Lindsey v. Tacoma-pierce County Health Department: Cipollone Revisited, Billboards, State Law Tort Damages Actions, Federal Preemption and the Federal Cigarette Labeling and Advertising Act
Publication year | 2000 |
Table of Contents
Introduction .............................................................. 767
I. Background ................................................................. 771
A. The Enactment of the FCLAA and the Amendments Thereto ................................................ 771
B. The Prior Case Law Involving the FCLAA, Including
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
II.
A.
B.
C.
D.
III. Discussion ..................................................................... 806
A. Some General Observations Relating to
1. In
2. Both the Original FCLAA and the 1969 Act Targeted the Television, Radio, and Print Media but Did Not Refer to Billboard Advertising Either in the Acts Themselves or in the Legislative Histories Accompanying Them ................................................................... 808
3. The FCLAA Did Not Specifically Reference Billboards Until 1984, Well After Even the Amended Preemption Provision Was in Place, and It Distinguishes Them from Other Types of Advertising ............................................ 810
B. The Problem with the Ninth Circuit's Extensive Reliance on
1.
2. The Supreme Court's Plurality Opinion in
3. Despite the Edict in
C. There Are Legitimate Criticisms Regarding the Plurality's Opinion in
1. The Plurality's Determination That the Amended Preemption Provision Expressly Preempts Certain State Law Claims but Not Others Is Questionable and Operates Much Like Implied Preemption ...................................... 816
a. Is There a "Reliable Indicium of Congressional Intent?"...................................... 816
b. The Other Courts Found No Express Preemption ..................................................... 818
c. The Methodology Created Operates Much Like Implied Preemption ....................... 818
2. Although Justices Blackmun and Scalia Reached Opposite Conclusions in
a. Scalia: Plurality Created New Rule on Implied Preemption ......................................... 819
b. Blackmun: Plurality's Reasoning Flawed and Disregarded Legislative History ........................................................... 821
i. The Plain Language of the 1969 Act ......................................................... 821
ii. The Legislative History Accompanying the 1969 Act ................... 823
c. Blackmun and Scalia: The Plurality Created a Confusing Methodology ................... 825
3. The Amended Preemption Provision Was Not a Substantial Reworking, as Claimed by the Plurality in
a. The Change from "Statement" to "Requirement or Prohibition" ......................... 827
b. The Phrase "With Respect to the Advertising or Promotion" .............................. 828
c. The 1969 Act's "Based on Smoking and Health" ........................................................... 829
d. The Reason the Term "State Law" Was Used ............................................................... 831
D. The Ninth Circuit's Opinion in
1. Contrary to the Ninth Circuit's Contention in
2. The Ninth Circuit in
3.
E. Other Thoughts on
1. The Tombstone Provisions in
2. It Is Noteworthy That the Smokeless Tobacco Act Allows State Damages Actions and Regulation of Outdoor Billboard Advertisements of Smokeless Tobacco Products by State and Local Entities ..................... 842
3. There Is Probably a More Difficult First Amendment Issue in These Billboard Cases and the FCLAA Should Not Be Used with Federal Preemption Principles Solely to Avoid Addressing the Constitutional Issue ...................... 843
CONCLUSION: THE FCLAA SHOULD NOT BE permitted to "immunize" cigarette Manufacturers from State Law Tort Damages Actions or Act as a "Shield" Against These Local Regulations Restricting Cigarette Advertising........................ 845
A. State Common Law Damages Actions ........................ 845
1. The Plurality Decision in
2. The Best Positions Are the Third Circuit and New Jersey Supreme Court's .......................... 846
3. Of the Two Positions, New Jersey Supreme Court's Is Probably Best ......................... 847
B. Local Regulations Restricting Cigarette Advertising ................................................................ 850
Introduction
Despite the fact that there are approximately half as many cigarette smokers today as there were 35 years ago(fn1) before the Federal Cigarette Labeling and Advertising Act (FCLAA)(fn2) was enacted, tobacco use is still the greatest health hazard in the United States.(fn3 )Consequently, state and local government entities still feel compelled to find effective ways to curb tobacco use. This has led to the enactment of state and local restrictions aimed at limiting the impact of tobacco advertising. In response, cigarette manufacturers, retailers, and advertisers argue that these provisions violate the FCLAA. This is not surprising, because cigarette manufacturers have effectively used the FCLAA to their benefit in another context-state law tort damages claims.(fn4) However, manufacturers' attempts to utilize the FCLAA as a "shield" against local regulations...
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