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562/07 ענ     15/12/2008




562/07 altria group, inc v. good et al




1 (slip opinion) oc
tober term, 2008
syllabus
note: where it is feasible, a syllabus (headnote) will be released, as isbeing done in c
onnec
tion with this c
ase, at the time the opinion is issued.the syllabus c
onstitutes no part of the opinion of the c
ourt but has beenprepared by the reporter of dec
isions for the c
onvenienc
e of the reader. see united states v. detroit timber & lumber c
o., 200 u. s. 321, 337.
supreme c
ourt of the united states
syllabus
altria group
, inc

., et al. v. good et al
.
c
ertiorari to the united states c
ourt of appeals for the first c
irc
uit
no. 07–562. argued oc
tober 6, 2008—dec
ided dec
ember 15, 2008
respondents, smokers of petitioners’ “light” c
igarettes, filed suit, alleging that petitioners violated the maine unfair trade prac
tic
es ac
t(mutpa) by fraudulently advertising that their “light” c
igarettes delivered less tar and nic
otine than regular brands. the distric
t c
ourt granted summary judgment for petitioners, finding the state-lawc
laim pre-empted by the federal c
igarette labeling and advertising ac
t (labeling ac
t). the first c
irc
uit reversed, holding that the labeling ac
t neither expressly nor impliedly pre-empts respondents’ fraud c
laim.
held: neither the labeling ac
t’s pre-emption provision nor the federaltrade c
ommission’s ac
tions in this field pre-empt respondents’ statelaw fraud c
laim. pp. 5–20.

(a) c
ongress may indic
ate pre-emptive intent through a statute’sexpress language or through its struc
ture and purpose. see jones v. rath pac
king c
o., 430 u. s. 519, 525. when the text of an expresspre-emption c
lause is susc
eptible of more than one plausible reading,c
ourts ordinarily “ac
c
ept the reading that disfavors pre-emption.” bates v. dow agrosc
ienc
es llc
, 544 u. s. 431, 449. the labelingac
t’s stated purposes are to inform the public
of the health risks ofsmoking while protec
ting c
ommerc
e and the ec
onomy from the ill effec
ts of nonuniform requirements to the extent c
onsistent with the first goal. although fidelity to these purposes does not demand thepre-emption of state fraud rules, the princ

ipal question here is whether that result is nevertheless required by 15 u. s. c
. §1334(b), whic
h provides that “[n]o requirement or prohibition based on smoking and health shall be imposed under state law with respec
t to theadvertising or promotion of any c
igarettes the pac
kages of whic
h are labeled in c
onformity with the provisions of this c
hapter.” pp. 5–9.
2 altria group
, inc

. v. good

syllabus

(b) respondents’ c
laim is not expressly pre-empted by §1334(b). as determined in c
ipollone v. liggett group, inc

., 505 u. s. 504, and lorillard tobac
c
o c
o. v. reilly, 533 u. s. 525, the phrase “based onsmoking and health” modifies the state-law rule at issue rather than a partic
ular applic
ation of that rule. the c
ipollone plurality c
onc
luded that “the phrase ‘based on smoking and health’ fairly but narrowly c
onstrued” did not pre-empt the c
ipollone plaintiff’s c
ommonlaw c
laim that c
igarette manufac
turers had fraudulently misrepresented and c
onc
ealed a material fac
t, bec
ause the c
laim alleged a violation of a duty not to dec
eive—a duty that is not “based on” smokingand health. 505 u. s., at 528–529. respondents here also allege a violation of the duty not to dec
eive as c
odified in the mutpa, whic
h, like the c
ommon-law duty in c
ipollone, has nothing to do with smoking and health. respondents’ c
laim is not analogous to the “warningneutralization” c
laim found to be pre-empted in c
ipollone. reilly is c
onsistent with c
ipollone’s analysis. this c
ourt disagrees with petitioners’ alternative argument that the express pre-emption framework of c
ipollone and reilly should be rejec
ted. americ
an airlines, inc

. v. wolens, 513 u. s. 219, and riegel v. medtronic
, inc

., 552 u. s. ___, are distinguished. pp. 9–16.

(c
) various federal trade c
ommission dec
isions with respec
t tostatements of tar and nic
otine c
ontent do not impliedly pre-emptstate dec
eptive prac
tic
es rules like the mutpa. pp. 17–20.

501 f. 3d 29, affirmed and remanded.
stevens
, j., delivered the opinion of the c
ourt, in whic
h kennedy
, souter
, ginsburg
, and breyer
, jj., joined. thomas
, j., filed a dissenting opinion, in whic
h roberts
, c
. j., and scalia
and alito
, jj., joined. _________________ _________________ 1 c
ite as: 555 u. s. ____ (2008)
opinion of the c
ourt
notic
e: this opinion is subjec
t to formal revision before public
ation in thepreliminary print of the united states reports. readers are requested tonotify the reporter of dec
isions, supreme c
ourt of the united states, washington, d. c
. 20543, of any typographic
al or other formal errors, in orderthat c
orrec
tions may be made before the preliminary print goes to press.

supreme c
ourt of the united states
no. 07–562
altria group
, inc

., et al., petitioners v.stephanie good et al
.
on writ of c
ertiorari to the united states c
ourt of appeals for the first c
irc
uit
[dec
ember 15, 2008]
justic
e stevens
delivered the opinion of the c
ourt.
respondents, who have for over 15 years smoked “light” c
igarettes manufac
tured by petitioners, philip morrisusa, inc

., and its parent c
ompany, altria group
, inc

., c
laim that petitioners violated the maine unfair tradeprac
tic
es ac
t (mutpa). spec
ific
ally, they allege thatpetitioners’ advertising fraudulently c
onveyed the message that their “light” c
igarettes deliver less tar and nic
otine to c
onsumers than regular brands despite petitioners’ knowledge that the message was untrue. petitioners denythe c
harge, asserting that their advertisements werefac
tually ac
c
urate. the merits of the dispute are notbefore us bec
ause the distric
t c
ourt entered summaryjudgment in favor of petitioners on the ground that respondents’ state-law c
laim is pre-empted by the federal c
igarette labeling and advertising ac
t, as amended (labeling ac
t). the c
ourt of appeals reversed that judgment, and we granted c
ertiorari to review its holding that the labeling ac
t neither expressly nor impliedly preempts respondents’ fraud c
laim. we affirm. 2 altria group
, inc

. v. good
opinion of the c
ourt
i respondents are maine residents and longtime smokers of marlboro lights and c
ambridge lights c
igarettes,whic
h are manufac
tured by petitioners. invoking thediversity jurisdic
tion of the federal distric
t c
ourt, respondents filed a c
omplaint alleging that petitioners deliberately dec
eived them about the true and harmful nature of “light” c
igarettes in violation of the mutpa, me. rev.stat. ann., tit. 5, §207 (supp. 2008).1 respondents c
laim that petitioners fraudulently marketed their c
igarettes asbeing “light” and c
ontaining “‘[l]owered [t]ar and [n]ic
otine’” to c
onvey to c
onsumers that they deliver less tar and nic
otine and are therefore less harmful than regular c
igarettes. app. 28a–29a.respondents ac
knowledge that testing pursuant to thec
ambridge filter method2 indic
ates that tar and nic
otine yields of marlboro lights and c
ambridge lights are lowerthan those of regular c
igarettes. id., at 30a. respondentsallege, however, that petitioners have known at all relevant times that human smokers unc
onsc
iously engage inc

ompensatory behaviors not registered by c
ambridgefilter method testing that negate the effec
t of the tar- and
—————— 1the mutpa provides, as relevant, that “[u]nfair methods of c
ompetition and unfair or dec
eptive ac
ts or prac
tic
es in the c
onduc
t of anytrade or c
ommerc
e are dec
lared unlawful.” §207. in c
onstruing thatsec
tion, c
ourts are to “be guided by the interpretations given by the federal trade c
ommission and the federal c
ourts to sec
tion 45(a)(1)of the federal trade c
ommission ac
t (15 united states c
ode 45(a)(1)),as from time to time amended.” §207(1).2the c
ambridge filter method weighs and measures the tar andnic
otine c
ollec
ted by a smoking mac
hine that takes 35 milliliter puffs oftwo sec
onds’ duration every 60 sec
onds until the c
igarette is smoked toa spec
ified butt length. app. 294a, 668a. as disc
ussed below, the federal trade c
ommission (ftc
or c
ommission) signaled in 1966 thatthe c
ambridge filter method was an ac
c
eptable means of measuringthe tar and nic
otine c
ontent of c
igarettes, but it never required manufac
turers to publish test results in their advertisements. 3 c
ite as: 555 u. s. ____ (2008) opinion of the c
ourt
nic
otine-reduc
ing features of “light” c
igarettes. id., at 30a–31a. by c
overing filter ventilation holes with their lips or fingers, taking larger or more frequent puffs, andholding the smoke in their lungs for a longer period oftime, smokers of “light” c
igarettes unknowingly inhale asmuc
h tar and nic
otine as do smokers of regular c
igarettes. ibid. “light” c
igarettes are in fac
t more harmful bec
ause the inc

reased ventilation that results from their unique design features produc
es smoke that is more mutagenic
per milligram of tar than the smoke of regular c
igarettes. id., at 31a–32a. respondents c
laim that petitioners violated the mutpa by fraudulently c
onc
ealing that information and by affirmatively representing, through the useof “light” and “lowered tar and nic
otine” desc
riptors, thattheir c
igarettes would pose fewer health risks. id., at 32a, 33a.
petitioners moved for summary judgment on the ground that the labeling ac
t, 15 u. s. c
. §1334(b), expressly preempts respondents’ state-law c
ause of ac
tion. relying on our dec
isions in c
ipollone v. liggett group, inc

., 505 u. s. 504 (1992), and lorillard tobac
c
o c
o. v. reilly, 533 u. s. 525 (2001), the distric
t c
ourt c
onc
luded that respondents’ mutpa c
laim is pre-empted. the c
ourt rec
ast respondents’ c
laim as a failure-to-warn or warning neutralizationc
laim of the kind pre-empted in c
ipollone: the c
laim c
harges petitioners with “produc
[ing] a produc
t it knewc
ontained hidden risks . . . not apparent or known to the c
onsumer”—a c
laim that “runs to what [petitioners] ac
tually said about lights and what [respondents] c
laim they should have said.” 436 f. supp. 2d 132, 151 (me. 2006). and the differenc
e between what petitioners said andwhat respondents would have them say is “‘intertwinedwith the c
onc
ern about c
igarette smoking and health.’” id., at 153 (quoting reilly, 533 u. s., at 548). the distric
t c
ourt thus c
onc
luded that respondents’ c
laim rests on astate-law requirement based on smoking and health of 4 altria group
, inc

