505 U.S.

504
112 S.Ct. 2608
120 L.Ed.2d 407

Thomas CIPOLLONE, Individually and as Executor of the

Estate of Rose D. Cipollone, Petitioner
v.
LIGGETT GROUP, INC., et al.
No. 90-1038.
Argued Oct. 8, 1991.
Reargued Jan. 13, 1992.
Decided June 24, 1992.

Syllabus *
Section 4 of the Federal Cigarette Labeling and Advertising Act (1965
Act) required a conspicuous label warning of smoking's health hazards to
be placed on every package of cigarettes sold in this country, while 5 of
that Act, captioned "Preemption," provided: "(a) No statement relating to
smoking and health, other than the [ 4] statement . . ., shall be required
on any cigarette package," and "(b) No [such] statement . . . shall be
required in the advertising of any cigarettes the packages of which are
labeled in conformity with" 4. Section 5(b) was amended by the Public
Health Cigarette Smoking Act of 1969 (1969 Act) to specify: "No
requirement or prohibition based on smoking and health shall be imposed
under State law with respect to the advertising or promotion of any
cigarettes the packages of which are [lawfully] labeled." Petitioner's
complaint in his action for damages invoked the District Court's diversity
jurisdiction and alleged, inter alia, that respondent cigarette manufacturers
were responsible for the 1984 death of his mother, a smoker since 1942,
because they breached express warranties contained in their advertising,
failed to warn consumers about smoking's hazards, fraudulently
misrepresented those hazards to consumers, and conspired to deprive the
public of medical and scientific information about smoking, all in
derogation of duties created by New Jersey law. The District Court
ultimately ruled, among other things, that these claims were pre-empted
by the 1965 and 1969 Acts to the extent that the claims relied on
respondents' advertising, promotional, and public relations activities after

the effective date of the 1965 Act. The Court of Appeals affirmed on this
point.
Held: The judgment is reversed in part and affirmed in part, and the case
is remanded.
893 F.2d 541, reversed in part, affirmed in part, and remanded.

Justice STEVENS delivered the opinion of the Court with respect to Parts I, II,
III, and IV, concluding that 5 of the 1965 Act did not preempt state law
damages actions, but superseded only positive enactments by state and federal
rulemaking bodies mandating particular warnings on cigarette labels or in
cigarette advertisements. This conclusion is required by the section's precise
and narrow prohibition of required cautionary "statement[s]"; by the strong
presumption against pre-emption of state police power regulations; by the fact
that the required 4 warning does not by its own effect foreclose additional
obligations imposed under state law; by the fact that there is no general,
inherent conflict between federal pre-emption of state warning requirements and
the continued vitality of common law damages actions; and by the Act's stated
purpose and regulatory context, which establish that 5 was passed to prevent
a multiplicity of pending and diverse "regulations," a word that most naturally
refers to positive enactments rather than common law actions. Pp. 517-520.

Justice STEVENS, joined by THE CHIEF JUSTICE, Justice WHITE, and

Justice O'CONNOR, concluded in Parts V and VI that 5(b) of the 1969 Act
pre-empts certain of petitioner's failure to warn and fraudulent
misrepresentation claims, but does not pre-empt other such claims or the claims
based on express warranty or conspiracy. Pp. 520-530.

(a) The broad language of amended 5(b) extends the section's pre-emptive
reach beyond positive enactments to include some common law damages
actions. The statutory phrase "requirement or prohibition" suggests no
distinction between positive enactments and common law, but, in fact, easily
encompasses obligations that take the form of common law rules, while the
phrase "imposed under State law" clearly contemplates common law as well as
statutes and regulations. This does not mean, however, that 5(b) pre-empts all
common law claims, nor does the statute indicate that any familiar subdivision
of common law is or is not pre-empted. Instead, the precise language of 5(b)
must be fairly butin light of the presumption against pre-emptionnarrowly
construed, and each of petitioner's common law claims must be examined to
determine whether it is in fact pre-empted. The central inquiry in each case is

straightforward: whether the legal duty that is the predicate of the common law
damages action satisfies 5(b)'s express terms, giving those terms a fair but
narrow reading. Each phrase within the section limits the universe of common
law claims pre-empted by the statute. Pp. 517-524.
4

(b) Insofar as claims under either of petitioner's failure to warn theoriesi.e.,

that respondents were negligent in the manner that they tested, researched, sold,
promoted, and advertised their cigarettes, and that they failed to provide
adequate warnings of smoking's consequencesrequire a showing that
respondents' post-1969 advertising or promotions should have included
additional, or more clearly stated, warnings, those claims rely on a state law
"requirement or prohibition . . . with respect to . . . advertising or promotion"
within 5(b)'s meaning and are pre-empted. Pp. 524-525.

(c) To the extent that petitioner has a viable claim for breach of express
warranties, that claim is not pre-empted. While the general duty not to breach
such warranties arises under state law, a manufacturer's liability for the breach
derives from, and is measured by, the terms of the warranty. A common law
remedy for a contractual commitment voluntarily undertaken should not be
regarded as a "requirement . . . imposed under State law" under 5(b). Pp. 525527.

(d) Because 5(b) pre-empts "prohibition[s]" as well as "requirement[s]," it

supersedes petitioner's first fraudulent misrepresentation theory, which is
predicated on a state law prohibition against advertising and promotional
statements tending to minimize smoking's health hazards, and which alleges
that respondents' advertising neutralized the effect of the federally mandated
warning labels. However, the claims based on petitioner's second fraudulent
misrepresentation theorywhich alleges intentional fraud both by false
representation and concealment of material factsare not pre-empted. The
concealment allegations, insofar as they rely on a state law duty to disclose
material facts through channels of communication other than advertising and
promotions, do not involve an obligation "with respect to" those activities
within 5(b)'s meaning. Moreover, those fraudulent misrepresentation claims
that do arise with respect to advertising and promotions are not predicated on a
duty "based on smoking and health" but rather on a more general obligation
the duty not to deceive. Pp. 527-529.

(e) Petitioner's claim alleging a conspiracy among respondents to misrepresent

or conceal material facts concerning smoking's health hazards is not preempted, since the predicate duty not to conspire to commit fraud that underlies
that claim is not a prohibition "based on smoking and health" as that 5(b)

phrase is properly construed. P. 530.

