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

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C
The Cipollone plurality’s reading of §5(b) of the Labeling Act was further undermined by this Court’s decision in Reilly, 533 U. S. 525 . There, the Court confronted regulations imposed by the Massachusetts attorney general on the location of tobacco advertising pursuant to the Commonwealth’s unfair trade practices statute. Id., at 533–536. The Court found the regulations—to the extent they applied to cigarettes—expressly pre-empted because, although Massachusetts remained free to enact “generally applicable zoning restrictions,” its imposition of “special requirements or prohibitions ‘based on smoking and health’ ‘with respect to the advertising or promotion of cigarettes’ ” fell within the ambit of §5(b)’s pre-emptive sweep. Id., at 551.
Reilly did not ignore Cipollone. It cited the plurality opinion extensively in its discussion of the basic history and text of the Labeling Act. 533 U. S.,at 540–546. But in analyzing whether the regulations enacted by the Massachusetts attorney general were expressly pre-empted, the Court was silent about Cipollone. 533 U. S., at 546–551.Unlike the District Court, which saw “the central question for purposes of pre-emption [as] whether the regulations create[d] a predicate legal duty based on smoking and health,” id., at 537, the Court’ssubstantive examination of the regulations under §5(b) included no mention of the Cipollone plurality’s “predicate duty” test. See 533 U. S., at 546–551. Instead, the Court disagreed with “the Attorney General’s narrow construction” of the statute’s “ ‘based on smoking and health’ ” language, and concluded that the regulations were pre-empted because they were “motivated by” and “intertwined with” the concerns about smoking and health. Id., at 547–548.
Reilly, therefore, cannot be reconciled with the Cipollone plurality’s interpretation of §5(b) of the Labeling Act. The regulations at issue in Reilly were enacted to implement a Massachusetts state law imposing a duty against unfair and deceptive trade practices—the same predicate duty asserted under the MUTPA in this case. 533 U. S., at 533. The state-law duty at issue in Reilly was no less general than the state-law duty at issue in this case or the state-law fraud claims confronted in Cipollone. CompareMass. Gen. Laws, ch. 93A, §2(a) (West 1996) (“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful”), with Me. Rev. Stat. Ann., Tit. 5, §207 (Supp. 2008) (“Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful”), and Cipollone, supra, at 528 (explaining that the “predicate” of the plaintiff’s fraudulent misrepresentation claim was “a state-law duty not to make false statements of material fact or to conceal such facts”). Faithful application of the Cipollone plurality opinion, therefore, would have required the Court in Reilly to uphold the regulations. Indeed, Justice Stevens argued as much in his dissent. 533 U. S., at 597 (noting that “[n]ary a word in any of the three Cipollone opinions supports the thesis that §5 should be interpreted to pre-empt state regulation of the location of signs advertising cigarettes”).
And yet, the majority today finds that Reilly and Cipollone are perfectly compatible. It contends that, although the regulations in question in Reilly “derived from a general deceptive practices statute like the one at issue in this case,” they were pre-empted because they “targeted advertising that tended to promote tobacco use by children instead of prohibiting false or misleading statements.” Ante, at 12. According to the majority, that legal duty contrasts with the regulations here, as “[t]he MUTPA says nothing about either ‘smoking’ or ‘health.’ ” Ante, at 13; seealso ante, at 10. But the Cipollone plurality expressly rejected any distinction between targeted regulations like those in Reilly and general duties imposed by the common law. 505 U. S., at 522. In fact, the general duties underlying the failure-to-warn and warning-neutralization claims in Cipollone—which the plurality found to be pre-empted—say nothing about smoking and health. Id.,at 524; see also id., at 553 (Scalia, J., concurring in judgment in part and dissenting in part) (noting that the duty to warn about a product’s dangers was not “specifically crafted with an eye toward ‘smoking and health’ ”).