. v. good
opinion of the c
ourt
prec
isely the kind that §1334(b) pre-empts, and it grantedsummary judgment for petitioners.
respondents appealed, and the c
ourt of appeals reversed. the c
ourt of appeals first rejec
ted the distric
tc
ourt’s c
harac
terization of respondents’ c
laim as a warning neutralization c
laim akin to the pre-empted c
laim in c
ipollone. 501 f. 3d 29, 37, 40 (c
a1 2007). instead, the c
ourt c
onc
luded that respondents’ c
laim is in substanc
e afraud c
laim that alleges that petitioners falsely represented their c
igarettes as “light” or having “lowered tar and nic
otine” even though they deliver to smokers the same quantities of those c
omponents as do regular c
igarettes. id., at 36. “the fac
t that these alleged misrepresentations were unac
c
ompanied by additional statementsin the nature of a warning does not transform the c
laimed fraud into failure to warn” or warning neutralization. id., at 42–43. finding respondents’ c
laim indistinguishablefrom the non-pre-empted fraud c
laim at issue in c
ipollone, the c
ourt of appeals held that it is not expressly preempted. the c
ourt also rejec
ted petitioners’ argumentthat respondents’ c
laim is impliedly pre-empted bec
ausetheir suc
c
ess on that c
laim would stand as an obstac
le to the purported polic
y of the ftc
allowing the use of desc
riptive terms that c
onvey c
ambridge filter method test results. ac
c
ordingly, it reversed the judgment of the distric
t c
ourt.
in c
onc
luding that respondents’ c
laim is not expressly pre-empted, the c
ourt of appeals c
onsidered and rejec
ted the fifth c
irc
uit’s reasoning in a similar c
ase. 501 f. 3d, at 45. unlike the c
ourt below, the fifth c
irc
uit likened the plaintiffs’ c
hallenge to the use of “light” desc
riptors to c
ipollone’s warning neutralization c
laim and thus found it expressly pre-empted. brown v. brown & williamson tobac
c
o c
orp., 479 f. 3d 383, 392–393 (2007). we grantedthe petition for c
ertiorari to resolve this apparent c
onflic
t.552 u. s. ___ (2008). 5 c
ite as: 555 u. s. ____ (2008)
opinion of the c
ourt
ii artic
le vi, c
l. 2, of the c
onstitution provides that the laws of the united states “shall be the supreme law of theland; . . . any thing in the c
onstitution or laws of any state to the c
ontrary notwithstanding.” c
onsistent with that c
ommand, we have long rec
ognized that state laws that c
onflic
t with federal law are “without effec
t.” maryland v. louisiana, 451 u. s. 725, 746 (1981). our inquiry into the sc
ope of a statute’s pre-emptiveeffec
t is guided by the rule that “‘[t]he purpose of c
ongress is the ultimate touc
hstone’ in every pre-emption c
ase.” medtronic
, inc

. v. lohr, 518 u. s. 470, 485 (1996) (quoting retail c
lerks v. sc
hermerhorn, 375 u. s. 96, 103 (1963)). c
ongress may indic
ate pre-emptive intent through astatute’s express language or through its struc
ture and purpose. see jones v. rath pac
king c
o., 430 u. s. 519, 525 (1977). if a federal law c
ontains an express preemption c
lause, it does not immediately end the inquiry bec
ause the question of the substanc
e and sc
ope of c
ongress’ displac
ement of state law still remains. preemptive intent may also be inferred if the sc
ope of the statute indic
ates that c
ongress intended federal law tooc
c
upy the legislative field, or if there is an ac
tual c
onflic
t between state and federal law. freightliner c
orp. v. myric
k, 514 u. s. 280, 287 (1995). when addressing questions of express or implied preemption, we begin our analysis “with the assumption thatthe historic
polic
e powers of the states [are] not to be superseded by the federal ac
t unless that was the c
learand manifest purpose of c
ongress.” ric
e v. santa fe elevator c
orp., 331 u. s. 218, 230 (1947). that assumption applies with partic
ular forc
e when c
ongress has legislated in a field traditionally oc
c
upied by the states. lohr, 518 u. s., at 485; see also reilly, 533 u. s., at 541– 542 (“bec
ause ‘federal law is said to bar state ac
tion in [a] 6 altria group
, inc

. v. good
opinion of the c
ourt
fiel[d] of traditional state regulation,’ namely, advertising,we ‘wor[k] on the assumption that the historic
polic
epowers of the states [a]re not to be superseded by thefederal ac
t unless that [is] the c
lear and manifest purpose of c
ongress’ ” (c
itation omitted)). thus, when the text of a pre-emption c
lause is susc
eptible of more than one plausible reading, c
ourts ordinarily “ac
c
ept the reading thatdisfavors pre-emption.” bates v. dow agrosc
ienc
es llc
, 544 u. s. 431, 449 (2005).
c
ongress enac
ted the labeling ac
t in 19653 in response to the surgeon general’s determination that c
igarette smoking is harmful to health. the ac
t required that everypac
kage of c
igarettes sold in the united states c
ontain a c
onspic
uous warning, and it pre-empted state-law positiveenac
tments that added to the federally presc
ribed warning. 79 stat. 283. c
ongress amended the labeling ac
t afew years later by enac
ting the public
health c
igarette smoking ac
t of 1969.4 the amendments strengthened thelanguage of the presc
ribed warning, 84 stat. 88, and prohibited c
igarette advertising in “any medium of elec
tronic
c
ommunic
ation subjec
t to [fc
c
] jurisdic
tion,” id., at 89. they also broadened the labeling ac
t’s pre-emption provision. see c
ipollone, 505 u. s., at 520 (plurality opinion) (disc
ussing the differenc
e in sc
ope of the pre-emptionc
lauses of the 1965 and 1969 ac
ts). the labeling ac
t has sinc

e been amended further to require c
igarette manufac
turers to inc

lude four more explic
it warnings in their pac
kaging and advertisements on a rotating basis.5
the stated purpose of the labeling ac
t is “to establish a c
omprehensive federal program to deal
—————— 379 stat. 282. 4pub. l. 91–222, 84 stat. 87. though ac
tually enac
ted in 1970, c
ongress direc
ted that it be c
ited as a “1969 ac
t.” 5c
omprehensive smoking educ
ation ac
t, pub. l. 98–474, §4(a), 98stat. 2201, 15 u. s. c
. §1333(a). 7 c
ite as: 555 u. s. ____ (2008) opinion of the c
ourt
with c
igarette labeling and advertising with respec
t to any relationship between smoking and health, whereby—
“(1) the public
may be adequately informed that c
igarette smoking may be hazardous to health by inc

lusion of a warning to that effec
t on eac
h pac
kage ofc
igarettes; and
“(2) c
ommerc
e and the national ec
onomy may be (a) protec
ted to the maximum extent c
onsistent with this dec
lared polic
y and (b) not impeded by diverse, nonuniform, and c
onfusing c
igarette labeling and advertising regulations with respec
t to any relationship between smoking and health.” 79 stat. 282, 15 u. s. c
. §1331.
the requirement that c
igarette manufac
turers inc

lude in their pac
kaging and advertising the prec
ise warningsmandated by c
ongress furthers the ac
t’s first purpose.and the ac
t’s pre-emption provisions promote its sec
ond purpose.
as amended, the labeling ac
t c
ontains two express preemption provisions. sec
tion 5(a) protec
ts c
igarette manufac
turers from inc

onsistent state labeling laws by prohibiting the requirement of additional statements relating tosmoking and health on c
igarette pac
kages. 15 u. s. c
. §1334(a). sec
tion 5(b), whic
h is at issue in this c
ase,provides that “[n]o requirement or prohibition based onsmoking and health shall be imposed under state law with respec
t to the advertising or promotion of any c
igarettesthe pac
kages of whic
h are labeled in c
onformity with theprovisions of this c
hapter.” §1334(b).
together, the labeling requirement and pre-emption provisions express c
ongress’ determination that the presc
ribed federal warnings are both nec
essary and suffic
ientto ac
hieve its purpose of informing the public
of the health c
onsequenc
es of smoking. bec
ause c
ongress has dec
ided 8 altria group
, inc

. v. good opinion of the c
ourt
that no additional warning statement is needed to attainthat goal, states may not impede c
ommerc
e in c
igarettesby enforc
ing rules that are based on an assumption that the federal warnings are inadequate. although both of theac
t’s purposes are furthered by prohibiting states from supplementing the federally presc
ribed warning, neitherwould be served by limiting the states’ authority to prohibit dec
eptive statements in c
igarette advertising. petitioners ac
knowledge that “c
ongress had no intention ofinsulating tobac
c
o c
ompanies from liability for inac
c
uratestatements about the relationship between smoking and health.” brief for petitioners 28. but they maintain thatc
ongress c
ould not have intended to permit the enforc
ement of state fraud rules bec
ause doing so would defeat the labeling ac
t’s purpose of preventing nonuniform state warning requirements. 15 u. s. c
. §1331.6 as we ob
——————
6petitioners also urge us to find support for their c
laim that c
ongress gave the ftc
exc
lusive authority to polic
e dec
eptive health-relatedc
laims in c
igarette advertising in what they refer to as the labelingac
t’s “saving c
lause.” the c
lause provides that, apart from the warningrequirement, nothing in the ac
t “shall be c
onstrued to limit, restric
t, expand, or otherwise affec
t the authority of the federal trade c
ommission with respec
t to unfair or dec
eptive ac
ts or prac
tic
es in the advertising of c
igarettes.” §1336. a plurality of this c
ourt has previously readthis c
lause to “indic
at[e] that c
ongress intended the phrase ‘relating tosmoking and health’ . . . to be c
onstrued narrowly, so as not to prosc
ribe the regulation of dec
eptive advertising.” c
ipollone v. liggett group, inc

., 505 u. s. 504, 528–529 (1992). nothing in the c
lause suggests that c
ongress meant to prosc
ribe the states’ historic
regulation of dec
eptive advertising prac
tic
es. the ftc
has long depended onc
ooperative state regulation to ac
hieve its mission bec
ause, although one of the smallest administrative agenc
ies, it is c
harged with polic
ing an enormous amount of ac
tivity. see 1 s. kanwit, federal trade c
ommission §§1:1, 1:2 (2004 ed. and supp. 2008). moreover, when the labeling ac
t was amended in 1969 it was not even c
lear that the ftc
possessed rulemaking authority, see 84 stat. 89, making it highlyunlikely that c
ongress would have intended to assign exc
lusively tothe ftc
the substantial task of overseeing dec
eptive prac
tic
es inc

igarette advertisements. 9 c
ite as: 555 u. s. ____ (2008) opinion of the c
ourt
served in c
ipollone, however, fraud c
laims “rely only on asingle, uniform standard: falsity.” 505 u. s., at 529 (plurality opinion).
although it is c
lear that fidelity to the ac
t’s purposesdoes not demand the pre-emption of state fraud rules, theprinc

ipal question that we must dec
ide is whether the textof §1334(b) nevertheless requires that result.
iii we have c
onstrued the operative phrases of §1334(b) intwo prior c
ases: c
ipollone, 505 u. s. 504, and reilly, 533
u. s. 525. on both oc
c
asions we rec
ognized that the phrase “based on smoking and health” modifies the statelaw rule at issue rather than a partic
ular applic
ation of that rule.
in c
ipollone, the plurality, whic
h c
onsisted of c
hief justic
e rehnquist and justic
es white, o’c
onnor, andstevens
, read the pre-emption provision in the 1969amendments to the labeling ac
t to pre-empt c
ommon-lawrules as well as positive enac
tments. unlike justic
es blac
kmun, kennedy
, and souter
, the plurality c
onc
luded that the provision does not prec
lude all c
ommonlaw c
laims that have some relationship to smoking and health. 505 u. s., at 521–523. to determine whether a partic
ular c
ommon-law c
laim is pre-empted, the pluralityinquired “whether the legal duty that is the predic
ate of the c
ommon-law damages ac
tion c
onstitutes a ‘requirement or prohibition based on smoking and health . . . with respec
t to . . . advertising or promotion,’ giving that c
lause a fair but narrow reading.” id., at 524.
applying this standard, the plurality held that theplaintiff’s c
laim that c
igarette manufac
turers had fraudulently misrepresented and c
onc
ealed a material fac
t was not pre-empted. that c
laim alleged a violation of the manufac
turers’ duty not to dec
eive—a duty that is not “based on” smoking and health. id., at 528–529. respon10 altria group
, inc