8

Justice BLACKMUN, joined by Justice KENNEDY and Justice SOUTER,

concluded that the modified language of 5(b) in the 1969 Act does not clearly
exhibit the necessary congressional intent to pre-empt state common-law
damages actions, and therefore concurred in the judgment that certain of
petitioners failure to warn and fraudulent misrepresentation claims, as well as
his express warranty and conspiracy claims, are not pre-empted by Act. Pp.
533-534.

Justice SCALIA, joined by Justice THOMAS, concluded that all of petitioner's

common-law claims are pre-empted by the 1969 Act under ordinary principles
of statutory construction, and therefore concurred in the judgment that certain
of his post-1969 failure-to-warn claims and certain of his fraudulent
misrepresentation claims are pre-empted. P. 548.

10

STEVENS, J., announced the judgment of the Court and delivered the opinion
of the Court with respect to Parts I, II, III, and IV, in which REHNQUIST, C.J.,
and WHITE, BLACKMUN, O'CONNOR, KENNEDY, and SOUTER, JJ.,
joined, and an opinion with respect to Parts V and VI, in which REHNQUIST,
C.J., and WHITE and O'CONNOR, JJ., joined. BLACKMUN, J., filed an
opinion concurring in part, concurring in the judgment in part, and dissenting in
part, in which KENNEDY and SOUTER, JJ., joined. SCALIA, J., filed an
opinion concurring in the judgment in part and dissenting in part, in which
THOMAS, J., joined.

11

Laurence H. Tribe, Cambridge, Mass., Marc Z. Edell, Short Hills, N.J., for
petitioner.

12

H. Bartow Farr, III, Washington, D.C., for respondents.

13

Justice STEVENS delivered the opinion of the Court, except as to Parts V and
VI.

14

"Warning: The Surgeon General Has Determined That Cigarette Smoking Is

Dangerous to Your Health." A federal statute enacted in 1969 requires that
warning (or a variation thereof) to appear in a conspicuous place on every
package of cigarettes sold in the United States.1 The questions presented to us
by this case are whether that statute, or its 1965 predecessor which required a
less alarming label, pre-empted petitioner's common law claims against
respondent cigarette manufacturers.

15

Petitioner is the son of Rose Cipollone, who began smoking in 1942 and who
died of lung cancer in 1984. He claims that respondents are responsible for
Rose Cipollone's death because they breached express warranties contained in
their advertising, because they failed to warn consumers about the hazards of
smoking, because they fraudulently misrepresented those hazards to consumers,
and because they conspired to deprive the public of medical and scientific
information about smoking. The Court of Appeals held that petitioner's state
law claims were pre-empted by federal statutes, 893 F.2d 541 (CA3 1990), and
other courts have agreed with that analysis.2 The highest courts of the States of
Minnesota and New Jersey, however, have held that the federal statutes did not
pre-empt similar common law claims.3 Because of the manifest importance of
the issue, we granted certiorari to resolve the conflict, 500 U.S. ----, 111 S.Ct.
1386, 113 L.Ed.2d 443 (1991). We now reverse in part and affirm in part.

16

* On August 1, 1983, Rose Cipollone and her husband filed a complaint

invoking the diversity jurisdiction of the Federal District Court. Their
complaint alleged that Rose Cipollone developed lung cancer because she
smoked cigarettes manufactured and sold by the three respondents. After her
death in 1984, her husband filed an amended complaint. After trial, he also
died; their son, executor of both estates, now maintains this action.

17

Petitioner's third amended complaint alleges several different bases of recovery,

relying on theories of strict liability, negligence, express warranty, and
intentional tort. These claims, all based on New Jersey law, divide into five
categories. The "design defect claims" allege that respondents' cigarettes were
defective because respondents failed to use a safer alternative design for their
products and because the social value of their product was outweighed by the
dangers it created (Count 2, App. 83-84). The "failure to warn claims" allege
both that the product was "defective as a result of [respondents'] failure to
provide adequate warnings of the health consequences of cigarette smoking"
(Count 3, App. 85) and that respondents "were negligent in the manner [that]
they tested, researched, sold, promoted, and advertised" their cigarettes (Count
4, App. 86). The "express warranty claims" allege that respondents had
"expressly warranted that smoking the cigarettes which they manufactured and
sold did not present any significant health consequences" (Count 7, App. 88).
The "fraudulent misrepresentation claims" allege that respondents had wilfully
"through their advertising, attempted to neutralize the [federally mandated]
warnin[g]" labels (Count 6, App. 87-88), and that they had possessed, but had
"ignored and failed to act upon" medical and scientific data indicating that
"cigarettes were hazardous to the health of consumers" (Count 8, App. 89).
Finally, the "conspiracy to defraud claims" allege that respondents conspired to
deprive the public of such medical and scientific data (Count 8, App. 89).

18

As one of their defenses, respondents contended that the Federal Cigarette

Labeling and Advertising Act, enacted in 1965, and its successor, the Public
Health Cigarette Smoking Act of 1969, protected them from any liability based
on their conduct after 1965. In a pretrial ruling, the District Court concluded
that the federal statutes were intended to establish a uniform warning that
would prevail throughout the country and that would protect cigarette
manufacturers from being "subjected to varying requirements from state to
state," Cipollone v. Liggett Group, Inc., 593 F.Supp. 1146, 1148 (N.J.1984), but
that the statutes did not pre-empt common law actions. Id., at 1153-1170.4
Accordingly, the court granted a motion to strike the pre-emption defense
entirely.

19

The Court of Appeals accepted an interlocutory appeal pursuant to 28 U.S.C.

1292(b), and reversed. Cipollone v. Liggett Group, Inc., 789 F.2d 181 (CA3
1986). The court rejected respondents' contention that the federal Acts
expressly pre-empted common law actions, but accepted their contention that
such actions would conflict with federal law. Relying on the statement of
purpose in the statutes, 5 the court concluded that Congress' "carefully drawn
balance between the purposes of warning the public of the hazards of cigarette
smoking and protecting the interests of the national economy" would be upset
by state law damages actions based on noncompliance with "warning,
advertisement, and promotion obligations other than those prescribed in the
[federal] Act." Id., at 187. Accordingly, the court held:

20

"the Act pre-empts those state law damage[s] actions relating to smoking and
health that challenge either the adequacy of the warning on cigarette packages
or the propriety of a party's actions with respect to the advertising and
promotion of cigarettes. [W]here the success of a state law damage[s] claim
necessarily depends on the assertion that a party bore the duty to provide a
warning to consumers in addition to the warning Congress has required on
cigarette packages, such claims are pre-empted as conflicting with the Act."
Ibid. (footnote omitted).

21

The court did not, however, identify the specific claims asserted by petitioner
that were pre-empted by the Act.