Accordingly, Reilly is better understood as establishing that even a general duty can impose requirements or prohibitions based on smoking and health. Reilly weakened the force of the Cipollone plurality’s “predicate duty” approach to the pre-emptive effect of §5(b) and cast doubt on its continuing utility.
D
Finally, the Cipollone plurality’s approach should be discarded because its “predicate duty” approach is unpersuasive as an initial matter. In considering the warning-neutralization claim, for example, the Cipollone plurality asserted that the claim is predicated on a state-law prohibition against minimizing the health risks associated with smoking. 505 U. S., at 527. The Court today reaffirms this view. Ante, at 10; see also ante, at 13 (describing §5(b) as expressly pre-empting “rules … that are based on smoking and health”). But every products liability action, including a failure-to-warn action, applies generally to all products. See Cipollone, supra, at 553 (opinion of Scalia, J.). Thus, the “duty” or “rule” involved in a failure-to-warn claim is no more specific to smoking and health than is a common-law fraud claim based on the “duty” or “rule” not to use deceptive or misleading trade practices. Yet only for the latter was the Cipollone plurality content to ignore the context in which the claim is asserted. This shifting level of generality was identified as a logical weakness in the original Cipollone plurality decision by a majority of the Court, 505 U. S., at 543 (Blackmun, J., concurring in part, concurring in judgment in part, and dissenting in part); id., at 553–554 (opinion of Scalia, J.), and it remains equally unconvincing today.
It is therefore unsurprising that the Court’s defense of the plurality’s confusing test is confined to one sentence and a footnote. See ante, at 13–14 (“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’ ” (quoting Cipollone, supra, at 529–530, n. 27)); ante, at 10, n. 7. The majority instead argues that this approach “fails to explain why Congress would . . . permi[t] cigarette manufacturers to engage in fraudulent advertising.” Ante, at 10, n. 7. But no explanation is necessary; the text speaks for itself. Congress has pre-empted only those claims that would impose “requirement[s] or prohibition[s] based on smoking and health.” 15 U. S. C. §1334(b). Thus, if cigarette manufacturers were to falsely advertise their products as “American-made,” or “the official cigarette of Major League Baseball,” state-law claims arising from that wrongful behavior would not be pre-empted.
Furthermore, contrary to the majority’s policy arguments, faithful application of the statutory language does not authorize fraudulent advertising with respect to smoking and health.17Any misleading promotional statements for cigarettes remain subject to federal regulatory oversight under the Labeling Act. See §1336. The relevant question thus is not whether “petitioners will be prohibited from selling as ‘light’ or ‘low tar’ only those cigarettes that are not actually light and do not actually deliver less tar and nicotine.” Ante, at 12, n. 10. Rather, the issue is whether the Labeling Act allows regulators and juries to decide, on a state-by-state basis, whether petitioners’ light and low-tar descriptors were in fact fraudulent, or instead whether §5(b) charged the Federal Government with reaching a comprehensive judgment with respect to this question.
Congress chose a uniform federal standard. Under the Labeling Act, Congress “establish[ed] a comprehensive Federal Program to deal with cigarette labeling and advertising,” 15 U. S. C. §1331, so that “commerce and the national economy may . . . not [be] impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health,” §1331(2)(B).8The majority’s distorted interpretation of §5(b) defeats this express congressional purpose, opening the door to an untold number of deceptive-practices lawsuits across the country. The question whether marketing a light cigarette is “ ‘misrepresentative’ ” in light of compensatory behavior “would almost certainly be answered differently from State to State.” Cipollone, supra, 505 U. S., at 553 (opinion of Scalia, J.). This will inevitably result in the nonuniform imposition of liability for the marketing of light and/or low-tar cigarettes—the precise problem that Congress intended §5(b) to remedy.