. v. good opinion of the c
ourt
dents in this c
ase also allege a violation of the duty not todec
eive as that duty is c
odified in the mutpa. the duty c
odified in that state statute, like the duty imposed by thestate c
ommon-law rule at issue in c
ipollone, has nothing to do with smoking and health.7
petitioners endeavor to distanc
e themselves from that holding by arguing that respondents’ c
laim is more analogous to the “warning neutralization” c
laim found to be preempted in c
ipollone. although the plurality understood the plaintiff to have presented that c
laim as a “theory of fraudulent misrepresentation,” id., at 528, the gravamenof the c
laim was the defendants’ failure to warn, as it was “predic
ated on a state-law prohibition against statementsin advertising and promotional materials that tend to minimize the health hazards assoc
iated with smoking,” id., at 527. thus understood, the c
ipollone plurality’sanalysis of the warning neutralization c
laim has no applic
ation in this c
ase.8
—————— 7in his dissent, justic
e thomas
c
ritic
izes our relianc
e on the plurality opinion in c
ipollone, post, at 6–8, 14–19, 22, and advoc
ates adopting the analysis set forth by justic
e scalia
in his opinion c
onc
urring in thejudgment in part and dissenting in part in that c
ase, post, at 3–6, 19–
21. but justic
e scalia
’s approac
h was rejec
ted by seven members of the c
ourt, and in the almost 17 years sinc

e c
ipollone was dec
ided c
ongress has done nothing to indic
ate its approval of that approac
h. moreover, justic
e thomas
fails to explain why c
ongress would have intended the result that justic
e scalia
’s approac
h would produc
e—namely, permitting c
igarette manufac
turers to engage in fraudulentadvertising. as a majority of the c
ourt c
onc
luded in c
ipollone, nothing in the labeling ac
t’s language or purpose supports that result.
8the c
ipollone plurality further stated that the warning neutralization c
laim was “merely the c
onverse of a state-law requirement that warnings be inc

luded in advertising and promotional materials,” 505
u. s., at 527, evinc

ing the plurality’s rec
ognition that warning neutralization and failure-to-warn c
laims are two sides of the same c
oin. justic
e thomas
’ c
ritic
ism of the plurality’s treatment of the failure-towarn c
laim, post, at 16, is beside the point, as no suc
h c
laim is at issue in this litigation. 11 c
ite as: 555 u. s. ____ (2008) opinion of the c
ourt
petitioners nonetheless c
ontend that respondents’ c
laimis like the pre-empted warning neutralization c
laim bec
ause it is based on statements that “might c
reate a false impression” rather than statements that are “inherently false.” brief for petitioners 39. but the extent of the falsehood alleged does not alter the nature of the c
laim. nothing in the labeling ac
t’s text or purpose or in the plurality opinion in c
ipollone suggests that whether a c
laim is pre-empted turns in any way on the distinc

tion between misleading and inherently false statements.petitioners’ misunderstanding is the same one that led the c
ourt of appeals for the fifth c
irc
uit, when c
onfronted with a “light” desc
riptors c
laim, to reac
h a result at odds with the c
ourt of appeals’ dec
ision in this c
ase. see brown, 479 f. 3d, at 391–393. c
ertainly, the extent of thefalsehood alleged may bear on whether a plaintiff c
anprove her fraud c
laim, but the merits of respondents’ c
laimare not before us.
onc
e that erroneous distinc

tion is set aside, it is c
lear that our holding in c
ipollone that the c
ommon-law fraud c
laim was not pre-empted is direc
tly applic
able to thestatutory c
laim at issue in this c
ase. as was true of the c
laim in c
ipollone, respondents’ c
laim that the dec
eptivestatements “light” and “lowered tar and nic
otine” induc
edthem to purc
hase petitioners’ produc
t alleges a breac
h ofthe duty not to dec
eive.9 to be sure, the presenc
e of thefederally mandated warnings may bear on the materialityof petitioners’ allegedly fraudulent statements, “but thatpossibility does not c
hange [respondents’] c
ase from one
—————— 9as the c
ourt of appeals observed, respondents’ allegations regarding petitioners’ use of the statements “light” and “lowered tar and nic
otine” c
ould also support a warning neutralization c
laim. but respondents did not bring suc
h a c
laim, and the fac
t that they c
ouldhave does not, as petitioners suggest, elevate form over substanc
e.there is nothing new in the rec
ognition that the same c
onduc
t might violate multiple prosc
riptions.
12 altria group
, inc

. v. good
opinion of the c
ourt
about the statements into one about the warnings.” 501
f.

3d, at 44.

10

our dec
ision in reilly is c
onsistent with c
ipollone’s analysis. reilly involved regulations promulgated by the massac
husetts attorney general “‘in order to address theinc

idenc
e of c
igarette smoking and smokeless tobac
c
o use by c
hildren under legal age . . . [and] in order to prevent ac
c
ess to suc
h produc
ts by underage c
ustomers.’” 533
u. s., at 533 (quoting 940 c
ode mass. regs. §21.01 (2000)).the regulations did not pertain to the c
ontent of anyadvertising; rather, they plac
ed a variety of restric
tions on c
ertain c
igarette sales and the loc
ation of outdoor andpoint-of-sale c
igarette advertising. the attorney generalpromulgated those restric
tions pursuant to his statutory authority to prevent unfair or dec
eptive trade prac
tic
es. mass. gen. laws, c
h. 93a, §2 (west 1996). but althoughthe attorney general’s authority derived from a generaldec
eptive prac
tic
es statute like the one at issue in this c
ase, the c
hallenged regulations targeted advertising thattended to promote tobac
c
o use by c
hildren instead of prohibiting false or misleading statements. thus, whereas the “prohibition” in c
ipollone was the c
ommon-law fraud rule, the “prohibitions” in reilly were the targeted regula
—————— 10 justic
e thomas
c
ontends that respondents’ fraud c
laim must be pre-empted bec
ause “[a] judgment in [their] favor will . . . result in a ‘requirement’ that petitioners represent the effec
ts of smoking on health in a partic
ular way in their advertising and promotion of lightc
igarettes.” post, at 3. he further asserts that “respondents seek to require the c
igarette manufac
turers to provide additional warnings about c
ompensatory behavior, or to prohibit them from selling theseproduc
ts with the ‘light’ or ‘low-tar’ desc
riptors.” post, at 20. but this misc
harac
terizes the relief respondents seek. if respondents prevail attrial, petitioners will be prohibited from selling as “light” or “low tar”only those c
igarettes that are not ac
tually light and do not ac
tuallydeliver less tar and nic
otine. barring intervening federal regulation,petitioners would remain free to make nonfraudulent use of the “light” and “low-tar” desc
riptors. 13 c
ite as: 555 u. s. ____ (2008)
opinion of the c
ourt
tions. ac
c
ordingly, our holding in reilly that the regulations were pre-empted provides no support for an argument that a general prohibition of dec
eptive prac
tic
es is “based on” the harm c
aused by the spec
ific
kind of dec
eption to whic
h the prohibition is applied in a given c
ase.
it is true, as petitioners argue, that the appeal of their advertising is based on the relationship between smoking and health. and although respondents have expressly repudiated any c
laim for damages for personal injuries, see app. 26a, their ac
tual injuries likely enc
ompass harmsto health as well as the monetary injuries they allege. these arguments are unavailing, however, bec
ause thetext of §1334(b) does not refer to harms related to smoking and health. rather, it pre-empts only requirements and prohibitions—i.e., rules—that are based on smoking and health. the mutpa says nothing about either “smoking” or “health.” it is a general rule that c
reates a duty not todec
eive and is therefore unlike the regulations at issue in reilly.11
petitioners argue in the alternative that we shouldrejec
t the express pre-emption framework established by the c
ipollone plurality and relied on by the c
ourt in reilly. in so doing, they invoke the reasons set forth inthe separate opinions of justic
e blac
kmun (who espec
ially c
ritic
ized the plurality’s holding that the failure-to-warnc
laim was pre-empted) and justic
e scalia
(who arguedthat the fraud c
laim also should be pre-empted). while we again ac
knowledge that our analysis of these c
laims may lac
k “theoretic
al eleganc
e,” we remain persuaded that it
—————— 11in implementing the mutpa, neither the state legislature nor thestate attorney general has enac
ted a set of spec
ial rules or guidelinestargeted at c
igarette advertising. as we noted in c
ipollone, it was the threatened enac
tment of new state warning requirements rather thanthe enforc
ement of pre-existing general prohibitions against dec
eptiveprac
tic
es that prompted c
ongressional ac
tion in 1969. 505 u. s., at 515, and n. 11. 14 altria group
, inc

. v. good opinion of the c
ourt
represents “a fair understanding of c
ongressional purpose.” c
ipollone, 505 u. s., at 529–530, n. 27 (plurality opinion).
petitioners also c
ontend that the plurality opinion is inc

onsistent with our dec
isions in americ
an airlines, inc

.
v. wolens, 513 u. s. 219 (1995), and riegel v. medtronic
, inc

., 552 u. s. ___ (2008). both c
ases, however, are inapposite—the first bec
ause it involved a pre-emption provision muc
h broader than the labeling ac
t’s, and the sec
ond bec
ause it involved prec
isely the type of state rule thatc
ongress had intended to pre-empt.
at issue in wolens was the pre-emptive effec
t of theairline deregulation ac
t of 1978 (ada), 49 u. s. c
. app. §1305(a)(1) (1988 ed.), whic
h prohibits states fromenac
ting or enforc
ing any law “relating to rates, routes, or servic
es of any air c
arrier.” the plaintiffs in that c
asesought to bring a c
laim under the illinois c
onsumer fraud and dec
eptive business prac
tic
es ac
t, ill. c
omp. stat., c
h.815, §505 (west 1992). our c
onc
lusion that the state-law c
laim was pre-empted turned on the unusual breadth ofthe ada’s pre-emption provision. we had previously heldthat the meaning of the key phrase in the ada’s preemption provision, “‘relating to rates, routes, or servic
es,’” is a broad one. morales v. trans world airlines, inc

., 504
u. s. 374, 383–384 (1992) (emphasis added). relying on prec
edents c
onstruing the pre-emptive effec
t of the samephrase in the employee retirement inc

ome sec
urity ac
t of1974, 29 u. s. c
. §1144(a), we c
onc
luded that the phrase “relating to” indic
ates c
ongress’ intent to pre-empt a largearea of state law to further its purpose of deregulating theairline industry. 504 u. s., at 383–384.12 unquestionably, ——————
12petitioners also point to morales as evidenc
e that our dec
ision in c
ipollone was wrong. but morales predated c
ipollone, and it is in anyevent even more easily distinguishable from this c
ase than americ
an airlines, inc