22

This Court denied a petition for certiorari, 479 U.S. 1043, 107 S.Ct. 907, 93
L.Ed.2d 857 (1987), and the case returned to the District Court for trial.
Complying with the Court of Appeals mandate, the District Court held that the
failure to warn, express warranty, fraudulent misrepresentation, and conspiracy
to defraud claims were barred to the extent that they relied on respondents'
advertising, promotional, and public relations activities after January 1, 1966

(the effective date of the 1965 Act). Cipollone v. Liggett Group, Inc., 649
F.Supp. 664, 669, 673-675 (N.J.1986). The court also ruled that while the
design defect claims were not pre-empted by federal law, those claims were
barred on other grounds.6 Id., at 669-672. Following extensive discovery and a
four-month trial, the jury answered a series of special interrogatories and
awarded $400,000 in damages to Rose Cipollone's husband. In brief, it rejected
all of the fraudulent misrepresentation and conspiracy claims, but found that
respondent Liggett had breached its duty to warn and its express warranties
before 1966. It found, however, that Rose Cipollone had "voluntarily and
unreasonably encounter[ed] a known danger by smoking cigarettes" and that
80% of the responsibility for her injuries was attributable to her. See 893 F.2d,
at 554 (summarizing jury findings). For that reason, no damages were awarded
to her estate. However, the jury awarded damages to compensate her husband
for losses caused by respondents' breach of express warranty.
23

On cross-appeals from the final judgment, the Court of Appeals affirmed the
District Court's pre-emption rulings but remanded for a new trial on several
issues not relevant to our decision. We granted the petition for certiorari to
consider the pre-emptive effect of the federal statutes.

II
24

Although physicians had suspected a link between smoking and illness for
centuries, the first medical studies of that connection did not appear until the
1920s. See U.S. Dept. of Health and Human Services, Report of the Surgeon
General, Reducing the Health Consequences of Smoking: 25 Years of Progress
5 (1989). The ensuing decades saw a wide range of epidemiologic and
laboratory studies on the health hazards of smoking. Thus, by the time the
Surgeon General convened an advisory committee to examine the issue in 1962,
there were more than 7,000 publications examining the relationship between
smoking and health. Id., at 5-7.

25

In 1964, the advisory committee issued its report, which stated as its central
conclusion: "Cigarette smoking is a health hazard of sufficient importance in
the United States to warrant appropriate remedial action." U.S. Dept. of Health,
Education, and Welfare, U.S. Surgeon General's Advisory Committee,
Smoking and Health 33 (1964). Relying in part on that report, the Federal
Trade Commission (FTC), which had long regulated unfair and deceptive
advertising practices in the cigarette industry,7 promulgated a new trade
regulation rule. That rule, which was to take effect January 1, 1965, established
that it would be a violation of the Federal Trade Commission Act "to fail to
disclose, clearly and prominently, in all advertising and on every pack, box,

carton, or container [of cigarettes] that cigarette smoking is dangerous to health

and may cause death from cancer and other diseases." 29 Fed.Reg. 8325
(1964). Several States also moved to regulate the advertising and labeling of
cigarettes. See, e.g., 1965 N.Y.Laws, ch. 470; see also 111 Cong.Rec. 1390013902 (1965) (statement of Sen. Moss). Upon a congressional request, the FTC
postponed enforcement of its new regulation for six months. In July 1965,
Congress enacted the Federal Cigarette Labeling and Advertising Act.8 The
1965 Act effectively adopted half of the FTC's regulation: the Act mandated
warnings on cigarette packages ( 5(a)), but barred the requirement of such
warnings in cigarette advertising ( 5(b)).9
26

Section 2 of the Act declares the statute's two purposes: (1) adequately
informing the public that cigarette smoking may be hazardous to health, and (2)
protecting the national economy from the burden imposed by diverse,
nonuniform and confusing cigarette labeling and advertising regulations.10 In
furtherance of the first purpose, 4 of the Act made it unlawful to sell or
distribute any cigarettes in the United States unless the package bore a
conspicuous label stating: "Caution: Cigarette Smoking May Be Hazardous to
Your Health." In furtherance of the second purpose, 5, captioned
"Preemption," provided in part:

27

"(a) No statement relating to smoking and health, other than the statement
required by section 4 of this Act, shall be required on any cigarette package.

28

"(b) No statement relating to smoking and health shall be required in the

advertising of any cigarettes the packages of which are labeled in conformity
with the provisions of this Act."

29

Although the Act took effect January 1, 1966, 10 of the Act provided that its
provisions affecting the regulation of advertising would terminate on July 1,
1969.

30

As that termination date approached, federal authorities prepared to issue

further regulations on cigarette advertising. The FTC announced the
reinstitution of its 1964 proceedings concerning a warning requirement for
cigarette advertisements. 34 Fed.Reg. 7917 (1969). The Federal
Communications Commission (FCC) announced that it would consider "a
proposed rule which would ban the broadcast of cigarette commercials by radio
and television stations." 34 Fed.Reg. 1959 (1969). State authorities also
prepared to take actions regulating cigarette advertisements.11

31

It was in this context that Congress enacted the Public Health Cigarette
Smoking Act of 1969,12 which amended the 1965 Act in several ways. First, the
1969 Act strengthened the warning label, in part by requiring a statement that
cigarette smoking "is dangerous" rather than that it "may be hazardous."
Second, the 1969 Act banned cigarette advertising in "any medium of electronic
communication subject to [FCC] jurisdiction." Third, and related, the 1969 Act
modified the pre-emption provision by replacing the original 5(b) with a
provision that reads:

32

"(b) No requirement or prohibition based on smoking and health shall be

imposed under State law with respect to the advertising or promotion of any
cigarettes the packages of which are labeled in conformity with the provisions
of this Act."

33

Although the Act also directed the FTC not to "take any action before July 1,
1971, with respect to its pending trade regulation rule proceeding relating to
cigarette advertising," the narrowing of the pre-emption provision to prohibit
only restrictions "imposed under State law" cleared the way for the FTC to
extend the warning-label requirement to print advertisements for cigarettes. The
FTC did so in 1972. See In re Lorillard, 80 F.T.C. 455 (1972).