In light of these serious flaws in the majority’s approach, even if the Cipollone plurality opinion were binding precedent, the Court “should not hesitate to allow our precedent to yield to the true meaning of an Act of Congress when our statutory precedent is ‘unworkable’ or ‘badly reasoned.’ ” Clark v. Martinez, 543 U. S. 371, 402 (2005) (Thomas, J., dissenting) (quoting Holder v. Hall, 512 U. S. 874, 936 (1994) (Thomas, J., concurring in judgment), in turn quoting Payne, 501 U. S., at 827 (some internal quotation marks omitted)). Where, as here, there is “confusion following a splintered decision,” that“is itself a reason for reexamining that decision.” Nichols v. United States, 511 U. S. 738, 746 (1994) . When a decision of this Court has failed to properly interpret a statute, we should not “place on the shoulders of Congress the burden of the Court’s own error.” Girouard v. United States, 328 U. S. 61, 69–70 (1946) .19
III
Applying the proper test—i.e.,whether a jury verdict on respondents’ claims would “impos[e] an obligation” on the cigarette manufacturer “because of the effect of smoking upon health,” Cipollone, supra, at 554 (Scalia, J., concurring in judgment in part and dissenting in part), respondents’ state-law claims are expressly pre-empted by §5(b) of the Labeling Act. Respondents, longtime smokers of Marlboro Lights, claim that they have suffered an injury as a result of petitioners’ decision to advertise these cigarettes as “light” and/or “low-tar and low nicotine products.” 436 F. Supp. 2d, at 144–145. They claim that petitioners marketed their cigarettes as “light” and/or “low-tar and low-nicotine products” despite knowledge that light-cigarette smokers would engage in compensatory behavior causing them to inhale at least as much tar and nicotine as smokers of regular cigarettes. Ibid. Respondents thus allege that they were misled into thinking that they were gaining a health advantage by smoking the light cigarettes, ibid., and, as a result, petitioners’ conduct was an “unfair or deceptive act or practice” under the MUTPA. Me. Rev. Stat. Ann., Tit. 5, §207; 436 F. Supp. 2d, at 133.
Respondents’ claims seek to impose liability on petitioners because of the effect that smoking light cigarettes had on their health. The alleged misrepresentation here—that “light” and “low-tar” cigarettes are not as healthy as advertised—is actionable only because of the effect that smoking light and low-tar cigarettes had on respondents’ health. Otherwise, any alleged misrepresentation about the effect of the cigarettes on health would be immaterial for purposes of the MUTPA and would not be the source of the injuries that provided the impetus for the class-action lawsuit. See State v. Weinschenk, 2005 ME 28, ¶17, 868 A. 2d 200, 206 (“An act or practice is deceptive [under the MUTPA] if it is a material representation, omission, act or practice that is likely to mislead consumers acting reasonably under the circumstances” (emphasis added)). Therefore, with this suit, respondents seek to require the cigarette manufacturers to provide additional warnings about compensatory behavior, or to prohibit them from selling these products with the “light” or “low-tar” descriptors. This is exactly the type of lawsuit that is pre-empted by the Labeling Act. Cf. Rowe, 552 U. S., at ___ (slip op., at 6) (finding pre-emption of a Maine regulation of shipping of tobacco products where “[t]he Maine law … produces the very effect that the federal law sought to avoid”).
Because the proper test for pre-emption is to look at the factual basis of a complaint to determine if a claim imposes a requirement based on smoking and health, there is no meaningful distinction to be drawn in this case between common-law failure-to-warn claims and claims under the MUTPA.20As the majority readily admits, both types of claims impose duties with respect to the same conduct—i.e., the marketing of “light,” “low-tar,” and “low-nicotine” cigarettes. See ante, at 11, n. 9. If the claims arise from identical conduct, the claims impose the same requirement or prohibition with respect to that conduct. And when that allegedly wrongful conduct involves misleading statements about the health effects of smoking a particular brand of cigarette, the liability and resulting requirement or prohibition are, by definition, based on smoking and health.