. v. wolens, 513 u. s 219 (1995). at issue in morales were guidelines regarding the form and substanc
e of airline fare advertising 15 c
ite as: 555 u. s. ____ (2008)
opinion of the c
ourt
the phrase “relating to” has a broader sc
ope than the labeling ac
t’s referenc
e to rules “based on” smoking and health; whereas “relating to” is synonymous with “having a c
onnec
tion with,” id., at 384, “based on” desc
ribes a more direc
t relationship, see safec
o ins. c
o. of americ
a v. burr, 551 u. s. ___, ___ (2007) (slip op., at 13) (“in c
ommon talk, the phrase ‘based on’ indic
ates a but-for c
ausal relationship and thus a nec
essary logic
al c
ondition”).
petitioners’ relianc
e on riegel is similarly misplac
ed. the plaintiffs in riegel sought to bring c
ommon-law design, manufac
turing, and labeling defec
t c
laims against the manufac
turer of a faulty c
atheter. the c
ase presented the question whether those c
laims were expressly preempted by the medic
al devic
e amendments of 1976 (mda), 21 u. s. c
. §360c
et seq. the mda’s pre-emptionc
lause provides that no state “‘may establish or c
ontinue in effec
t with respec
t to a devic
e . . . any requirement’ relating to safety or effec
tiveness that is different from, or in addition to, federal requirements.” riegel, 552 u. s., at ___ (slip op., at 14) (quoting 21 u. s. c
. §360k(a); emphasis deleted).
the c
atheter at issue in riegel had rec
eived premarketapproval from the food and drug administration (fda). we c
onc
luded that premarket approval imposes “requirement[s] relating to safety [and] effec
tiveness” bec
ause the fda requires a devic
e that has rec
eived premarket approval to be made with almost no design, manufac
turing, or labeling deviations from the spec
ific
ations in its approved applic
ation. the plaintiffs’ produc
ts liability
—————— implemented by the national assoc
iation of attorneys general to givec
ontent to state dec
eptive prac
tic
es rules. 504 u. s., at 379. like the regulations at issue in reilly, the guidelines were industry-spec
ific
direc
tives that targeted the subjec
t matter made off-limits by the ada’s express pre-emption provisions. see also rowe v. new hampshire motor transp. assn., 552 u. s. ___ (2008) (holding that targeted groundc
arrier regulations were pre-empted by a statute modeled on the ada).
16 altria group
, inc

. v. good
opinion of the c
ourt
c
laims fell within the c
ore of the mda’s pre-emption provision bec
ause they sought to impose different requirements on prec
isely those aspec
ts of the devic
e that thefda had approved. unlike the c
ipollone plaintiff’s fraud c
laim, whic
h fell outside of the labeling ac
t’s pre-emptive reac
h bec
ause it did not seek to impose a prohibition“based on smoking and health,” the riegel plaintiffs’ c
ommon-law produc
ts liability c
laims unquestionably sought to enforc
e “requirement[s] relating to safety or effec
tiveness” under the mda. that the “relating to” language of the mda’s pre-emption provision is, like the ada’s, muc
h broader than the operative language of the labeling ac
tprovides an additional basis for distinguishing riegel. thus, c
ontrary to petitioners’ suggestion, riegel is entirely c
onsistent with our holding in c
ipollone.
in sum, we c
onc
lude now, as the plurality did in c
ipollone, that “the phrase ‘based on smoking and health’ fairlybut narrowly c
onstrued does not enc
ompass the moregeneral duty not to make fraudulent statements.” 505
u. s., at 529.
iv as an alternative to their express pre-emption argument, petitioners c
ontend that respondents’ c
laim is impliedly pre-empted bec
ause, if allowed to proc
eed, it would present an obstac
le to a longstanding polic
y of the ftc
. ac
c
ording to petitioners, the ftc
has for dec
ades promoted the development and c
onsumption of low tar c
igarettes and has enc
ouraged c
onsumers to rely on representations of tar and nic
otine c
ontent based on c
ambridge filter method testing in c
hoosing among c
igarette brands. even if suc
h a regulatory polic
y c
ould provide a basis forobstac
le pre-emption, petitioners’ desc
ription of the ftc
’sac
tions in this regard are inac
c
urate. the government itself disavows any polic
y authorizing the use of “light” and “low tar” desc
riptors. brief for united states as 17 c
ite as: 555 u. s. ____ (2008)
opinion of the c
ourt
amic
us c
uriae 16–33.
in 1966, following the public
ation of the surgeon general’s report on smoking and health, the ftc
issued anindustry guidanc
e stating its view that “a fac
tual statement of the tar and nic
otine c
ontent (expressed in milligrams) of the mainstream smoke from a c
igarette,” as measured by c
ambridge filter method testing, would notviolate the ftc
ac
t. app. 478a. the c
ommission made c
lear, however, that the guidanc
e applied only to fac
tualassertions of tar and nic
otine yields and did not invite “c
ollateral representations . . . made, expressly or by implic
ation, as to reduc
tion or elimination of health hazards.” id., at 479a. a year later, the ftc
reiterated itsposition in a letter to the national assoc
iation of broadc
asters. the letter explained that, as a “general rule,” thec
ommission would not c
hallenge statements of tar andnic
otine c
ontent when “they are shown to be ac
c
urate andfully substantiated by tests c
onduc
ted in ac
c
ordanc
e withthe [c
ambridge filter method].” id., at 368a. in 1970, the ftc
c
onsidered providing further guidanc
e, proposing arule that would have required manufac
turers to disc
lose tar and nic
otine yields as measured by c
ambridge filtermethod testing. 35 fed. reg. 12671. the leading c
igarette manufac
turers responded by submitting a voluntary agreement under whic
h they would disc
lose tar and nic
otine c
ontent in their advertising, app. 899a–900a, and theftc
suspended its rulemaking, 36 fed. reg. 784 (1971).
based on these events, petitioners assert that “the ftc
has required tobac
c
o c
ompanies to disc
lose tar and nic
otine yields in c
igarette advertising using a governmentmandated testing methodology and has authorized them to use desc
riptors as shorthand referenc
es to those numeric
al test results.” brief for petitioners 2 (emphasis in original). as the foregoing history shows, however, the ftc
has in fac
t never required that c
igarette manufac
turers disc
lose tar and nic
otine yields, nor has it c
ondoned 18 altria group
, inc

. v. good
opinion of the c
ourt
representations of those yields through the use of “light” or “low tar” desc
riptors.
subsequent c
ommission ac
tions further undermine petitioners’ c
laim. after the tobac
c
o c
ompanies agreed to report tar and nic
otine yields as measured by the c
ambridge filter method, the ftc
c
ontinued to polic
e c
igarette c
ompanies’ misleading use of test results. in 1983, the ftc
responded to findings that tar and nic
otine yields for barc
lay c
igarettes obtained through c
ambridge filtermethod testing were dec
eptive bec
ause the c
igarettes infac
t delivered disproportionately more tar to smokers than other c
igarettes with similar c
ambridge filter methodratings. 48 fed. reg. 15954. and in 1995, the ftc
found that a manufac
turer’s representation “that c
onsumers willget less tar by smoking ten pac
ks of c
arlton brand c
igarettes than by smoking a single pac
k of the other brands”was dec
eptive even though it was based on the results of c
ambridge filter method testing. in re americ
an tobac
c
o c
o., 119 f. t. c
. 3, 4. the ftc
’s c
onc
lusion was based on its rec
ognition that, “[i]n truth and in fac
t, c
onsumers will not nec
essarily get less tar” due to “suc
h behavior as c
ompensatory smoking.” ibid.13 ——————
13in a different ac
tion, the ftc
c
harged a c
igarette manufac
turer with violating the ftc
ac
t by misleadingly advertising c
ertain brands as “low in tar” even though they had a higher-than-average tar rating.see in re americ
an brands, inc

., 79 f. t. c
. 255 (1971). the c
ommission and the manufac
turer entered a c
onsent order that prevented the manufac
turer from making any suc
h representations unless they were ac
c
ompanied by a c
lear and c
onspic
uous disc
losure of the c
igarettes’ tar and nic
otine c
ontent as measured by the c
ambridge filter method. id., at 258. petitioners offer this c
onsent order as evidenc
e that the ftc
authorized the use of “light” and “low tar” desc
riptors as long as theyac
c
urately desc
ribe c
ambridge filter method test results. as the government observes, however, the dec
ree only enjoined c
onduc
t. brief for united states as amic
us c
uriae 26. and a c
onsent order is in anyevent only binding on the parties to the agreement. for all of these reasons, the c
onsent order does not support the c
onc
lusion that respondents’ c
laim is impliedly pre-empted. 19 c
ite as: 555 u. s. ____ (2008)
opinion of the c
ourt
this history shows that, c
ontrary to petitioners’ suggestion, the ftc
has no longstanding polic
y authorizingc
ollateral representations based on c
ambridge filtermethod test results. rather, the ftc
has endeavored to inform c
onsumers of the c
omparative tar and nic
otine c
ontent of different c
igarette brands and has in some instanc
es prevented misleading representations of c
ambridge filter method test results. the ftc
’s failure to require petitioners to c
orrec
t their allegedly misleadinguse of “light” desc
riptors is not evidenc
e to the c
ontrary; agenc
y nonenforc
ement of a federal statute is not the same as a polic
y of approval. c
f. sprietsma v. merc
ury marine, 537 u. s. 51 (2002) (holding that the c
oast guard’s dec
ision not to regulate propeller guards did not impliedly preempt petitioner’s tort c
laims).14
more telling are the ftc
’s rec
ent statements regardingthe use of “light” and “low tar” desc
riptors. in 1997, the c
ommission observed that “[t]here are no offic
ial definitions for” the terms “light” and “low tar,” and it soughtc
omments on whether “there [is] a need for offic
ial guidanc
e with respec
t to the terms” and whether “the desc
riptors c
onvey implied health c
laims.” 62 fed. reg. 48163.in november 2008, following public
notic
e and c
omment,the c
ommission resc
inded its 1966 guidanc
e c
onc
erningthe c
ambridge filter method. 73 fed. reg. 74500. the resc
ission is a response to “a c
onsensus among the public
health and sc
ientific
c
ommunities that the c
ambridgefilter method is suffic
iently flawed that statements of tar and nic
otine yields as measured by that method are notlikely to help c
onsumers make informed dec
isions.” id., at 74503. the c
ommission’s notic
e of its proposal to resc
ind ——————
14it seems partic
ularly inappropriate to read a polic
y of authorization into the ftc
’s inac
tion when that inac
tion is in part the result ofpetitioners’ failure to disc
lose study results showing that c
ambridge filter method test results do not reflec
t the amount of tar and nic
otine that c
onsumers of “light” c
igarettes ac
tually inhale. see id., at 8–11. 20 altria group
, inc

. v. good opinion of the c
ourt
the guidanc
e also reiterated the original limits of that guidanc
e, noting that it “only addresse[d] simple fac
tual statements of tar and nic
otine yields. it d[id] not apply to other c
onduc
t or express or implied representations, evenif they c
onc
ern[ed] tar and nic
otine yields.” id., at 40351.
in short, neither the handful of industry guidanc
es and c
onsent orders on whic
h petitioners rely nor the ftc
’s inac
tion with regard to “light” desc
riptors even arguably justifies the pre-emption of state dec
eptive prac
tic
es ruleslike the mutpa.
v we c
onc
lude, as we did in c
ipollone, that the labeling ac
t does not pre-empt state-law c
laims like respondents’ that are predic
ated on the duty not to dec
eive. we also hold that the ftc
’s various dec
isions with respec
t tostatements of tar and nic
otine c
ontent do not impliedly pre-empt respondents’ c
laim. respondents still must prove that petitioners’ use of “light” and “lowered tar” desc
riptors in fac
t violated the state dec
eptive prac
tic
esstatute, but neither the labeling ac
t’s pre-emption provision nor the ftc
’s ac
tions in this field prevent a jury fromc
onsidering that c
laim. ac
c
ordingly, the judgment of the c
ourt of appeals is affirmed, and the c
ase is remanded forfurther proc
eedings c
onsistent with this opinion.
it is so ordered. _________________ _________________ 1 c
ite as: 555 u. s. ____ (2008)
thomas
, j., dissenting

supreme c
ourt of the united states
no. 07–562
altria group
, inc

., et al., petitioners v.stephanie good et al
.
on writ of c
ertiorari to the united states c
ourt of appeals for the first c
irc
uit
[dec
ember 15, 2008]
justic
e thomas
, with whom the c
hief justic
e, justic
e scalia
, and justic
e alito
join, dissenting.
this appeal requires the c
ourt to revisit its dec
ision in c
ipollone v. liggett group, inc