III
34

Article VI of the Constitution provides that the laws of the United States "shall
be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of
any state to the Contrary notwithstanding." Art. VI, cl. 2. Thus, since our
decision in M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427, 4 L.Ed. 579
(1819), it has been settled that state law that conflicts with federal law is
"without effect." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114,
2128, 68 L.Ed.2d 576 (1981). Consideration of issues arising under the
Supremacy Clause "start[s] with the assumption that the historic police powers
of the States [are] not to be superseded by . . . Federal Act unless that [is] the
clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Accordingly, " '[t]he
purpose of Congress is the ultimate touchstone' " of pre-emption analysis.
Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1189, 55
L.Ed.2d 443 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103,
84 S.Ct. 219, 222, 11 L.Ed.2d 179 (1963)).

35

Congress' intent may be "explicitly stated in the statute's language or implicitly

contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S.

519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977). In the absence of an
express congressional command, state law is pre-empted if that law actually
conflicts with federal law, see Pacific Gas & Elec. Co. v. Energy Resources
Conservation and Development Comm'n, 461 U.S. 190, 204, 103 S.Ct. 1713,
1722, 75 L.Ed.2d 752 (1983), or if federal law so thoroughly occupies a
legislative field " 'as to make reasonable the inference that Congress left no
room for the States to supplement it.' " Fidelity Federal Savings & Loan Assn.
v. De la Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664
(1982) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S., at 230, 67 S.Ct., at
1152).
36

The Court of Appeals was not persuaded that the pre-emption provision in the
1969 Act encompassed state common law claims.13 789 F.2d, at 185-186. It
was also not persuaded that the labeling obligation imposed by both the 1965
and 1969 Acts revealed a congressional intent to exert exclusive federal control
over every aspect of the relationship between cigarettes and health. Id., at 186.
Nevertheless, reading the statute as a whole in the light of the statement of
purpose in 2, and considering the potential regulatory effect of state common
law actions on the federal interest in uniformity, the Court of Appeals
concluded that Congress had impliedly pre-empted petitioner's claims
challenging the adequacy of the warnings on labels or in advertising or the
propriety of respondents' advertising and promotional activities. Id., at 187.

37

In our opinion, the pre-emptive scope of the 1965 Act and the 1969 Act is
governed entirely by the express language in 5 of each Act. When Congress
has considered the issue of pre-emption and has included in the enacted
legislation a provision explicitly addressing that issue, and when that provision
provides a "reliable indicium of congressional intent with respect to state
authority," Malone v. White Motor Corp., 435 U.S., at 505, 98 S.Ct., at 1190,
"there is no need to infer congressional intent to pre-empt state laws from the
substantive provisions" of the legislation. California Federal Savings & Loan
Assn. v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed.2d 613 (1987)
(opinion of Marshall, J.). Such reasoning is a variant of the familiar principle of
expression unius est exclusio alterius: Congress' enactment of a provision
defining the pre-emptive reach of a statute implies that matters beyond that
reach are not pre-empted. In this case, the other provisions of the 1965 and
1969 Acts offer no cause to look beyond 5 of each Act. Therefore, we need
only identify the domain expressly pre-empted by each of those sections. As
the 1965 and 1969 provisions differ substantially, we consider each in turn.

IV

38

In the 1965 pre-emption provision regarding advertising ( 5(b)), Congress

spoke precisely and narrowly: "No statement relating to smoking and health
shall be required in the advertising of [properly labeled] cigarettes." Section
5(a) used the same phrase ("No statement relating to smoking and health") with
regard to cigarette labeling. As 5(a) made clear, that phrase referred to the
sort of warning provided for in 4, which set forth verbatim the warning
Congress determined to be appropriate. Thus, on their face, these provisions
merely prohibited state and federal rule-making bodies from mandating
particular cautionary statements on cigarette labels ( 5(a)) or in cigarette
advertisements ( 5(b)).

39

Beyond the precise words of these provisions, this reading is appropriate for
several reasons. First, as discussed above, we must construe these provisions in
light of the presumption against the pre-emption of state police power
regulations. This presumption reinforces the appropriateness of a narrow
reading of 5. Second, the warning required in 4 does not by its own effect
foreclose additional obligations imposed under state law. That Congress
requires a particular warning label does not automatically pre-empt a regulatory
field. See McDermott v. Wisconsin, 228 U.S. 115, 131-132, 33 S.Ct. 431, 434435, 57 L.Ed. 754 (1913). Third, there is no general, inherent conflict between
federal pre-emption of state warning requirements and the continued vitality of
state common law damages actions. For example, in the Comprehensive
Smokeless Tobacco Health Education Act of 1986,14 Congress expressly preempted State or local imposition of a "statement relating to the use of smokeless
tobacco products and health" but, at the same time, preserved state law
damages actions based on those products. See 15 U.S.C. 4406. All of these
considerations indicate that 5 is best read as having superseded only positive
enactments by legislatures or administrative agencies that mandate particular
warning labels.15

40

This reading comports with the 1965 Act's statement of purpose, which
expressed an intent to avoid "diverse, nonuniform, and confusing labeling and
advertising regulations with respect to any relationship between smoking and
health." Read against the backdrop of regulatory activity undertaken by state
legislatures and federal agencies in response to the Surgeon General's report,
the term "regulation" most naturally refers to positive enactments by those
bodies, not to common law damages actions.

41

The regulatory context of the 1965 Act also supports such a reading. As noted
above, a warning requirement promulgated by the FTC and other requirements
under consideration by the States were the catalyst for passage of the 1965 Act.

These regulatory actions animated the passage of 5, which reflected Congress'

efforts to prevent "a multiplicity of State and local regulations pertaining to
labeling of cigarette packages," H.R.Rep. No. 89-449, 89th Cong., 1st Sess., 4
(1965), and to "pre-empt [all] Federal, State, and local authorit[ies] from
requiring any statement . . . relating to smoking and health in the advertising of
cigarettes." Id., at 5 (emphasis supplied). 16
42

For these reasons, we conclude that 5 of the 1965 Act only pre-empted state
and federal rulemaking bodies from mandating particular cautionary statements
and did not pre-empt state law damages actions.17

V
43

Compared to its predecessor in the 1965 Act, the plain language of the preemption provision in the 1969 Act is much broader. First, the later Act bars not
simply "statements" but rather "requirement[s] or prohibition[s] . . . imposed
under State law." Second, the later Act reaches beyond statements "in the
advertising" to obligations "with respect to the advertising or promotion" of
cigarettes.

