The following analysis is by Rachel Lee, a student in the Stanford Law School Supreme Court Litigation Clinic.

On February 20, 2008, the Court unanimously affirmed the First Circuit decision in Rowe v. New Hampshire Motor Transport Association.  Justice Breyer authored the opinion, with concurrences filed by Justice Ginsburg and Justice Scalia.

Despite the public health implications of allowing delivery of tobacco products from remote sellers to underage buyers, the Court ruled that both challenged provisions of the Maine tobacco delivery law were pre-empted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  The Court adopted the Morales interpretation of similar pre-emption language from a related statute and proceeded to determine that the Maine law was pre-empted under that analytical framework.  The first provision of Maine’s law, requiring licensed tobacco retailers to select carriers who would verify the age and identity of delivery recipients, had an indirect “connection with” carrier service.  The other provision, attributing knowledge of an unlicensed tobacco shipment to carriers, also directly regulated an aspect of carrier services-in effect requiring carriers to examine each package and check it against a state list of unlicensed retailers.  Whether or not they imposed large costs on the carriers, these provisions had a “significant impact” on the deregulation goals of the FAAAA, because they “could easily lead to a patchwork of state service-determining laws, rules, and regulations.”

The Court systematically rejected the state’s arguments against pre-emption.  Looking to the text and legislative history of the FAAAA, the Court held that the FAAAA did not contain any implied “public health” exemption from pre-emption.  The Court did recognize that some state public health regulations-such as a prohibition on smoking in public places by all citizens, including truck drivers- would avoid pre-emption, but it held that the Maine law was untenable because it was aimed directly at carrier services rather than regulating the general public.  Although Maine had asserted that it must be permitted to regulate the manner of tobacco delivery because it has the authority to ban tobacco shipments entirely, the Court did not accept this conclusion (even assuming the premise that the state could ban shipments entirely) because it would effectively create a public-health exemption.  Finally, the Court argued that the state has other alternative means to prevent tobacco deliveries to minors, including banning all non-face-to-face sales of tobacco, enacting other unspecified laws of general applicability, and urging Congress to pass federal legislation on the subject.

Justice Ginsburg wrote a concurring opinion to draw congressional attention to the regulatory gap resulting from the Court’s opinion, in which the states cannot regulate tobacco delivery to youth because of pre-emption, yet Congress has not addressed the public health problem with any federal action.

Justice Scalia wrote a concurring opinion in which he noted that he joined all parts of Justice Breyer’s opinion except those that rely on congressional committee reports to show legislative intent.

This decision by the Supreme Court could have significant implications for states’ efforts to prohibit tobacco deliveries to minors.  Maine is not the only state that has sought to regulate tobacco deliveries, because a direct ban on sales to minors is difficult to enforce against Internet sellers located outside the state.  In fact, many commercial shipping companies agreed to stop cigarette deliveries from Internet sellers to consumers nationwide as part of a 2005 settlement reached with the New York Attorney General.  However, the Rowe decision could call into question the validity of the underlying New York law on cigarette deliveries.

Posted in Rowe v. NH Motor Transport, Uncategorized