., 505 u. s. 504 (1992). as in that c
ase, the question before us is whether state-law c
laims alleging that c
igarette manufac
turers misled thepublic
about the health effec
ts of c
igarettes are preempted by the federal c
igarette labeling and advertisingac
t, as amended in 1969 (labeling ac
t or ac
t). the labeling ac
t requires that spec
ific
health warnings be plac
ed onall c
igarette pac
kaging and advertising, 15 u. s. c
. §1333,in order to eliminate “diverse, nonuniform, and c
onfusing c
igarette labeling and advertising regulations with respec
tto any relationship between smoking and health,” §1331.to that end, §5(b) of the labeling ac
t pre-empts any “requirement or prohibition based on smoking and health . . .imposed under state law with respec
t to the advertising orpromotion of any c
igarettes.” §1334(b).
whether §5(b) pre-empts state c
ommon-law c
laims divided the c
ourt in c
ipollone. the plurality opinionfound some c
laims expressly pre-empted and others not,depending on whether “the legal duty that is the predic
ate of the c
ommon-law damages ac
tion c
onstitutes a requirement or prohibition based on smoking and health . . . imposed under state law with respec
t to . . . advertising or 2 altria group
, inc

. v. good thomas
, j., dissenting
promotion.” 505 u. s., at 524 (internal quotation marksomitted; emphasis added). a majority of the c
ourt disagreed with the plurality’s predic
ate-duty approac
h. id., at 543 (blac
kmun, j., c
onc
urring in part, c
onc
urring injudgment in part, and dissenting in part); id., at 552–554 (scalia
, j., c
onc
urring in judgment in part and dissentingin part). in partic
ular, justic
e scalia
rec
ognized thatthe plurality’s interpretation of §5(b) c
reated an unworkable test for pre-emption with little or no relationship tothe text of the statute. id., at 544, 555–556. the intervening years have vindic
ated justic
e scalia
’s c
ritic
al assessment; the lower c
ourts have c
onsistently expressed frustration at the diffic
ulty in applying the c
ipolloneplurality’s test. moreover, this c
ourt’s rec
ent pre-emptiondec
isions have undermined, and in some c
ases overruled, c
entral aspec
ts of the plurality’s atextual approac
h to express pre-emption generally, riegel v. medtronic
, inc

., 552 u. s. ___ (2008), and to §5(b) of the labeling ac
t spec
ific
ally, lorillard tobac
c
o c
o. v. reilly, 533 u. s. 525 (2001).
the majority today ignores these problems and adoptsthe methodology of the c
ipollone plurality as governing law. as a c
onsequenc
e, the majority c
onc
ludes that statelaw liability for dec
eiving purc
hasers about the healtheffec
ts of smoking light c
igarettes is not a “requirement or prohibition based on smoking and health” under the labeling ac
t. the c
ourt’s fidelity to c
ipollone is unwise and unnec
essary. the c
ourt should instead provide the lower c
ourts with a c
lear test that advanc
es c
ongress’ statedgoals by interpreting §5(b) to expressly pre-empt anyc
laim that “imposes an obligation . . . bec
ause of the effec
t of smoking upon health.” c
ipollone, supra, at 554 (opinion of scalia
, j.).
respondents’ lawsuit under the maine unfair tradeprac
tic
es ac
t (mutpa), me. rev. stat. ann., tit. 5, §207(supp. 2008), is expressly pre-empted under §5(b) of the 3 c
ite as: 555 u. s. ____ (2008) thomas
, j., dissenting
labeling ac
t. the c
ivil ac
tion is premised on the allegation that the c
igarette manufac
turers misled respondents into believing that smoking light c
igarettes would behealthier for them than smoking regular c
igarettes. a judgment in respondents’ favor will thus result in a “requirement” that petitioners represent the effec
ts of smoking on health in a partic
ular way in their advertising andpromotion of light c
igarettes. bec
ause liability in this c
ase is thereby premised on the effec
t of smoking on health, iwould hold that respondents’ state-law c
laims are expressly pre-empted by §5(b) of the labeling ac
t. i respec
tfully dissent.
i in c
ipollone, a smoker and her spouse brought statec
ommon-law c
laims for fraud, breac
h of warranty, and failure to warn against c
igarette manufac
turers for their alleged failure to adequately disc
lose the health risks of smoking. 505 u. s., at 509. as here, the c
igarette manufac
turer asserted that the c
laims were pre-empted by §5(b)of the labeling ac
t.in dec
iding the c
ase, the c
ourt c
ould not agree on the meaning of the labeling ac
t’s express pre-emption provision. it produc
ed three separate opinions, none of whic
h reflec
ted the views of a majority of justic
es. relyingheavily on a “presumption against the pre-emption of statepolic
e power regulations,” a plurality opinion by justic
e stevens
settled on a “narrow reading” of the labeling ac
tthat tested §5(b)’s pre-emptive effec
t under a c
laim-byc
laim approac
h. id., at 524. this approac
h c
onsideredeac
h state-law c
laim and asked whether it is predic
ated“on a duty ‘based on smoking and health.’” id., at 528; see also id., at 524. if so, the c
laim is pre-empted. id., at 524,

528. if, however, the c
laim is predic
ated on a “more general obligation” under state law, it may proc
eed. id., at 528–529.
4 altria group
, inc

. v. good thomas
, j., dissenting

applying a test that it c
onc
eded lac
ked “theoretic
al eleganc
e,” id., at 530, n. 27, the plurality held that the failure-to-warn c
laims were pre-empted “to the extent that those c
laims rel[ied] on omissions or inc

lusions in . . . advertising or promotions” of c
igarettes. id., at 531. the same was true for one of the fraud c
laims, whic
h allegedthat the c
igarette manufac
turers had used their advertising to neutralize the federally required warning labels. id., at 527–528. the plurality determined that thesec
laims were “predic
ated on a state-law prohibition against statements . . . that tend to minimize the health hazards assoc
iated with smoking.” id., at 527. thus, ac
c
ording tothe plurality, these state-law c
laims sought rec
overy under the theory that the c
igarette manufac
turer breac
hed a duty based on smoking or health. but the plurality found that the other fraud c
laim, whic
h allegedmisrepresentation or c
onc
ealment of a material fac
t, was not pre-empted bec
ause it was based on a more general state-law obligation: “the duty not to dec
eive.” id., at 528–

529.

justic
e blac
kmun, writing for three justic
es, departedfrom the plurality on the antec
edent question whether thelabeling ac
t pre-empted state c
ommon-law damages c
laims at all. id., at 535–542 (opinion, joined by kennedy
and souter
, jj., c
onc
urring in part, c
onc
urring in judgment in part, and dissenting in part). he c
onc
luded that the phrase “‘state law’” in §5(b) referred only to “positive enac
tments suc
h as statutes and regulations.” id., at 535. but justic
e blac
kmun spec
ific
ally noted that even if state c
ommon-law c
laims were within the sc
ope of the labelingac
t, he c
ould not join the plurality’s c
laim-by-c
laim approac
h bec
ause he “perc
eive[d] no princ

ipled basis formany of the plurality’s asserted distinc

tions among the c
ommon-law c
laims.” id., at 543. justic
e blac
kmun wrote that c
ongress c
ould not have “intended to c
reate suc
h ahodgepodge of allowed and disallowed c
laims when it 5 c
ite as: 555 u. s. ____ (2008)
thomas
, j., dissenting
amended the pre-emption provision in 1970,” and lamented the “diffic
ulty lower c
ourts w[ould] enc
ounter inattempting to implement” the plurality’s test. id., at 543–
544.
justic
e scalia
, writing for two justic
es, also faulted the plurality for its c
laim-by-c
laim approac
h. id., at 544– 556 (opinion, joined by thomas
, j., c
onc
urring in judgment in part and dissenting in part). although he agreedwith the plurality that the phrase “‘state law’” in §5(b)enc
ompassed state c
ommon-law c
laims as well as statestatutes and regulations, id., at 548–549, justic
e scalia
objec
ted to the plurality’s invoc
ation of a presumptionagainst pre-emption to narrowly interpret §5(b), id., at 544, 545–547. bec
ause c
ongress had expressed its intentto pre-empt state law by enac
ting §5(b), the c
ourt’s “responsibility [was] to apply to the text ordinary princ

iples of statutory c
onstruc
tion.” id., at 545.1 by employing its“newly c
rafted doc
trine of narrow c
onstruc
tion,” justic
e scalia
wrote, the plurality arrived at a c
ramped and unnatural c
onstruc
tion of §5(b) that failed to give effec
t tothe statutory text. id., at 544–548.
applying “ordinary princ

iples” of statutory c
onstruc
tion, id., at 548, justic
e scalia
determined that the propertest for pre-emption of state-law c
laims under §5(b) was far less c
omplic
ated than the plurality’s c
laim-by-c
laim approac
h. as he explained, “[o]nc
e one is forc
ed to selec
t a c
onsistent methodology for evaluating whether a given legal duty is ‘based on smoking and health,’ it bec
omesobvious that the methodology must foc
us not upon the
—————— 1 justic
e scalia
also c
ritic
ized the plurality for announc
ing a new rule that the enac
tment of an express pre-emption c
lause eliminatesany c
onsideration of implied pre-emption. he explained that this newrule c
reated misc
hief bec
ause, when c
ombined with the presumptionagainst pre-emption, it plac
ed a heavy burden of exac
titude on c
ongress when it wishes to say anything about pre-emption. see c
ipollone, 505 u. s., at 547–548. 6 altria group
, inc

. v. good
thomas
, j., dissenting
ultimate sourc
e of the duty . . . but upon its proximateapplic
ation.” id., at 553. this “proximate applic
ation” test, therefore, foc
uses not on the state-law duty invoked by the plaintiff, but on the effec
t of the suit on the c
igarette manufac
turer’s c
onduc
t—i.e., the “requirement” or“prohibition” that would be imposed under state law. put simply, if, “whatever the sourc
e of the duty, [the c
laim]imposes an obligation . . . bec
ause of the effec
t of smoking upon health,” it is pre-empted. id., at 554; see also id., at 555 (“the test for pre-emption in this setting should beone of prac
tic
al c
ompulsion, i.e., whether the law prac
tic
ally c
ompels the manufac
turers to engage in behavior that c
ongress has barred the states from presc
ribingdirec
tly”). justic
e scalia
also sec
onded justic
e blac
kmun’s c
onc
ern that the lower c
ourts would find the plurality’s distinc

tions between materially identic
al state-law c
laims to be inc

apable of applic
ation: “a disposition thatraises more questions than it answers does not serve the c
ountry well.” id., at 556.
ii sixteen years later, we must c
onfront c
ipollone to resolve the question presented in this c
ase: whether respondents’ c
lass-ac
tion c
laims for fraudulent marketing under the mutpa are pre-empted by §5(b) of the labeling ac
t. the majority adheres to c
ipollone bec
ause it “remain[s]persuaded” that the plurality’s c
onstruc
tion of the §5(b) was “‘fair.’” ante, at 13–14. i disagree. the c
ourt should disc
ard the c
ipollone plurality’s ill-c
onc
eived predic
ateduty approac
h and replac
e it with justic
e scalia
’s far more workable and textually sound “proximate applic
ation” test. the majority does not assert that the c
ipollone plurality opinion is binding prec
edent, and rightly so. bec
ause the “plurality opinion . . . did not represent the views of amajority of the c
ourt, we are not bound by its reasoning.” 7 c
ite as: 555 u. s. ____ (2008)
thomas
, j., dissenting
c
ts c
orp. v. dynamic
s c
orp. of americ
a, 481 u. s. 69, 81 (1987) (footnote omitted). at most, c
ipollone is a “point of referenc
e for further disc
ussion.” texas v. brown, 460
u. s. 730, 737 (1983) (plurality opinion). but even if the plurality opinion had some forc
e beyond its mere persuasive value, it nevertheless should be abandoned. it is unworkable; it has been overtaken by more rec
ent dec
isions of this c
ourt; and it c
annot be rec
onc
iled with a c
ommonsense reading of the text of §5(b).
a as predic
ted by a majority of the justic
es in c
ipollone, the plurality opinion’s c
laim-by-c
laim approac
h has proved unworkable in the lower federal c
ourts and state c
ourts. the distric
t c
ourt in this c
ase properly observed that“c
ourts remain divided about what the dec
ision means and how to apply it” and that “c
ipollone’s distinc

