-year-old Des Moines regulation that restricts tobacco and alcohol advertising within 400 feet of schools and churches.
TERENCE SMITH: Okay. Thomas Merrill, what caught your eye, what were the headlines cases for you?
THOMAS MERRILL: One case I would single out is the tobacco advertising case . .
So the only entity with legal authority to regulate tobacco advertising, cigarette advertising at least is the Congress and Congress appears to be not in a mood to legislate on this particular subject. The effect of the court's decision is going to be to push activity more and more toward litigation, toward lawsuits against tobacco companies and toward settlements between attorneys general and the Justice Department, tobacco companies. We' going to be dealing with the tobacco problem through courts and lawyers settling cases instead of dealing with it through state and local and national legislatures, which is where I think in our democracy, we really ought to be tackling the subject. I don't think the court is necessarily intended to make tobacco the most deregulated industry in the country but it seems to be having that effect.
Should a company have as much right to free speech about its products as people have to air their political views?
The courts' longtime answer has been no. Even though the First Amendment bars laws "abridging the freedom of speech," the courts have deemed advertising to be an exception. That distinction has allowed government at all levels to impose consumer-protection rules on advertisers, such as the ubiquitous health warnings on cigarette ads.
But a growing number of cases are challenging that concept. The latest example is last week's Supreme Court ruling striking down a tough Massachusetts law restricting tobacco advertising, including a ban on ads within 1,000 feet of schools and children's facilities. . .
Free-speech advocates see great significance in the decision. "Future advertising restrictions can be expected to receive similar skeptical treatment," says David Remes, a First Amendment lawyer who worked on the case on the industry's side.
No one expects advertising to achieve the same constitutional protection that individuals have to free speech. But courts around the nation are narrowing the gap. . .
"To the extent commercial speech becomes assimilated into traditional political speech, it could become a potent engine for government deregulation," says Burt Neuborne, a New York University law professor.
The court reiterated its view of the potentially corrupting influence of money in politics, upholding a federal limit on the amount parties may spend in coordination with their own candidates. To exempt parties from the limits, as the Colorado Republican Party requested, would be to invite circumvention of other limits, Justice Souter said in Federal Election Commission v. Colorado Republican Federal Campaign Committee, No. 00-191. Justices Thomas, Kennedy and Scalia and Chief Justice Rehnquist dissented.
The court upheld the right of the tobacco industry to advertise its products to adult consumers, striking down a far-reaching advertising ban in Massachusetts. While taking different approaches to the case, all nine justices basically agreed in Lorillard Tobacco v. Reilly, No. 00-596, that the ban violated the tobacco advertisers' First Amendment rights. The court also found the state restrictions on advertising for cigarettes, as opposed to cigars and smokeless tobacco, to be pre-empted by federal law. The pre-emption analysis was 5 to 4. Justice O'Connor's opinion was joined by Chief Justice Rehnquist and by Justices Scalia, Thomas and Kennedy. . .
The court upheld the right of the tobacco industry to advertise its products to adult consumers, striking down a far-reaching advertising ban in Massachusetts. While taking different approaches to the case, all nine justices basically agreed in Lorillard Tobacco v. Reilly, No. 00-596, that the ban violated the tobacco advertisers' First Amendment rights. The court also found the state restrictions on advertising for cigarettes, as opposed to cigars and smokeless tobacco, to be pre-empted by federal law. The pre-emption analysis was 5 to 4. Justice O'Connor's opinion was joined by Chief Justice Rehnquist and by Justices Scalia, Thomas and Kennedy.
"We're disappointed. But it was not totally unexpected," said a Brown & Williamson spokesman.
Lawyers for cigarette makers and their critics said the Supreme Court's decision didn't provide any clear indication of the prospects for other tobacco-company court losses that are now before appeals courts. In some of those cases, cigarette makers argue that state-court judges didn't properly instruct jurors on the law as interpreted in a 1992 Supreme Court ruling.
In 1992, the Supreme Court said a 1969 law requiring health warnings on cigarettes bars plaintiffs from making legal claims that tobacco companies should have given more extensive information about the dangers of smoking. But Brown & Williamson's appeals argument centered on the relatively narrow matter of whether testimony from one expert witness, who said more extensive warnings should have been put on inserts in cigarette packs, was proper.
In a major setback to anti-tobacco activists trying to protect young people from the influence of tobacco advertising, the US Supreme Court ruled on Thursday that such regulations are barred by the Federal Cigarette Labeling and Advertising Act.
The act was passed in 1969 as part of a congressional requirement that health warnings be posted on all cigarette packages.
In striking down regulations in Massachusetts aimed at barring tobacco advertisements within 1,000 feet of any school or playground, the nation's highest court in a highly splintered decision offered an array of reasons for its ruling. In addition to the federal law and preemption, the court found that part of the regulations violated the First Amendment rights of the tobacco companies. . .
To antitobacco activists, the decision marks a major setback in efforts to counteract the influence on young people of multimillion-dollar advertising campaigns that seek to portray smoking as glamorous, sophisticated, and healthy. Richard Daynard of the Tobacco Control Resource Center at Northestern University says that, combined with the high court's ruling last year throwing out Food and Drug Administration regulation of tobacco, the justices have now thrown out both federal and state efforts to protect young people from smoking.
"This case demonstrates dramatically that the ideological block that runs this court comes down squarely in favor of the predatory tobacco merchants" rather than the nation's youth, Mr. Daynard says.
The Supreme Court unanimously rejected stringent Massachusetts advertising restrictions aimed at keeping storefront cigarette signs out of view of children.
The justices said the state can require shopkeepers to keep tobacco products out of youngsters' reach.
Handing a victory to the tobacco industry, the justices said the ad curbs were pre-empted by a federal law that governs tobacco labeling and advertising.
The justices also said that some of the state's rules, including barring cigar and smokeless-tobacco signs near schools or playgrounds, violated First Amendment free-speech protections. . .
The high court's ruling focuses narrowly on the language of the Massachusetts ad ban, but the justices' reasoning would extend to any other state contemplating similar restrictions. However, Justice O'Connor added, "to the extent that federal law and the First Amendment do not prohibit state action, states and localities remain free to combat the problems of underage tobacco use by appropriate means." (Lorillard Tobacco v. Reilly, and Altadis U.S.A. v. Reilly)
[T]o the extent that federal law and the First Amendment do not prohibit state action, states and localities remain free to combat the problems of underage tobacco use by appropriate means.Supreme Court Justice Sandra Day O'Connor. <I>In a Victory for Big Tobacco, High Court Rejects Massachusetts Restrictions on Ads</I>
Chief Justice Rehnquist announced that the court would meet again on Thursday and would conclude its term then by announcing its remaining decisions. Four cases remain: another immigration case, a property rights case, a challenge to restrictions on tobacco advertising, and a case on a habeas corpus issue. . .
The court ruled 6 to 3 that a federal law that requires mushroom growers to pay assessments for a federal advertising program violated the growers' First Amendment rights against compelled speech. . .
In a dissenting opinion, Justice Breyer said this analysis created an incentive to increase government regulation. He said it called into question the constitutionality of a government program to require tobacco companies to help pay for advertising that warned of the dangers of smoking. Justices Ginsburg and O'Connor also dissented in United States v. United Foods, No. 00-276, which upheld a ruling by the United States Court of Appeals for the Sixth Circuit, in Cincinnati. [This graph only]