Altria Group, Inc. v. Good, 555 U. S. ____ (2008)

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Petitioners argue in the alternative that we should reject the express pre-emption framework established by the Cipollone plurality and relied on by the Court in Reilly. In so doing, they invoke the reasons set forth in the separate opinions of Justice Blackmun (who especially criticized the plurality’s holding that the failure-to-warn claim was pre-empted) and Justice Scalia (who argued that the fraud claim also should be pre-empted). While we again acknowledge that our analysis of these claims may lack “theoretical elegance,” we remain persuaded that it represents “a fair understanding of congressional purpose.” Cipollone,505 U. S., at 529–530, n. 27 (plurality opinion).
Petitioners also contend that the plurality opinion is inconsistent with our decisions in American Airlines, Inc. v. Wolens, 513 U. S. 219 (1995) , and Riegel v. Medtronic, Inc., 552 U. S. ___ (2008). Both cases, however, are inapposite—the first because it involved a pre-emption provision much broader than the Labeling Act’s, and the second because it involved precisely the type of state rule that Congress had intended to pre-empt.
At issue in Wolens was the pre-emptive effect of the Airline Deregulation Act of 1978 (ADA), 49 U. S. C. App. §1305(a)(1) (1988 ed.), which prohibits States from enacting or enforcing any law “relating to rates, routes, or services of any air carrier.” The plaintiffs in that case sought to bring a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill. Comp. Stat., ch. 815, §505 (West 1992). Our conclusion that the state-law claim was pre-empted turned on the unusual breadth of the ADA’s pre-emption provision. We had previously held that the meaning of the key phrase in the ADA’s pre-emption provision, “ ‘relating to rates, routes, or services,’ ” is a broad one. Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383–384 (1992) (emphasis added). Relying on precedents construing the pre-emptive effect of the same phrase in the Employee Retirement Income Security Act of 1974, 29 U. S. C. §1144(a), we concluded that the phrase “relating to” indicates Congress’ intent to pre-empt a large area of state law to further its purpose of deregulating the airline industry. 504 U. S., at 383–384. 12 Unquestionably, the phrase “relating to” has a broader scope than the Labeling Act’s reference to rules “based on” smoking and health; whereas “relating to” is synonymous with “having a connection with,” id., at 384, “based on” describes a more direct relationship, see Safeco Ins. Co. of America v. Burr, 551 U. S. ___, ___ (2007) (slip op., at 13) (“In common talk, the phrase ‘based on’ indicates a but-for causal relationship and thus a necessary logical condition”).
Petitioners’ reliance on Riegel is similarly misplaced. The plaintiffs in Riegel sought to bring common-law design, manufacturing, and labeling defect claims against the manufacturer of a faulty catheter. The case presented the question whether those claims were expressly pre-empted by the Medical Device Amendments of 1976 (MDA), 21 U. S. C. §360c et seq. The MDA’s pre-emption clause provides that no State “ ‘may establish or continue in effect with respect to a device … any requirement’ relating to safety or effectiveness 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 catheter at issue in Riegel had received premarket approval from the Food and Drug Administration (FDA). We concluded that premarket approval imposes “requirement[s] relating to safety [and] effectiveness” because the FDA requires a device that has received premarket approval to be made with almost no design, manufacturing, or labeling deviations from the specifications in its approved application. The plaintiffs’ products liability claims fell within the core of the MDA’s pre-emption provision because they sought to impose different requirements on precisely those aspects of the device that the FDA had approved. Unlike the Cipollone plaintiff’s fraud claim, which fell outside of the Labeling Act’s pre-emptive reach because it did not seek to impose a prohibition “based on smoking and health,” the Riegel plaintiffs’ common-law products liability claims unquestionably sought to enforce “requirement[s] relating to safety or effectiveness” under the MDA. That the “relating to” language of the MDA’s pre-emption provision is, like the ADA’s, much broader than the operative language of the Labeling Act provides an additional basis for distinguishing Riegel. Thus, contrary to petitioners’ suggestion, Riegel is entirely consistent with our holding in Cipollone.
In sum, we conclude now, as the plurality did in Cipollone, that “the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent statements.” 505 U. S., at 529.
IV
As an alternative to their express pre-emption argument, petitioners contend that respondents’ claim is impliedly pre-empted because, if allowed to proceed, it would present an obstacle to a longstanding policy of the FTC. According to petitioners, the FTC has for decades promoted the development and consumption of low tar cigarettes and has encouraged consumers to rely on representations of tar and nicotine content based on Cambridge Filter Method testing in choosing among cigarette brands. Even if such a regulatory policy could provide a basis for obstacle pre-emption, petitioners’ description of the FTC’s actions in this regard are inaccurate. The Government itself disavows any policy authorizing the use of “light” and “low tar” descriptors. Brief for United States as Amicus Curiae 16–33.
In 1966, following the publication of the Surgeon General’s report on smoking and health, the FTC issued an industry guidance stating its view that “a factual statement of the tar and nicotine content (expressed in milligrams) of the mainstream smoke from a cigarette,” as measured by Cambridge Filter Method testing, would not violate the FTC Act. App. 478a. The Commission made clear, however, that the guidance applied only to factual assertions of tar and nicotine yields and did not invite “collateral representations … made, expressly or by implication, as to reduction or elimination of health hazards.” Id., at 479a. A year later, the FTC reiterated its position in a letter to the National Association of Broadcasters. The letter explained that, as a “general rule,” the Commission would not challenge statements of tar and nicotine content when “they are shown to be accurate and fully substantiated by tests conducted in accordance with the [Cambridge Filter Method].” Id., at 368a. In 1970, the FTC considered providing further guidance, proposing a rule that would have required manufacturers to disclose tar and nicotine yields as measured by Cambridge Filter Method testing. 35 Fed. Reg. 12671. The leading cigarette manufacturers responded by submitting a voluntary agreement under which they would disclose tar and nicotine content in their advertising, App. 899a–900a, and the FTC suspended its rulemaking, 36Fed. Reg. 784 (1971).