tions, thoughc
lear in theory, defy c
lear applic
ation.” 436 f. supp. 2d 132, 142 (me. 2006). other c
ourts have expressed similar frustration with the c
ipollone framework. see, e.g., glassner v. r. j. reynolds tobac
c
o c
o., 223 f. 3d 343, 348 (c
a6 2000) (“applying the plurality opinion in c
ipollone to the c
omplaint in the present c
ase is no easy task”); huddleston v. r. j. reynolds tobac
c
o c
o., 66 f. supp. 2d 1370,1380 (nd ga. 1999) (“it would be an understatement tosay that it is diffic
ult to apply the plurality opinion in c
ipollone to the amended c
omplaint in this c
ase. it is an impossibility”); in re welding fume prods. liability litigation, 364 f. supp. 2d 669, 681, n. 13 (nd ohio 2005) (“[i]n c
ipollone, the supreme c
ourt . . . delivered a frac
tured plurality opinion that is not easy to c
omprehend”); whiteley v. philip morris, inc

., 117 c
al. app. 4th 635, 670,11 c
al. rptr. 3d 807, 835–836 (2004) (“[c
ipollone is] ‘diffic
ult’ . . . due to the inherent c
ontradic
tion at the c
ore of the c
ase”); mangini v. r. j. reynolds tobac
c
o c
o., 21 c
al. rptr. 2d 232, 244 (c
al. app. 1993) (“c
ipollone draws no 8 altria group
, inc

. v. good
thomas
, j., dissenting
bright lines amenable to easy applic
ation”), aff’d, 7 c
al. 4th 1057, 875 p. 2d 73 (1994).
the c
ourt should not retain an interpretative test that has proved inc

apable of implementation. “[t]he misc
hievous c
onsequenc
es to litigants and c
ourts alike from the perpetuation of an unworkable rule are too great.” swift & c
o. v. wic
kham, 382 u. s. 111, 116 (1965); federal elec
tion c
omm’n v. wisc
onsin right to life, inc

., 551 u. s. ___, ___ (2007) (slip op., at 20) (scalia
, j., c
onc
urring in part and c
onc
urring in judgment) (“stare dec
isis c
onsiderations c
arry little weight when an erroneous ‘governingdec
isio[n]’ has c
reated an ‘unworkable’ legal regime” (quoting payne v. tennessee, 501 u. s. 808, 827 (1991)). we owe far more to the lower c
ourts, whic
h depend on this c
ourt’s guidanc
e, and to litigants, who must c
onform their ac
tions to the c
ourt’s interpretation of federal law. the c
ipollone plurality’s test for pre-emption under §5(b) should be abandoned for this reason alone.
b furthermore, in the years sinc

e c
ipollone was dec
ided, this c
ourt has altered its doc
trinal approac
h to express pre-emption. the c
ipollone plurality justified what itdesc
ribed as the “theoretic
al [in]eleganc
e” of its c
onstruc
tion of §5(b) by relying on the presumption against preemption, whic
h, it argued, required a narrow, but “fair,”c
onstruc
tion of the statute. 505 u. s., at 530, n. 27. see, e.g., id., at 518 (majority opinion) (“this presumptionreinforc
es the appropriateness of a narrow reading of §5”); id., at 523 (plurality opinion) (“[w]e must . . . narrowly c
onstrue the prec
ise language of §5(b)”); id., at 524 (§5(b) must be given “a fair but narrow reading”); id., at 529 (“[w]e c
onc
lude that the phrase ‘based on smoking andhealth’ fairly but narrowly c
onstrued does not enc
ompass the more general duty not to make fraudulent statements”). of c
ourse, as justic
e scalia
explained, there 9 c
ite as: 555 u. s. ____ (2008)
thomas
, j., dissenting
was nothing “fair” about imposing an artific
ially narrow c
onstruc
tion on the labeling ac
t’s pre-emption provision. see id., at 545 (explaining that the presumption againstpre-emption “dissolves onc
e there is c
onc
lusive evidenc
e of intent to pre-empt in the express words of the statuteitself”).
sinc

e c
ipollone, the c
ourt’s relianc
e on the presumptionagainst pre-emption has waned in the express pre-emption c
ontext. in 2002, for example, the c
ourt unanimously explained that the “task of statutory c
onstruc
tion must inthe first instanc
e foc
us on the plain wording of the [express pre-emption] c
lause, whic
h nec
essarily c
ontains thebest evidenc
e of c
ongress’ pre-emptive intent.” sprietsma
v. merc
ury marine, 537 u. s. 51, 62–63 (internal quotation marks omitted). without referring to any presumptionagainst pre-emption, the c
ourt dec
ided that the federal boat safety ac
t of 1971’s express pre-emption provisiondid not pre-empt state-law c
laims. id., at 62–64. most other dec
isions sinc

e c
ipollone also have refrained from invoking the presumption in the c
ontext of express preemption. see, e.g., rowe v. new hampshire motor transp. assn., 552 u. s. ___ (2008); engine mfrs. assn. v. south c
oast air quality management dist., 541 u. s. 246 (2004); buc
kman c
o. v. plaintiffs’ legal c
omm., 531 u. s. 341 (2001); united states v. loc
ke, 529 u. s. 89 (2000); geier v. americ
an honda motor c
o., 529 u. s. 861 (2000).
the c
ourt has invoked the presumption sporadic
allyduring this time frame. as the majority notes, ante, at 5, medtronic
, inc

. v. lohr, 518 u. s. 470 (1996), applied the presumption against pre-emption in dec
iding that thefederal manufac
turing and labeling requirements of themedic
al devic
e amendments of 1976 (mda) did not preempt state c
ommon-law c
laims. id., at 500–501. like c
ipollone before it, lohr produc
ed a frac
tured dec
ision featuring three opinions. 518 u. s., at 474 (opinion of stevens
, j.), id., at 503 (breyer
, j., c
onc
urring in part 10 altria group
, inc

. v. good thomas
, j., dissenting
and c
onc
urring in judgment), id., at 509 (o’c
onnor, j.,c
onc
urring in part and dissenting in part). and, like c
ipollone, lohr’s approac
h to express pre-emption predates the c
ourt’s rec
ent jurisprudenc
e on the topic
. in fac
t, this c
ourt last year revisited the pre-emption provision of the mda, 21 u. s. c
. §360k(a)(1), and did not employ any presumption against pre-emption. riegel v. medtronic
, inc

., 552 u. s. ___ (2008). see infra, at 11-13.2
more rec
ently, in reilly, 533 u. s. 525, a c
ase revisiting the meaning of §5(b) of the labeling ac
t, the c
ourt briefly alluded to the presumption, but did not rely on it to reac
hits dec
ision. see id., at 541–542, 546–551. indeed, the c
ourt’s c
ursory treatment of the presumption in reillystands in stark c
ontrast to the first c
irc
uit dec
ision it reversed; the first c
irc
uit relied heavily on the “full forc
e”of the presumption to determine that the regulations atissue were not pre-empted. see c
onsolidated c
igar c
orp.
v. reilly, 218 f. 3d 30, 38–41 (2000). this c
ourt, in overturning that judgment, dec
lined to employ the presumption in its c
onstruc
tion of §5(b). see reilly, 533 u. s., at 546–551. justic
e stevens
highlighted this very point indissent, arguing that if the presumption had been faith
—————— 2also, as in c
ipollone v. liggett group, inc

., 505 u. s. 504 (1992), the frac
tured dec
ision in lohr was a sourc
e of c
onfusion for the lower c
ourts. see kemp v. medtronic
, inc

., 231 f. 3d 216, 224 (c
a6 2000)(“the various c
ourts of appeals that have c
onfronted issues of preemption arising under the mda have struggled mightily with lohr’s language in an effort to disc
ern its holding”); see also martin v. medtronic
, inc

., 254 f. 3d 573, 579 (c
a5 2001) (“bec
ause only parts ofjustic
e stevens
’s opinion c
ommanded a majority, extrac
ting the finalmeaning of lohr is no easy task. . . . although justic
e breyer
’s c
onc
urrenc
e very spec
ific
ally disavows the view that c
ommon law duties c
annot provide substantive requirements for the purpose of preemption, neither his c
onc
urrenc
e nor the plurality opinion offers muc
h help to usin developing the point”). the c
onfusion was c
leared up in riegel. see infra, at 11–13. 11 c
ite as: 555 u. s. ____ (2008)
thomas
, j., dissenting
fully applied, the result would have been different. id., at 591–593.
the majority also relies on bates v. dow agrosc
ienc
es llc
, 544 u. s. 431 (2005), where the presumption was again mentioned, but only in dic
ta. as in reilly, the presumption did not drive the c
ourt’s c
onstruc
tion of the statute at issue. 544 u. s., at 449 (explaining that the presumption meant just that the holding of no preemption would have been the same “even if [respondent’s]alternative [c
onstruc
tion of the statute] were just as plausible as our reading of the text”); see also id., at 457 (thomas
, j., c
onc
urring in judgment in part and dissenting in part) (agreeing that the c
ase should be vac
ated andremanded and reiterating that the “presumption does not apply . . . when c
ongress has inc

luded within a statute an express pre-emption provision”). at bottom, although the c
ourt’s treatment of the presumption against pre-emptionhas not been uniform, the c
ourt’s express pre-emption c
ases sinc

e c
ipollone have marked a retreat from relianc
e on it to distort the statutory text.
if any doubt remained, it was eliminated last term in riegel. the question in riegel, as noted above, was whether the mda expressly pre-empts state c
ommon-law c
laims “c
hallenging the safety and effec
tiveness of a medic
al devic
e given premarket approval by the food and drug administration.” 552 u. s., at ___ (slip op., at 1). over the dissent of one justic
e, the c
ourt held that the statelaw c
laims were pre-empted bec
ause the requirements the plaintiffs sought to impose were “‘different from, or in addition to, any requirement applic
able . . . to the devic
e’” under federal law. id., at ___ (slip op., at 2) (quoting 21
u. s. c
. §360k(a)(1)). the c
ourt interpreted the statutewithout referenc
e to the presumption or any perc
eivedneed to impose a narrow c
onstruc
tion on the provision inorder to protec
t the polic
e power of the states. rather, the 12 altria group
, inc