Finally, at oral argument, respondents argued that their claims do not impose requirements based on smoking and health because the damages they seek to recover are not based on the effect of smoking on their health; rather, respondents are “asking … for the difference in value between a product [they] thought [they] were buying and a product [they] actually bought.” Tr. of Oral Arg. 29. But the requirement or prohibition covered by §5(b) is created by the imposition of liability for particular conduct—here, the way in which petitioners marketed “light” and “low-tar,” and “low-nicotine” cigarettes—not by the manner in which respondents have chosen to measure their damages. No matter how respondents characterize their damages claim, they have not been injured for purposes of the MUTPA, and thus cannot recover, unless their decision to purchase the cigarettes had a negative effect on their health.
In any event, respondents sought “such injunctive relief as may be appropriate” in this case. App. 42a. The MUTPA specifically authorizes “other equitable relief, including an injunction,” to remedy unfair or deceptive trade practices. Me. Rev. Stat. Ann., Tit. 5, §213(1) (West 2002). And a court-crafted injunction prohibiting petitioners from marketing light cigarettes would be no less a requirement or prohibition than the regulations found to be pre-empted in Reilly. In the end, no matter what form the remedy takes, the liability with respect to the specific claim still creates the requirement or prohibition. When that liability is necessarily premised on the effects of smoking on health, as respondents’ claims are here, the civil action is pre-empted by §5(b) of the Labeling Act.
IV
The Court today elects to convert the Cipollone plurality opinion into binding law, notwithstanding its weakened doctrinal foundation, its atextual construction of the statute, and the lower courts’ inability to apply its methodology. The resulting confusion about the nature of a claim’s “predicate duty” and inevitable disagreement in the lower courts as to what type of representations are “material” and “misleading” will have the perverse effect of increasing the nonuniformity of state regulation of cigarette advertising, the exact problem that Congress intended §5(b) to remedy. It may even force us to yet again revisit the Court’s interpretation of the Labeling Act. Because I believe that respondents’ claims are pre-empted under §5(b) of the Labeling Act, I respectfully dissent.
The MUTPA provides, as relevant, that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.” §207. In construing that section, courts are to “be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to Section 45(a)(1) of the Federal Trade Commission Act (15 United States Code 45(a)(1)), as from time to time amended.” §207(1).
The Cambridge Filter Method weighs and measures the tar and nicotine collected by a smoking machine that takes 35 milliliter puffs of two seconds’ duration every 60 seconds until the cigarette is smoked to a specified butt length. App. 294a, 668a. As discussed below, the Federal Trade Commission (FTC or Commission) signaled in 1966 that the Cambridge Filter Method was an acceptable means of measuring the tar and nicotine content of cigarettes, but it never required manufacturers to publish test results in their advertisements.
79 Stat. 282.
Pub. L. 91–222, 84 Stat. 87. Though actually enacted in 1970, Congress directed that it be cited as a “1969 Act.”
Comprehensive Smoking Education Act, Pub. L. 98–474, §4(a), 98 Stat. 2201, 15 U. S. C. §1333(a).
Petitioners also urge us to find support for their claim that Congress gave the FTC exclusive authority to police deceptive health-related claims in cigarette advertising in what they refer to as the Labeling Act’s “saving clause.” The clause provides that, apart from the warning requirement, nothing in the Act “shall be construed to limit, restrict, expand, or otherwise affect the authority of the Federal Trade Commission with respect to unfair or deceptive acts or practices in the advertising of cigarettes.” §1336. A plurality of this Court has previously read this clause to “indicat[e] that Congress intended the phrase ‘relating to smoking and health’ … to be construed narrowly, so as not to proscribe the regulation of deceptive advertising.” Cipollone v. Liggett Group, Inc., 505 U. S. 504, 528–529 (1992) . Nothing in the clause suggests that Congress meant to proscribe the States’ historic regulation of deceptive advertising practices. The FTC has long depended on cooperative state regulation to achieve its mission because, although one of the smallest administrative agencies, it is charged with policing an enormous amount of activity. See 1 S. Kanwit, Federal Trade Commission §§1:1, 1:2 (2004 ed. and Supp. 2008). Moreover, when the Labeling Act was amended in 1969 it was not even clear that the FTC possessed rulemaking authority, see 84 Stat. 89, making it highly unlikely that Congress would have intended to assign exclusively to the FTC the substantial task of overseeing deceptive practices in cigarette advertisements.
