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• Smoke Rings / How to fight big tobacco without ever talking about the health risks of smoking. 

Federal pre-emption law stomps around in big boots. Whereas the states-rights "revolution" once celebrated the ingenuity of the various states when it came to working out complex legal problems, federal pre-emption doctrine strives for "national regulatory uniformity" and the consistency of clear federal laws. Thus, if Congress wants to, it may pre-empt or block state lawsuits in areas into which it plants its federal flag. The Roberts Court has been feeling all kinds of love for federal pre-emption lately, which is why Philip Morris is feeling giddy at the prospect of using it to deliver a "knockout blow" . . .

The facts don't look great for the smokers. Altria, Philip Morris' parent company, points to a 1965 statute, the Federal Cigarette Labeling and Advertising Act, which explicitly says that "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." In other words, states can't go after cigarette companies for misleading ads connecting smoking and health. You can always mouth the word cancer, but if you say it aloud, federal pre-emption kicks in, and your lawsuit evaporates. For their part, the smokers contend that this case has nothing to do with advertising pertaining to "smoking and health." They just want to sue big tobacco for being big fat liars.

Former Solicitor General Ted Olson, representing Altria, points out that the Maine lawsuit is completely obsessed with "smoking and health" and is an obvious candidate for federal pre-emption. . . .

Everyone gets gotcha-ed at least once this morning. Justice John Paul Stevens nabs Olson for citing an Illinois case in which it turns out there was no federal pre-emption. The chief justice triumphantly gets Frederick to admit he misspoke when asserting that the smokers hadn't sought injunctive relief in this case. Then Olson has to explain in his rebuttal that he hadn't exactly abandoned the implied pre-emption argument; he just had better things to do. And when all the smoke clears, it looks to be another good day for big tobacco and another bad day for the folks harmed by it. Big tobacco blames the FTC for its deceptive claims. The FTC blames big tobacco for its deceptive claims. And the Marlboro Man tips his hat and rides off into the sunset.

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