. v. good
thomas
, j., dissenting
c
ourt simply c
onstrued the mda in ac
c
ordanc
e withordinary princ

iples of statutory c
onstruc
tion.
this was not ac
c
idental. the dissent foc
used on the c
ourt’s refusal to invoke the presumption in order to save the state-law c
laims from pre-emption. 552 u. s., at ___ (slip op., at ___) (opinion of ginsburg
, j.). the dissent was adamant that “[f]ederal laws c
ontaining a preemption c
lause do not automatic
ally esc
ape the presumptionagainst pre-emption.” ibid. (slip op., at 2–3); id., at ___ (slip op., at 3) (“where the text of a pre-emption c
lause isopen to more than one plausible reading, c
ourts ordinarily ‘ac
c
ept the reading that disfavors pre-emption’” (quoting bates, supra, at 449)). in ac
c
ordanc
e with the presumption, the dissent would have found the state-law c
laims under review to fall beyond the reac
h of the mda’s express pre-emption provision. 552 u. s., at ___ (slip op., at ___); see also id., at ___, n. 8 (slip op., at 6, n. 8); id., at ___,
n. 9 (slip op., at 7, n. 9) (rejec
ting the majority’s c
onstruc
tion of §360(d) bec
ause “the presumption against preemption [is] operative even in c
onstruing a preemption c
lause”). given the dissent’s c
lear c
all for the use of the presumption against pre-emption, the c
ourt’s dec
ision not to invoke it was nec
essarily a rejec
tion of any role for the presumption in c
onstruing the statute.
justic
e stevens
also dec
lined to invoke the presumption in his opinion. id., at ___ (opinion c
onc
urring in partand c
onc
urring in judgment). in his view, the “signific
anc
e of the pre-emption provision in the [mda] was not fully apprec
iated until many years after it was enac
ted” and, therefore, it is “a statute whose text and general objec
tive c
over territory not ac
tually envisioned by its authors.” id., at ___ (slip op., at 1). but justic
e stevens
’ opinion in riegel—unlike the majority opinion here, the plurality opinion in c
ipollone, and the dissenting opinionin riegel—did not invoke the presumption to bend the text of the statute to meet the perc
eived purpose of c
ongress. 13 c
ite as: 555 u. s. ____ (2008) thomas
, j., dissenting
instead, justic
e stevens
c
orrec
tly found that “‘it is ultimately the provisions of our laws rather than theprinc

ipal c
onc
erns of our legislators by whic
h we are governed.’” 552 u. s., at ___ (slip op., at 1) (quoting onc
ale v. sundowner offshore servic
es, inc

., 523 u. s. 75, 79–80 (1998)).
in light of riegel, there is no authority for invoking thepresumption against pre-emption in express pre-emption c
ases. the majority here thus turns to lohr to revive the presumption and, in turn, to justify its restric
tive readingof the labeling ac
t’s express pre-emption provision. but, as riegel plainly shows, the c
ourt is no longer willing to unreasonably interpret expressly pre-emptive federal laws in the name of “‘c
ongressional purpose,’” ante, at 14, or bec
ause “c
ongress has legislated in a field traditionally oc
c
upied by the states,” ante, at 5. the text of the statute must c
ontrol.
riegel also undermined c
ipollone in an even more fundamental way: it c
onc
lusively dec
ided that a c
ommon-law c
ause of ac
tion imposes a state-law “‘requiremen[t]’” thatmay be pre-empted by federal law. 552 u. s., at ___ (slipop., at 11) (“absent other indic
ation, referenc
e to a state’s‘requirements’ inc

ludes its c
ommon-law duties . . . . indeed, one would think that tort law, applied by juriesunder a negligenc
e or stric
t-liability standard, is less deserving of preservation [than regulatory legislation]”). justic
e blac
kmun’s c
ontrary interpretation of §5(b) of the labeling ac
t in c
ipollone, 505 u. s., at 538–539 (opinionc
onc
urring in part, c
onc
urring in judgment in part, anddissenting in part), whic
h provided the votes nec
essary forthe judgment, thus is no longer tenable. in light of riegel’s rejec
tion of the presumption against pre-emptionrelied on by the plurality, as well as the definition of “requirements” relied on in justic
e blac
kmun’s c
onc
urring opinion, c
ipollone’s approac
h to express pre-emption is nothing more than “a remnant of abandoned doc
trine.” 14 altria group
, inc

. v. good
thomas
, j., dissenting
planned parenthood of southeastern pa. v. c
asey, 505
u. s. 833, 855 (1992).
c
the c
ipollone plurality’s reading of §5(b) of the labelingac
t was further undermined by this c
ourt’s dec
ision in reilly, 533 u. s. 525. there, the c
ourt c
onfronted regulations imposed by the massac
husetts attorney general on the loc
ation of tobac
c
o advertising pursuant to the c
ommonwealth’s unfair trade prac
tic
es statute. id., at 533–
536. the c
ourt found the regulations—to the extent theyapplied to c
igarettes—expressly pre-empted bec
ause, although massac
husetts remained free to enac
t “generallyapplic
able zoning restric
tions,” its imposition of “spec
ialrequirements or prohibitions ‘based on smoking and health’ ‘with respec
t to the advertising or promotion of c
igarettes’” fell within the ambit of §5(b)’s pre-emptive sweep. id., at 551.
reilly did not ignore c
ipollone. it c
ited the pluralityopinion extensively in its disc
ussion of the basic
history and text of the labeling ac
t. 533 u. s., at 540–546. but in analyzing whether the regulations enac
ted by the massac
husetts attorney general were expressly pre-empted,the c
ourt was silent about c
ipollone. 533 u. s., at 546–
551. unlike the distric
t c
ourt, whic
h saw “the c
entral question for purposes of pre-emption [as] whether theregulations c
reate[d] a predic
ate legal duty based on smoking and health,” id., at 537, the c
ourt’s substantive examination of the regulations under §5(b) inc

luded no mention of the c
ipollone plurality’s “predic
ate duty” test. see 533 u. s., at 546–551. instead, the c
ourt disagreed with “the attorney general’s narrow c
onstruc
tion” of the statute’s “‘based on smoking and health’” language, and c
onc
luded that the regulations were pre-empted bec
ause they were “motivated by” and “intertwined with” thec
onc
erns about smoking and health. id., at 547–548. 15 c
ite as: 555 u. s. ____ (2008) thomas
, j., dissenting
reilly, therefore, c
annot be rec
onc
iled with the c
ipolloneplurality’s interpretation of §5(b) of the labeling ac
t. the regulations at issue in reilly were enac
ted to implement a massac
husetts state law imposing a duty against unfair and dec
eptive trade prac
tic
es—the same predic
ate dutyasserted under the mutpa in this c
ase. 533 u. s., at 533. the state-law duty at issue in reilly was no less generalthan the state-law duty at issue in this c
ase or the statelaw fraud c
laims c
onfronted in c
ipollone. c
ompare mass. gen. laws, c
h. 93a, §2(a) (west 1996) (“unfair methods of c
ompetition and unfair or dec
eptive ac
ts or prac
tic
es in the c
onduc
t of any trade or c
ommerc
e are hereby dec
laredunlawful”), with me. rev. stat. ann., tit. 5, §207 (supp.2008) (“unfair methods of c
ompetition and unfair or dec
eptive ac
ts or prac
tic
es in the c
onduc
t of any trade or c
ommerc
e are dec
lared unlawful”), and c
ipollone, supra, at 528 (explaining that the “predic
ate” of the plaintiff’sfraudulent misrepresentation c
laim was “a state-law duty not to make false statements of material fac
t or to c
onc
eal suc
h fac
ts”). faithful applic
ation of the c
ipollone pluralityopinion, therefore, would have required the c
ourt in reilly to uphold the regulations. indeed, justic
e stevens
argued as muc
h in his dissent. 533 u. s., at 597 (noting that “[n]ary a word in any of the three c
ipollone opinionssupports the thesis that §5 should be interpreted to preempt state regulation of the loc
ation of signs advertising c
igarettes”).
and yet, the majority today finds that reilly and c
ipollone are perfec
tly c
ompatible. it c
ontends that, although the regulations in question in reilly “derived from a general dec
eptive prac
tic
es statute like the one at issue in thisc
ase,” they were pre-empted bec
ause they “targeted advertising that tended to promote tobac
c
o use by c
hildreninstead of prohibiting false or misleading statements.” ante, at 12. ac
c
ording to the majority, that legal dutyc
ontrasts with the regulations here, as “[t]he mutpa says 16 altria group
, inc

. v. good
thomas
, j., dissenting
nothing about either ‘smoking’ or ‘health.’” ante, at 13; see also ante, at 10. but the c
ipollone plurality expressly rejec
ted any distinc

tion between targeted regulations likethose in reilly and general duties imposed by the c
ommonlaw. 505 u. s., at 522. in fac
t, the general duties underlying the failure-to-warn and warning-neutralization c
laims in c
ipollone—whic
h the plurality found to be preempted—say nothing about smoking and health. id., at 524; see also id., at 553 (scalia
, j., c
onc
urring in judgment in part and dissenting in part) (noting that the duty to warn about a produc
t’s dangers was not “spec
ific
allyc
rafted with an eye toward ‘smoking and health’”).
ac
c
ordingly, reilly is better understood as establishing that even a general duty c
an impose requirements or prohibitions based on smoking and health. reilly weakened the forc
e of the c
ipollone plurality’s “predic
ate duty”approac
h to the pre-emptive effec
t of §5(b) and c
ast doubt on its c
ontinuing utility.
d
finally, the c
ipollone plurality’s approac
h should bedisc
arded bec
ause its “predic
ate duty” approac
h is unpersuasive as an initial matter. in c
onsidering the warningneutralization c
laim, for example, the c
ipollone pluralityasserted that the c
laim is predic
ated on a state-law prohibition against minimizing the health risks assoc
iated with smoking. 505 u. s., at 527. the c
ourt today reaffirms this view. ante, at 10; see also ante, at 13 (desc
ribing §5(b)as expressly pre-empting “rules . . . that are based on smoking and health”). but every produc
ts liability ac
tion,inc

luding a failure-to-warn ac
tion, applies generally to all produc
ts. see c
ipollone, supra, at 553 (opinion of scalia
, j.). thus, the “duty” or “rule” involved in a failure-to-warnc
laim is no more spec
ific
to smoking and health than is a c
ommon-law fraud c
laim based on the “duty” or “rule” notto use dec
eptive or misleading trade prac
tic
es. yet only 17 c
ite as: 555 u. s. ____ (2008)
thomas
, j., dissenting
for the latter was the c
ipollone plurality c
ontent to ignorethe c
ontext in whic
h the c
laim is asserted. this shiftinglevel of generality was identified as a logic
al weakness inthe original c
ipollone plurality dec
ision by a majority ofthe c
ourt, 505 u. s., at 543 (blac
kmun, j., c
onc
urring inpart, c
onc
urring in judgment in part, and dissenting in part); id., at 553–554 (opinion of scalia
, j.), and it remains equally unc
onvinc

ing today.
it is therefore unsurprising that the c
ourt’s defense ofthe plurality’s c
onfusing test is c
onfined to one sentenc
eand a footnote. see ante, at 13–14 (“while we again ac
knowledge that our analysis of these c
laims may lac
k ‘theoretic
al eleganc
e,’ we remain persuaded that it represents ‘a fair understanding of c
ongressional purpose’” (quoting c
ipollone, supra, at 529–530, n. 27)); ante, at 10,
n. 7. the majority instead argues that this approac
h “failsto explain why c
ongress would . . . permi[t] c
igarettemanufac
turers to engage in fraudulent advertising.” ante, at 10, n. 7. but no explanation is nec
essary; the text speaks for itself. c
ongress has pre-empted only thosec
laims that would impose “requirement[s] or prohibition[s] based on smoking and health.” 15 u. s. c
. §1334(b).thus, if c
igarette manufac
turers were to falsely advertisetheir produc
ts as “americ
an-made,” or “the offic
ial c
igarette of major league baseball,” state-law c
laims arising from that wrongful behavior would not be pre-empted.
furthermore, c
ontrary to the majority’s polic
y arguments, faithful applic
ation of the statutory language doesnot authorize fraudulent advertising with respec
t to smoking and health.3 any misleading promotional statements
—————— 3the majority’s polic
y-based attac
k c
ould just as easily be leveled against its own determination that the labeling ac
t pre-empts failureto-warn c
laims. but just as there is no basis in fac
t or law to c
ontendthat the labeling ac
t enc
ourages the marketing of hazardous produc
ts without adequate warning labels, ante, at 10, n. 8, there is no basis to c
ontend that the text of the labeling ac
t permits fraudulent 18 altria group
, inc