In his dissent, Justice Thomas criticizes our reliance on the plurality opinion in Cipollone, post, at 6–8, 14–19, 22, and advocates adopting the analysis set forth by Justice Scalia in his opinion concurring in the judgment in part and dissenting in part in that case, post, at 3–6, 19–21. But Justice Scalia’s approach was rejected by seven Members of the Court, and in the almost 17 years since Cipollone was decided Congress has done nothing to indicate its approval of that approach. Moreover, Justice Thomas fails to explain why Congress would have intended the result that Justice Scalia’s approach would produce—namely, permitting cigarette manufacturers to engage in fraudulent advertising. As a majority of the Court concluded in Cipollone, nothing in the Labeling Act’s language or purpose supports that result.
The Cipollone plurality further stated that the warning neutralization claim was “merely the converse of a state-law requirement that warnings be included in advertising and promotional materials,” 505 U. S., at 527, evincing the plurality’s recognition that warning neutralization and failure-to-warn claims are two sides of the same coin. Justice Thomas’ criticism of the plurality’s treatment of the failure-to-warn claim, post, at 16, is beside the point, as no such claim is at issue in this litigation.
As the Court of Appeals observed, respondents’ allegations regarding petitioners’ use of the statements “light” and “lowered tar and nicotine” could also support a warning neutralization claim. But respondents did not bring such a claim, and the fact that they could have does not, as petitioners suggest, elevate form over substance. There is nothing new in the recognition that the same conduct might violate multiple proscriptions.
Justice Thomas contends that respondents’ fraud claim must be pre-empted because “[a] judgment in [their] favor will … result in a ‘requirement’ that petitioners represent the effects of smoking on health in a particular way in their advertising and promotion of light cigarettes.” Post, at 3. He further asserts that “respondents seek to require the cigarette manufacturers to provide additional warnings about compensatory behavior, or to prohibit them from selling these products with the ‘light’ or ‘low-tar’ descriptors.” Post, at 20. But this mischaracterizes the relief respondents seek. If respondents prevail at trial, petitioners will be prohibited from selling as “light” or “low tar” only those cigarettes that are not actually light and do not actually deliver less tar and nicotine. Barring intervening federal regulation, petitioners would remain free to make nonfraudulent use of the “light” and “low-tar” descriptors.
In implementing the MUTPA, neither the state legislature nor the state attorney general has enacted a set of special rules or guidelines targeted at cigarette advertising. As we noted in Cipollone, it was the threatened enactment of new state warning requirements rather than the enforcement of pre-existing general prohibitions against deceptive practices that prompted congressional action in 1969. 505 U. S., at 515, and n. 11.
Petitioners also point to Morales as evidence that our decision in Cipollone was wrong. But Morales predated Cipollone, and it is in any event even more easily distinguishable from this case than American Airlines, Inc. v. Wolens, 513 U. S 219 (1995). At issue in Morales were guidelines regarding the form and substance of airline fare advertising implemented by the National Association of Attorneys General to give content to state deceptive practices rules. 504 U. S., at 379. Like the regulations at issue in Reilly, the guidelines were industry-specific directives that targeted the subject 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 ground carrier regulations were pre-empted by a statute modeled on the ADA).