44

Notwithstanding these substantial differences in language, both petitioner and

respondents contend that the 1969 Act did not materially alter the pre-emptive
scope of federal law.18 Their primary support for this contention is a sentence in
a Committee Report which states that the 1969 amendment "clarified" the 1965
version of 5(b). S.Rep. No. 91-566, p. 12 (1969). We reject the parties'
reading as incompatible with the language and origins of the amendments. As
we noted in another context, "[i]nferences from legislative history cannot rest
on so slender a reed. Moreover, the views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one." United States v.
Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960). The 1969
Act worked substantial changes in the law: rewriting the label warning,
banning broadcast advertising, and allowing the FTC to regulate print
advertising. In the context of such revisions and in light of the substantial
changes in wording, we cannot accept the parties' claim that the 1969 Act did
not alter the reach of 5(b).19

45

Petitioner next contends that 5(b), however broadened by the 1969 Act, does
not pre-empt common law actions. He offers two theories for limiting the reach
of the amended 5(b). First, he argues that common law damages actions do
not impose "requirement[s] or prohibition[s]" and that Congress intended only
to trump "state statute[s], injunction[s], or executive pronouncement[s]."20 We
disagree; such an analysis is at odds both with the plain words of the 1969 Act

and with the general understanding of common law damages actions. The
phrase "[n]o requirement or prohibition" sweeps broadly and suggests no
distinction between positive enactments and common law; to the contrary,
those words easily encompass obligations that take the form of common law
rules. As we noted in another context, "[state] regulation can be as effectively
exerted through an award of damages as through some form of preventive
relief. The obligation to pay compensation can be, indeed is designed to be, a
potent method of governing conduct and controlling policy." San Diego
Building Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3
L.Ed.2d 775 (1959).
46

Although portions of the legislative history of the 1969 Act suggest that
Congress was primarily concerned with positive enactments by States and
localities, see S.Rep. No. 91-566, p. 12, the language of the Act plainly reaches
beyond such enactments. "We must give effect to this plain language unless
there is good reason to believe Congress intended the language to have some
more restrictive meaning." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103
S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983). In this case there is no "good reason
to believe" that Congress meant less than what it said; indeed, in light of the
narrowness of the 1965 Act, there is "good reason to believe" that Congress
meant precisely what it said in amending that Act.

47

Moreover, common law damages actions of the sort raised by petitioner are
premised on the existence of a legal duty and it is difficult to say that such
actions do not impose "requirements or prohibitions." See W. Prosser, Law of
Torts 4 (4th ed. 1971); Black's Law Dictionary 1489 (6th ed. 1990) (defining
"tort" as "always [involving] a violation of some duty owing to plaintiff"). It is
in this way that the 1969 version of 5(b) differs from its predecessor:
Whereas the common law would not normally require a vendor to use any
specific statement on its packages or in its advertisements, it is the essence of
the common law to enforce duties that are either affirmative requirements or
negative prohibitions. We therefore reject petitioner's argument that the phrase
"requirement or prohibition" limits the 1969 Act's pre-emptive scope to positive
enactments by legislatures and agencies.

48

Petitioner's second argument for excluding common law rules from the reach of
5(b) hinges on the phrase "imposed under State law." This argument fails as
well. At least since Erie R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.
1188 (1938), we have recognized the phrase "state law" to include common law
as well as statutes and regulations. Indeed just last Term, the Court stated that
the phrase "all other law, including State and municipal law" "does not admit of
[a] distinction . . . between positive enactments and common-law rules of

liability." Norfolk & Western R. Co. v. Train Dispatchers, 499 U.S. ----, ----,
111 S.Ct. 1156, 1163, 113 L.Ed.2d 95 (1991). Although the presumption
against pre-emption might give good reason to construe the phrase "state law"
in a pre-emption provision more narrowly than an identical phrase in another
context, in this case such a construction is not appropriate. As explained above,
the 1965 version of 5 was precise and narrow on its face; the obviously
broader language of the 1969 version extended that section's pre-emptive reach.
Moreover, while the version of the 1969 Act passed by the Senate pre-empted
"any State statute or regulation with respect to . . . advertising or promotion,"
S.Rep. No. 91-566, p. 16, the Conference Committee replaced this language
with "State law with respect to advertising or promotion." In such a situation,
5(b)'s pre-emption of "state law" cannot fairly be limited to positive
enactments.
49

That the pre-emptive scope of 5(b) cannot be limited to positive enactments

does not mean that that section pre-empts all common law claims. For example,
as respondents concede, 5(b) does not generally pre-empt "state-law
obligations to avoid marketing cigarettes with manufacturing defects or to use a
demonstrably safer alternative design for cigarettes."21 For purposes of 5(b),
the common law is not of a piece.

50

Nor does the statute indicate that any familiar subdivision of common law
claims is or is not pre-empted. We therefore cannot follow petitioner's passing
suggestion that 5(b) pre-empts liability for omissions but not for acts, or that
5(b) pre-empts liability for unintentional torts but not for intentional torts.
Instead we must fairly butin light of the strong presumption against preemptionnarrowly construe the precise language of 5(b) and we must look to
each of petitioner's common law claims to determine whether it is in fact preempted.22 The central inquiry in each case is straightforward: we ask whether
the legal duty that is the predicate of the common law damages action
constitutes a "requirement or prohibition based on smoking and health . . .
imposed under State law with respect to . . . advertising or promotion," giving
that clause a fair but narrow reading. As discussed below, each phrase within
that clause limits the universe of common law claims pre-empted by the statute.

51

We consider each category of damages actions in turn. In doing so, we express

no opinion on whether these actions are viable claims as a matter of state law;
we assume arguendo that they are.

Failure to Warn
52

To establish liability for a failure to warn, petitioner must show that "a warning

is necessary to make a product . . . reasonably safe, suitable and fit for its
intended use," that respondents failed to provide such a warning, and that that
failure was a proximate cause of petitioner's injury. Tr. 12738. In this case,
petitioner offered two closely related theories concerning the failure to warn:
first, that respondents "were negligent in the manner [that] they tested,
researched, sold, promoted, and advertised" their cigarettes; and second, that
respondents failed to provide "adequate warnings of the health consequences of
cigarette smoking." App. 85-86.
53

Petitioner's claims are pre-empted to the extent that they rely on a state law
"requirement or prohibition . . . with respect to . . . advertising or promotion."
Thus, insofar as claims under either failure to warn theory require a showing
that respondents' post-1969 advertising or promotions should have included
additional, or more clearly stated, warnings, those claims are pre-empted. The
Act does not, however, pre-empt petitioner's claims that rely solely on
respondents' testing or research practices or other actions unrelated to
advertising or promotion.

Breach of Express Warranty

54

Petitioner's claim for breach of an express warranty arises under N.J.Stat.Ann.