Based on these events, petitioners assert that “the FTC has required tobacco companies to disclose tar and nicotine yields in cigarette advertising using a government-mandated testing methodology and has authorized them to use descriptors as shorthand references to those numerical test results.” Brief for Petitioners 2 (emphasis in original). As the foregoing history shows, however, the FTC has in fact never required that cigarette manufacturers disclose tar and nicotine yields, nor has it condoned representations of those yields through the use of “light” or “low tar” descriptors.
Subsequent Commission actions further undermine petitioners’ claim. After the tobacco companies agreed to report tar and nicotine yields as measured by the Cambridge Filter Method, the FTC continued to police cigarette companies’ misleading use of test results. In 1983, the FTC responded to findings that tar and nicotine yields for Barclay cigarettes obtained through Cambridge Filter Method testing were deceptive because the cigarettes in fact delivered disproportionately more tar to smokers than other cigarettes with similar Cambridge Filter Method ratings. 48 Fed. Reg. 15954. And in 1995, the FTC found that a manufacturer’s representation “that consumers will get less tar by smoking ten packs of Carlton brand cigarettes than by smoking a single pack of the other brands” was deceptive even though it was based on the results of Cambridge Filter Method testing. In re American Tobacco Co., 119 F. T. C. 3, 4. The FTC’s conclusion was based on its recognition that, “[i]n truth and in fact, consumers will not necessarily get less tar” due to “such behavior as compensatory smoking.” Ibid.13
This history shows that, contrary to petitioners’ suggestion, the FTC has no longstanding policy authorizing collateral representations based on Cambridge Filter Method test results. Rather, the FTC has endeavored to inform consumers of the comparative tar and nicotine content of different cigarette brands and has in some instances prevented misleading representations of Cambridge Filter Method test results. The FTC’s failure to require petitioners to correct their allegedly misleading use of “light” descriptors is not evidence to the contrary; agency nonenforcement of a federal statute is not the same as a policy of approval. Cf. Sprietsma v. Mercury Marine, 537 U. S. 51 (2002) (holding that the Coast Guard’s decision not to regulate propeller guards did not impliedly pre-empt petitioner’s tort claims).14
More telling are the FTC’s recent statements regarding the use of “light” and “low tar” descriptors. In 1997, the Commission observed that “[t]here are no official definitions for” the terms “light” and “low tar,” and it sought comments on whether “there [is] a need for official guidance with respect to the terms” and whether “the descriptors convey implied health claims.” 62 Fed. Reg. 48163. In November 2008, following public notice and comment, the Commission rescinded its 1966 guidance concerning the Cambridge Filter Method. 73 Fed. Reg. 74500. The rescission is a response to “a consensus among the public health and scientific communities that the Cambridge Filter method is sufficiently flawed that statements of tar and nicotine yields as measured by that method are not likely to help consumers make informed decisions.” Id., at 74503. The Commission’s notice of its proposal to rescind the guidance also reiterated the original limits of that guidance, noting that it “only addresse[d] simple factual statements of tar and nicotine yields. It d[id] not apply to other conduct or express or implied representations, even if they concern[ed] tar and nicotine yields.” Id., at 40351.
In short, neither the handful of industry guidances and consent orders on which petitioners rely nor the FTC’s inaction with regard to “light” descriptors even arguably justifies the pre-emption of state deceptive practices rules like the MUTPA.
V
We conclude, as we did in Cipollone, that the Labeling Act does not pre-empt state-law claims like respondents’ that are predicated on the duty not to deceive. We also hold that the FTC’s various decisions with respect to statements of tar and nicotine content do not impliedly pre-empt respondents’ claim. Respondents still must prove that petitioners’ use of “light” and “lowered tar” descriptors in fact violated the state deceptive practices statute, but neither the Labeling Act’s pre-emption provision nor the FTC’s actions in this field prevent a jury from considering that claim. Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

Thomas, J., dissenting
SUPREME COURT OF THE UNITED STATES
ALTRIA GROUP, INC., et al., PETITIONERS v.
STEPHANIE GOOD et al.
on writ of certiorari to the united states court of appeals for the first circuit

[December 15, 2008]

Justice Thomas, with whom The Chief Justice, Justice Scalia, and Justice Alito join, dissenting. This appeal requires the Court to revisit its decision in Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992) . As in that case, the question before us is whether state-law claims alleging that cigarette manufacturers misled the public about the health effects of cigarettes are pre-empted by the Federal Cigarette Labeling and Advertising Act, as amended in 1969 (Labeling Act or Act). The Labeling Act requires that specific health warnings be placed on all cigarette packaging and advertising, 15 U. S. C. §1333, in order to eliminate “diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health,” §1331. To that end, §5(b) of the Labeling Act pre-empts any “requirement or prohibition based on smoking and health … imposed under State law with respect to the advertising or promotion of any cigarettes.” §1334(b).
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