In a different action, the FTC charged a cigarette manufacturer with violating the FTC Act by misleadingly advertising certain brands as “low in tar” even though they had a higher-than-average tar rating. See In re American Brands, Inc., 79 F. T. C. 255 (1971). The Commission and the manufacturer entered a consent order that prevented the manufacturer from making any such representations unless they were accompanied by a clear and conspicuous disclosure of the cigarettes’ tar and nicotine content as measured by the Cambridge Filter Method. Id., at 258. Petitioners offer this consent order as evidence that the FTC authorized the use of “light” and “low tar” descriptors as long as they accurately describe Cambridge Filter Method test results. As the Government observes, however, the decree only enjoined conduct. Brief for United States as Amicus Curiae 26. And a consent order is in any event only binding on the parties to the agreement. For all of these reasons, the consent order does not support the conclusion that respondents’ claim is impliedly pre-empted.
It seems particularly inappropriate to read a policy of authorization into the FTC’s inaction when that inaction is in part the result of petitioners’ failure to disclose study results showing that Cambridge Filter Method test results do not reflect the amount of tar and nicotine that consumers of “light” cigarettes actually inhale. See id., at 8–11.

Justice Scalia also criticized the plurality for announcing a new rule that the enactment of an express pre-emption clause eliminates any consideration of implied pre-emption. He explained that this new rule created mischief because, when combined with the presumption against pre-emption, it placed a heavy burden of exactitude on Congress when it wishes to say anything about pre-emption. See Cipollone, 505 U. S., at 547–548.
Also, as in Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992) , the fractured decision in Lohr was a source of confusion for the lower courts. See Kemp v. Medtronic, Inc., 231 F. 3d 216, 224 (CA6 2000) (“The various courts of appeals that have confronted issues of preemption arising under the MDA have struggled mightily with Lohr’s language in an effort to discern its holding”); see also Martin v. Medtronic, Inc., 254 F. 3d 573, 579 (CA5 2001) (“Because only parts of Justice Stevens’s opinion commanded a majority, extracting the final meaning of Lohr is no easy task. . . . Although Justice Breyer’s concurrence very specifically disavows the view that common law duties cannot provide substantive requirements for the purpose of preemption, neither his concurrence nor the plurality opinion offers much help to us in developing the point”). The confusion was cleared up in Riegel. See infra, at 11–13.
The majority’s policy-based attack could just as easily be leveled against its own determination that the Labeling Act pre-empts failure-to-warn claims. But just as there is no basis in fact or law to contend that the Labeling Act encourages the marketing of hazardous products without adequate warning labels, ante, at 10, n. 8, there is no basisto contend that the text of the Labeling Act permits fraudulentadvertising.
The majority contends that the relatively constrained enforcement power of the Federal Trade Commission (FTC) in 1970 undermines any argument that Congress intended the Labeling Act to prevent States from regulating deceptive advertising and marketing of cigarettes. Ante, at 8, n. 6. I am unwilling to rely on the majority’s perception of the relative power of the FTC in 1970 to ignore Congress’ stated purpose in enacting the Labeling Act and the plain meaning of the Act’s express pre-emption provision.
The United States, in its amicus brief and at oral argument, conspicuously declined to address express pre-emption or defend the Cipollone opinion’s reasoning. See Brief for United States as Amicus Curiae 14–33. Instead, it addressed only the question of implied pre-emption, an issue I do not reach because of my resolution of the question on express pre-emption. The majority’s observation that no warning-neutralization claim is at issue in this case, ante, at 11 n. 9, misses the point. The principal weakness in the Cipollone plurality’s logic is not its distinction between claims for warning neutralization and claims for fraud. It is the fact that the predicate duty underlying New Jersey’s products liability law, from which the majority now claims the warning-neutralization claim derived, see ante, at 11, n. 8, was no more specific to smoking and health than the predicate duty underlying the fraud claim, see Cipollone, 505 U. S., at 552–553 (opinion of Scalia, J.) (“Each duty transcends the relationship between the cigarette companies and cigarette smokers; neither duty was specifically crafted with an eye toward ‘smoking and health’ ”); id., at 543 (opinion of Blackmun, J.); see also supra, at 16. Thus, the products-liability and the fraud claims must stand or fall together. The majority’s refusal to address the logical inconsistency of its approach remains as glaring today as it was in Cipollone.

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