12A:2-313(1)(a) (West 1991), which provides:

55

"Any affirmation of fact or promise made by the seller to the buyer which
relates to the goods and becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the affirmation or promise."

56

Petitioner's evidence of an express warranty consists largely of statements made

in respondents' advertising. See 893 F.2d, at 574, 576; 683 F.Supp. 1487, 1497
(N.J.1988). Applying the Court of Appeals' ruling that Congress pre-empted
"damage[s] actions . . . that challenge . . . the propriety of a party's actions with
respect to the advertising and promotion of cigarettes," 789 F.2d, at 187, the
District Court ruled that this claim "inevitably brings into question
[respondents'] advertising and promotional activities, and is therefore preempted" after 1965. 649 F.Supp., at 675. As demonstrated above, however, the
1969 Act does not sweep so broadly: the appropriate inquiry is not whether a
claim challenges the "propriety" of advertising and promotion, but whether the
claim would require the imposition under state law of a requirement or
prohibition based on smoking and health with respect to advertising or
promotion.

57

A manufacturer's liability for breach of an express warranty derives from, and

57

A manufacturer's liability for breach of an express warranty derives from, and

is measured by, the terms of that warranty. Accordingly, the "requirements"
imposed by an express warranty claim are not "imposed under State law," but
rather imposed by the warrantor. 23 If, for example, a manufacturer expressly
promised to pay a smoker's medical bills if she contracted emphysema, the duty
to honor that promise could not fairly be said to be "imposed under state law,"
but rather is best understood as undertaken by the manufacturer itself. While
the general duty not to breach warranties arises under state law, the particular
"requirement . . . based on smoking and health . . . with respect to the
advertising or promotion [of] cigarettes" in an express warranty claim arises
from the manufacturer's statements in its advertisements. In short, a common
law remedy for a contractual commitment voluntarily undertaken should not be
regarded as a "requirement . . . imposed under State law " within the meaning
of 5(b).24

58

That the terms of the warranty may have been set forth in advertisements rather
than in separate documents is irrelevant to the pre-emption issue (though
possibly not to the state law issue of whether the alleged warranty is valid and
enforceable) because although the breach of warranty claim is made "with
respect to advertising" it does not rest on a duty imposed under state law.
Accordingly, to the extent that petitioner has a viable claim for breach of
express warranties made by respondents, that claim is not pre-empted by the
1969 Act.

Fraudulent Misrepresentation
59

Petitioner alleges two theories of fraudulent misrepresentation. First, petitioner

alleges that respondents, through their advertising, neutralized the effect of
federally mandated warning labels. Such a claim is predicated on a state-law
prohibition against statements in advertising and promotional materials that
tend to minimize the health hazards associated with smoking. Such a
prohibition, however, is merely the converse of a state law requirement that
warnings be included in advertising and promotional materials. Section 5(b) of
the 1969 Act pre-empts both requirements and prohibitions; it therefore
supersedes petitioner's first fraudulent misrepresentation theory.

60

Regulators have long recognized the relationship between prohibitions on

advertising that downplays the dangers of smoking and requirements for
warnings in advertisements. For example, the FTC, in promulgating its initial
trade regulation rule in 1964, criticized advertising that "associated cigarette
smoking with such positive attributes as contentment, glamour, romance, youth,
happiness . . . at the same time suggesting that smoking is an activity at least
consistent with physical health and well-being." The Commission concluded:

61

"To avoid giving a false impression that smoking [is] innocuous, the cigarette
manufacturer who represents the alleged pleasures or satisfactions of cigarette
smoking in his advertising must also disclose the serious risks to life that
smoking involves." 29 Fed.Reg., at 8356.

62

Long-standing regulations of the Food and Drug Administration express a

similar understanding of the relationship between required warnings and
advertising that "negates or disclaims" those warnings: "A hazardous substance
shall not be deemed to have met [federal labeling] requirements if there appears
in or on the label . . . statements, designs, or other graphic material that in any
manner negates or disclaims [the required warning]." 21 CFR 191.102 (1965).
In this light it seems quite clear that petitioner's first theory of fraudulent
misrepresentation is inextricably related to petitioner's first failure to warn
theory, a theory that we have already concluded is largely pre-empted by
5(b).

63

Petitioner's second theory, as construed by the District Court, alleges intentional

fraud and misrepresentation both by "false representation of a material fact [and
by] conceal[ment of] a material fact." Tr. 12727.25 The predicate of this claim is
a state law duty not to make false statements of material fact or to conceal such
facts. Our pre-emption analysis requires us to determine whether such a duty is
the sort of requirement or prohibition proscribed by 5(b).

64

Section 5(b) pre-empts only the imposition of state law obligations "with
respect to the advertising or promotion" of cigarettes. Petitioner's claims that
respondents concealed material facts are therefore not pre-empted insofar as
those claims rely on a state law duty to disclose such facts through channels of
communication other than advertising or promotion. Thus, for example, if state
law obliged respondents to disclose material facts about smoking and health to
an administrative agency, 5(b) would not pre-empt a state law claim based on
a failure to fulfill that obligation.

65

Moreover, petitioner's fraudulent misrepresentation claims that do arise with

respect to advertising and promotions (most notably claims based on allegedly
false statements of material fact made in advertisements) are not pre-empted by
5(b). Such claims are not predicated on a duty "based on smoking and health"
but rather on a more general obligationthe duty not to deceive. This
understanding of fraud by intentional misstatement is appropriate for several
reasons. First, in the 1969 Act, Congress offered no sign that it wished to
insulate cigarette manufacturers from longstanding rules governing fraud. To
the contrary, both the 1965 and the 1969 Acts explicitly reserved the FTC's
authority to identify and punish deceptive advertising practicesan authority

that the FTC had long exercised and continues to exercise. See 5(c) of the
1965 Act; 7(b) of the 1969 Act; see also nn. 7, 9, supra. This indicates that
Congress intended the phrase "relating to smoking and health" (which was
essentially unchanged by the 1969 Act) to be construed narrowly, so as not to
proscribe the regulation of deceptive advertising.26
66

Moreover, this reading of "based on smoking and health" is wholly consistent

with the purposes of the 1969 Act. State law prohibitions on false statements of
material fact do not create "diverse, nonuniform, and confusing" standards.
Unlike state law obligations concerning the warning necessary to render a
product "reasonably safe," state law proscriptions on intentional fraud rely only
on a single, uniform standard: falsity. Thus, we conclude that the phrase "based
on smoking and health" fairly but narrowly construed does not encompass the
more general duty not to make fraudulent statements. Accordingly, petitioner's
claim based on allegedly fraudulent statements made in respondents'
advertisements are not pre-empted by 5(b) of the 1969 Act.27 Conspiracy to
Misrepresant or Conceal Material Facts

67

Petitioner's final claim alleges a conspiracy among respondents to misrepresent

or conceal material facts concerning the health hazards of smoking.28 The
predicate duty underlying this claim is a duty not to conspire to commit fraud.
For the reasons stated in our analysis of petitioner's intentional fraud claim, this
duty is not pre-empted by 5(b) for it is not a prohibition "based on smoking
and health" as that phrase is properly construed. Accordingly, we conclude that
the 1969 Act does not pre-empt petitioner's conspiracy claim.