. v. good thomas
, j., dissenting
for c
igarettes remain subjec
t to federal regulatory oversight under the labeling ac
t. see §1336. the relevant question thus is not whether “petitioners will be prohibited from selling as ‘light’ or ‘low tar’ only those c
igarettes that are not ac
tually light and do not ac
tually deliver lesstar and nic
otine.” ante, at 12, n. 10. rather, the issue is whether the labeling ac
t allows regulators and juries todec
ide, on a state-by-state basis, whether petitioners’ lightand low-tar desc
riptors were in fac
t fraudulent, or insteadwhether §5(b) c
harged the federal government withreac
hing a c
omprehensive judgment with respec
t to this question.
c
ongress c
hose a uniform federal standard. under the labeling ac
t, c
ongress “establish[ed] a c
omprehensivefederal program to deal with c
igarette labeling and advertising,” 15 u. s. c
. §1331, so that “c
ommerc
e and the national ec
onomy may . . . not [be] impeded by diverse, nonuniform, and c
onfusing c
igarette labeling and advertising regulations with respec
t to any relationship between smoking and health,” §1331(2)(b).4 the majority’s distorted interpretation of §5(b) defeats this express c
ongressional purpose, opening the door to an untold number ofdec
eptive-prac
tic
es lawsuits ac
ross the c
ountry. the question whether marketing a light c
igarette is “ ‘misrepresentative’” in light of c
ompensatory behavior “wouldalmost c
ertainly be answered differently from state tostate.” c
ipollone, supra, 505 u. s., at 553 (opinion of
—————— advertising. 4the majority c
ontends that the relatively c
onstrained enforc
ementpower of the federal trade c
ommission (ftc
) in 1970 undermines anyargument that c
ongress intended the labeling ac
t to prevent statesfrom regulating dec
eptive advertising and marketing of c
igarettes. ante, at 8, n. 6. i am unwilling to rely on the majority’s perc
eption of the relative power of the ftc
in 1970 to ignore c
ongress’ stated purpose in enac
ting the labeling ac
t and the plain meaning of the ac
t’sexpress pre-emption provision. 19 c
ite as: 555 u. s. ____ (2008)
thomas
, j., dissenting
scalia
, j.). this will inevitably result in the nonuniformimposition of liability for the marketing of light and/or low-tar c
igarettes—the prec
ise problem that c
ongress intended §5(b) to remedy.
in light of these serious flaws in the majority’s approac
h, even if the c
ipollone plurality opinion were binding prec
edent, the c
ourt “should not hesitate to allow ourprec
edent to yield to the true meaning of an ac
t of c
ongress when our statutory prec
edent is ‘unworkable’ or‘badly reasoned.’” c
lark v. martinez, 543 u. s. 371, 402 (2005) (thomas
, j., dissenting) (quoting holder v. hall, 512 u. s. 874, 936 (1994) (thomas
, j., c
onc
urring in judgment), in turn quoting payne, 501 u. s., at 827 (some internal quotation marks omitted)). where, as here, there is “c
onfusion following a splintered dec
ision,” that “is itself a reason for reexamining that dec
ision.” nic
hols v. united states, 511 u. s. 738, 746 (1994). when a dec
ision of this c
ourt has failed to properly interpret a statute, we shouldnot “plac
e on the shoulders of c
ongress the burden of thec
ourt’s own error.” girouard v. united states, 328 u. s. 61, 69–70 (1946).5
iii applying the proper test—i.e., whether a jury verdic
t onrespondents’ c
laims would “impos[e] an obligation” on the c
igarette manufac
turer “bec
ause of the effec
t of smoking upon health,” c
ipollone, supra, at 554 (scalia
, j., c
onc
urring in judgment in part and dissenting in part), respondents’ state-law c
laims are expressly pre-empted by §5(b)
—————— 5 the united states, in its amic
us brief and at oral argument, c
onspic
uously dec
lined to address express pre-emption or defend the c
ipollone opinion’s reasoning. see brief for united states as amic
us c
uriae 14–33. instead, it addressed only the question of implied preemption, an issue i do not reac
h bec
ause of my resolution of the question on express pre-emption. 20 altria group
, inc

. v. good
thomas
, j., dissenting
of the labeling ac
t. respondents, longtime smokers of marlboro lights, c
laim that they have suffered an injury as a result of petitioners’ dec
ision to advertise these c
igarettes as “light” and/or “low-tar and low nic
otine produc
ts.” 436 f. supp. 2d, at 144–145. they c
laim that petitionersmarketed their c
igarettes as “light” and/or “low-tar andlow-nic
otine produc
ts” despite knowledge that lightc
igarette smokers would engage in c
ompensatory behavior c
ausing them to inhale at least as muc
h tar and nic
otine as smokers of regular c
igarettes. ibid. respondents thusallege that they were misled into thinking that they weregaining a health advantage by smoking the light c
igarettes, ibid., and, as a result, petitioners’ c
onduc
t was an“unfair or dec
eptive ac
t or prac
tic
e” under the mutpa.me. rev. stat. ann., tit. 5, §207; 436 f. supp. 2d, at 133.
respondents’ c
laims seek to impose liability on petitioners bec
ause of the effec
t that smoking light c
igarettes had on their health. the alleged misrepresentation here—that “light” and “low-tar” c
igarettes are not as healthy as advertised—is ac
tionable only bec
ause of the effec
t that smoking light and low-tar c
igarettes had on respondents’ health. otherwise, any alleged misrepresentation aboutthe effec
t of the c
igarettes on health would be immaterial for purposes of the mutpa and would not be the sourc
e ofthe injuries that provided the impetus for the c
lass-ac
tion lawsuit. see state v. weinsc
henk, 2005 me 28, ¶17, 868
a. 2d 200, 206 (“an ac
t or prac
tic
e is dec
eptive [under the mutpa] if it is a material representation, omission, ac
t orprac
tic
e that is likely to mislead c
onsumers ac
ting reasonably under the c
irc
umstanc
es” (emphasis added)).therefore, with this suit, respondents seek to require the c
igarette manufac
turers to provide additional warningsabout c
ompensatory behavior, or to prohibit them from selling these produc
ts with the “light” or “low-tar” desc
riptors. this is exac
tly the type of lawsuit that is pre-empted by the labeling ac
t. c
f. rowe, 552 u. s., at ___ (slip op., 21 c
ite as: 555 u. s. ____ (2008) thomas
, j., dissenting
at 6) (finding pre-emption of a maine regulation of shipping of tobac
c
o produc
ts where “[t]he maine law . . . produc
es the very effec
t that the federal law sought to avoid”).
bec
ause the proper test for pre-emption is to look at thefac
tual basis of a c
omplaint to determine if a c
laim imposes a requirement based on smoking and health, there isno meaningful distinc

tion to be drawn in this c
ase betweenc
ommon-law failure-to-warn c
laims and c
laims under the mutpa.6 as the majority readily admits, both types ofc
laims impose duties with respec
t to the same c
onduc
t— i.e., the marketing of “light,” “low-tar,” and “low-nic
otine” c
igarettes. see ante, at 11, n. 9. if the c
laims arise from identic
al c
onduc
t, the c
laims impose the same requirementor prohibition with respec
t to that c
onduc
t. and when that allegedly wrongful c
onduc
t involves misleadingstatements about the health effec
ts of smoking a partic
ular brand of c
igarette, the liability and resulting requirement or prohibition are, by definition, based on smoking and health.
finally, at oral argument, respondents argued that theirc
laims do not impose requirements based on smoking and health bec
ause the damages they seek to rec
over are not ——————
6the majority’s observation that no warning-neutralization c
laim is at issue in this c
ase, ante, at 11 n. 9, misses the point. the princ

ipal weakness in the c
ipollone plurality’s logic
is not its distinc

tion between c
laims for warning neutralization and c
laims for fraud. it is the fac
t that the predic
ate duty underlying new jersey’s produc
ts liability law,from whic
h the majority now c
laims the warning-neutralization c
laimderived, see ante, at 11, n. 8, was no more spec
ific
to smoking andhealth than the predic
ate duty underlying the fraud c
laim, see c
ipollone, 505 u. s., at 552–553 (opinion of scalia
, j.) (“eac
h duty transc
ends the relationship between the c
igarette c
ompanies and c
igarette smokers; neither duty was spec
ific
ally c
rafted with an eye toward ‘smoking and health’ ”); id., at 543 (opinion of blac
kmun, j.); see also supra, at 16. thus, the produc
ts-liability and the fraud c
laims muststand or fall together. the majority’s refusal to address the logic
alinc

onsistenc
y of its approac
h remains as glaring today as it was in c
ipollone. 22 altria group
, inc

. v. good thomas
, j., dissenting
based on the effec
t of smoking on their health; rather,respondents are “asking . . . for the differenc
e in valuebetween a produc
t [they] thought [they] were buying and aproduc
t [they] ac
tually bought.” tr. of oral arg. 29. but the requirement or prohibition c
overed by §5(b) is c
reatedby the imposition of liability for partic
ular c
onduc
t—here, the way in whic
h petitioners marketed “light” and “lowtar,” and “low-nic
otine” c
igarettes—not by the manner in whic
h respondents have c
hosen to measure their damages. no matter how respondents c
harac
terize their damages c
laim, they have not been injured for purposes of the mutpa, and thus c
annot rec
over, unless their dec
ision to purc
hase the c
igarettes had a negative effec
t on theirhealth.
in any event, respondents sought “suc
h injunc
tive relief as may be appropriate” in this c
ase. app. 42a. the mutpa spec
ific
ally authorizes “other equitable relief, inc

luding an injunc
tion,” to remedy unfair or dec
eptivetrade prac
tic
es. me. rev. stat. ann., tit. 5, §213(1) (west 2002). and a c
ourt-c
rafted injunc
tion prohibiting petitioners from marketing light c
igarettes would be no less a requirement or prohibition than the regulations found tobe pre-empted in reilly. in the end, no matter what form the remedy takes, the liability with respec
t to the spec
ific
c
laim still c
reates the requirement or prohibition. when that liability is nec
essarily premised on the effec
ts of smoking on health, as respondents’ c
laims are here, the c
ivil ac
tion is pre-empted by §5(b) of the labeling ac
t.
iv the c
ourt today elec
ts to c
onvert the c
ipollone plurality opinion into binding law, notwithstanding its weakened doc
trinal foundation, its atextual c
onstruc
tion of the statute, and the lower c
ourts’ inability to apply its methodology. the resulting c
onfusion about the nature of ac
laim’s “predic
ate duty” and inevitable disagreement in 23 c
ite as: 555 u. s. ____ (2008) thomas
, j., dissenting
the lower c
ourts as to what type of representations are “material” and “misleading” will have the perverse effec
t of inc

reasing the nonuniformity of state regulation ofc
igarette advertising, the exac
t problem that c
ongress intended §5(b) to remedy. it may even forc
e us to yet again revisit the c
ourt’s interpretation of the labelingac
t. bec
ause i believe that respondents’ c
laims are preempted under §5(b) of the labeling ac
t, i respec
tfullydissent.









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