The United States should be proud of the fact that, through the FCLAA
and the FSPTCA, it has essentially eliminated all child-directed tobacco advertisements.
The First Circuit held that the plaintiffs' claims were neither expressly nor implicitly preempted by the FCLAA, nor implicitly preempted by Federal Trade Commission (FTC) oversight of cigarette advertising, nor barred by exemptions in the MUTPA.
The district court concluded that the plaintiffs' claims were expressly preempted by the FCLAA because they were grounded in the company's advertising or promotion.
Liggett Group, Inc., which held that the FCLAA expressly preempted only some actions under state law.
Nevertheless, we resist that characterization as to the FCLAA. As we said, no Justice on the Court characterized the FCLAA in such glowing terms; nor do we.
504, 524-25 (1992) (Stevens, J., plurality opinion) (finding that, notwithstanding the traditional presumption that federal statutes do not preempt state tort law, some tort remedies are preempted by the FCLAA).
Plaintiff-blaming defenses were greatly strengthened in 1965 by passage of the Federal Cigarette Labeling and Advertising Act (FCLAA), the federal law requiring warning labels on all cigarette packaging and advertising.(3) Jurors tended to blame plaintiffs who had continued to smoke despite health warnings about the link between smoking and disease, instead of identifying the industry as the cause of tobacco-induced illnesses.(4)
In Cipollone, the Supreme Court specified the state law tort claims that were preempted by the FCLAA. In particular, the Court held that the act, as amended by the Public Health Cigarette Smoking Act of 1969, preempted state law damage claims based on "failure to warn and the neutralization of the federally mandated warnings to the extent that those claims rel[ied] on omissions or inclusions in [the manufacturers'] advertising or promotions."(12) However, the Court also held that the amended act did not preempt claims based on strict liability, express warranty, intentional fraud and misrepresentation, or conspiracy.(13)