VI
68

To summarize our holding: The 1965 Act did not pre-empt state law damages
actions; the 1969 Act pre-empts petitioner's claims based on a failure to warn
and the neutralization of federally mandated warnings to the extent that those
claims rely on omissions or inclusions in respondents' advertising or
promotions; the 1969 Act does not pre-empt petitioner's claims based on
express warranty, intentional fraud and misrepresentation, or conspiracy.

69

The judgment of the Court of Appeals is accordingly reversed in part and

affirmed in part, and the case is remanded for further proceedings consistent
with this opinion.

70

It is so ordered. 1969 (the 1969 Act) is "governed entirely by the express

language" of the statutes' pre-emption provisions. Ante, at 517. Where, as here,

Congress has included in legislation a specific provision addressingand

indeed, entitledpre-emption, the Court's task is one of statutory interpretation
only to "identify the domain expressly pre-empted" by the provision. Ibid.
An interpreting court must " 'begin with the language employed by Congress
and the assumption that the ordinary meaning of that language accurately
expresses the legislative purpose.' " FMC Corp. v. Holliday, 498 U.S. ----, ----,
111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990), quoting Park 'N Fly, Inc. v. Dollar
Park and Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 661, 83 L.Ed.2d 582
(1985). See California Coastal Comm'n. v. Granite Rock Co., 480 U.S. 572,
591-593, 107 S.Ct. 1419, 1430-1431, 94 L.Ed.2d 577 (1987); California
Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683,
690, 93 L.Ed.2d 613 (1987) (opinion of Marshall, J.). We resort to principles of
implied pre-emption that is, inquiring whether Congress has occupied a
particular field with the intent to supplant state law or whether state law actually
conflicts with federal law, see English v. General Electric Co., 496 U.S. 72, 79,
110 S.Ct. 2270, 2275, 110 L.Ed.2d 65 (1990)only when Congress has been
silent with respect to pre-emption.
71

I further agree with the Court that we cannot find the state common-law
damages claims at issue in this case pre-empted by federal law in the absence
of clear and unambiguous evidence that Congress intended that result. See ante,
at 516. The Court describes this reluctance to infer pre-emption in ambiguous
cases as a "presumption against the pre-emption of state police power
regulations." Ante, at 518. Although many of the cases in which the Court has
invoked such a presumption against displacement of state law have involved
implied pre-emption, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 146-152, 83 S.Ct. 1210, 1219-1222, 10 L.Ed.2d 248 (1963); Rice
v. Santa Fe Elevator Corp., 331 U.S. 218, 236-237, 67 S.Ct. 1146, 1155-1156,
91 L.Ed. 1447 (1947), this Court often speaks in general terms without
reference to the nature of the pre-emption at issue in the given statutory
scheme. See, e.g., Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114,
2129, 68 L.Ed.2d 576 (1981) ("Consideration under the Supremacy Clause
starts with the basic assumption that Congress did not intend to displace state
law"); Avocado Growers, 373 U.S., at 146-147, 83 S.Ct., at 1219-1220 ("[W]e
are not to conclude that Congress legislated the ouster of this [state] statute . . .
in the absence of an unambiguous congressional mandate to that effect");
Bethlehem Steel Co. v. New York State Labor Relations Bd., 330 U.S. 767, 780,
67 S.Ct. 1026, 1033, 91 L.Ed. 1234 (1947) ("Any indulgence in construction
should be in favor of the States, because Congress can speak with drastic clarity
whenever it chooses to assure full federal authority, completely displacing the
States") (opinion of Frankfurter, J.).

72

The principles of federalism and respect for state sovereignty that underlie the
Court's reluctance to find pre-emption where Congress has not spoken directly
to the issue apply with equal force where Congress has spoken, though
ambiguously. In such cases, the question is not whether Congress intended to
pre-empt state regulation, but to what extent. We do not, absent unambiguous
evidence, infer a scope of pre-emption beyond that which clearly is mandated
by Congress' language.1 I therefore agree with the Court's unwillingness to
conclude that the state common-law damages claims at issue in this case are
pre-empted unless such result is " 'the clear and manifest purpose of Congress.'
" Ante, at 516 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S., at 230, 67
S.Ct., at 1152).

B
73

I also agree with the Court's application of the foregoing principles in part IV of
its opinion, where it concludes that none of petitioner's common-law damages
claims are pre-empted by the 1965 Act. In my view, the words of 5(b) of that
Act ("No statement relating to smoking and health shall be required in the
advertising of any cigarettes the packages of which are labeled in conformity
with the provisions of this Act") can bear only one meaning: that States are
prohibited merely from "mandating particular cautionary statements . . . in
cigarette advertisements." Ante, at 518. As the Court recognizes, this
interpretation comports with Congress' stated purpose of avoiding " 'diverse,
nonuniform, and confusing labeling and advertising regulations' " relating to
smoking and health. Ante, at 519 (quoting 15 U.S.C. 1331(2)). The narrow
scope of federal pre-emption is thus apparent from the statutory text, and it is
correspondingly impossible to divine any "clear and manifest purpose" on the
part of Congress to pre-empt common-law damages actions.

II
74

My agreement with the Court ceases at this point. Given the Court's proper
analytical focus on the scope of the express pre-emption provisions at issue
here and its acknowledgement that the 1965 Act does not pre-empt state
common-law damages claims, I find the Court's conclusion that the 1969 Act
pre-empts at least some common-law damages claims little short of baffling. In
my view, the modified language of 5(b), 15 U.S.C. 1334(b) ("No
requirement or prohibition based on smoking and health shall be imposed under
State law with respect to the advertising or promotion of any cigarettes the
packages of which are labeled in conformity with the provisions of this Act"),
no more "clearly" or "manifestly" exhibits an intent to pre-empt state commonlaw damages actions than did the language of its predecessor in the 1965 Act.

Nonetheless, the Court reaches a different conclusion, and its reasoning

warrants scrutiny.
A.
75

The Court premises its pre-emption ruling on what it terms the "substantial
changes" wrought by Congress in 5(b), ante, at 520, notably, the rewording
of the provision to pre-empt any "requirement or prohibition" (as opposed
merely to any "statement") "imposed under State law." As an initial matter, I do
not disagree with the Court that the phrase "State law," in an appropriate case,
can encompass the common law as well as positive enactments such as statutes
and regulations. See ante, at ----. I do disagree, however, with the Court's
conclusion that "State law" as used in 5(b) represents such an all-inclusive
reference. Congress' intention in selecting that phrase cannot be understood
without considering the narrow range of actionsany "requirement or
prohibition"that Congress specifically described in 5(b) as "imposed
under" state law. See United States v. Morton, 467 U.S. 822, 828, 104 S.Ct.
2769, 2773, 81 L.Ed.2d 680 (1984) ("We do not . . . construe statutory phrases
in isolation; we read statutes as a whole. Thus, the words [in question] must be
read in light of the immediately following phrase"); Jarecki v. G.D. Searle &
Co., 367 U.S. 303, 307, 81 S.Ct. 1579, 1582, 6 L.Ed.2d 859 (1961) ("The
maxim noscitur a sociis, that a word is known by the company it keeps, while
not an inescapable rule, is often wisely applied where a word is capable of
many meanings in order to avoid the giving of unintended breadth to the Acts
of Congress"); see also Norfolk & Western R. Co. v. Train Dispatchers, 499
U.S. ----, ----, 111 S.Ct. 1156, 1160-1161, 113 L.Ed.2d 95 (1991) (STEVENS,
J., dissenting) (declining to read the phrase "all other law, including State and
municipal law" broadly).

76

Although the Court flatly states that the phrase "no requirement or prohibition"
"sweeps broadly" and "easily encompass[es] obligations that take the form of
common law rules," ante, at 521, those words are in reality far from
unambiguous and cannot be said clearly to evidence a congressional mandate to
pre-empt state common-law damages actions. The dictionary definitions of
these terms suggest, if anything, specific actions mandated or disallowed by a
formal governing authority. See, e.g., Webster's Third New International
Dictionary 1929 (1981) (defining "require" as "to ask for authoritatively or
imperatively: claim by right and authority" and "to demand as necessary or
essential (as on general principles or in order to comply with or satisfy some
regulation)"); Black's Law Dictionary 1212 (6th ed. 1990) (defining
"prohibition" as an "[a]ct or law prohibiting something"; an "interdiction").

77

More important, the question whether common-law damages actions exert a

regulatory effect on manufacturers analogous to that of positive enactments
an assumption crucial to the Court's conclusion that the phrase "requirement or
prohibition" encompasses common-law actionsis significantly more
complicated than the Court's brief quotation from San Diego Building Trades
Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 780, 3 L.Ed.2d 775
(1959), see ante, at 521, would suggest.

78

The effect of tort law on a manufacturer's behavior is necessarily indirect.

Although an award of damages by its very nature attaches additional
consequences to the manufacturer's continued unlawful conduct, no particular
course of action (e.g., the adoption of a new warning label) is required. A
manufacturer found liable on, for example, a failure-to-warn claim may
respond in a number of ways. It may decide to accept damages awards as a cost
of doing business and not alter its behavior in any way. See Goodyear Atomic
Corp. v. Miller, 486 U.S. 174, 185-186, 108 S.Ct. 1704, 1712-1713, 100
L.Ed.2d 158 (1988) (corporation "may choose to disregard [state] safety
regulations and simply pay an additional" damages award if an employee is
injured as a result of a safety violation). Or, by contrast, it may choose to avoid
future awards by dispensing warnings through a variety of alternative
mechanisms, such as package inserts, public service advertisements, or general
educational programs. The level of choice that a defendant retains in shaping its
own behavior distinguishes the indirect regulatory effect of the common law
from positive enactments such as statutes and administrative regulations. See
Dewey v. R. J. Reynolds Tobacco Co., 121 N.J. 69, 90, 577 A.2d 1239, 1249
(1990); Garner, Cigarette Dependency and Civil Liability: A Modest Proposal,
53 S.Cal.L.Rev. 1423, 1454 (1980). Moreover, tort law has an entirely separate
functioncompensating victims that sets it apart from direct forms of
regulation. See Ferebee v. Chevron Chemical Co., 237 U.S.App.D.C. 164, 175,
736 F.2d 1529, 1540, cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d
432 (1984).

79

Despite its earlier acknowledgement, consistent with the foregoing conception

of damages actions, that "there is no general, inherent conflict between federal
pre-emption of state warning requirements and the continued vitality of state
common law damages actions," ante, at 518, 2 the Court apparently finds
Garmon's statement that "regulation can be as effectively exerted through an
award of damages as through some form of preventive relief," 359 U.S., at 247,
79 S.Ct., at 780, sufficient authority to warrant extinguishing the common-law
actions at issue in this case. See ante, at 521. I am not persuaded. Not only has
the Court previously distinguished Garmon,3 but it has declined on several
recent occasions to find the regulatory effects of state tort law direct or

substantial enough to warrant pre-emption.

80

In Goodyear Atomic Corp. v. Miller, for example, the Court distinguished, for
purposes of pre-emption analysis, "direct state regulation" of safety matters
from "the incidental regulatory effects" of damages awarded pursuant to a state
workers' compensation law. 486 U.S., at 185, 108 S.Ct. at 1712. Relying in part
on its earlier decision in Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256,
104 S.Ct. 615, 625, 78 L.Ed.2d 443 (1984),4 the Court stated that "Congress
may reasonably determine that incidental regulatory pressure is acceptable,
whereas direct regulatory authority is not." 486 U.S., at 186, 108 S.Ct., at 1712.
Even more recently, the Court declined in English v. General Electric Co., 496
U.S., at 86, 110 S.Ct., at 2279, to find state common-law damages claims for
emotional distress pre-empted by federal nuclear energy law. The Court
concluded that, although awards to former employees for emotional distress
would attach "additional consequences" to retaliatory employer conduct and
could lead employers to alter the underlying conditions about which employees
were complaining, ibid., such an effect would be "neither direct nor substantial
enough" to warrant pre-emption. Id., at 85, 110 S.Ct., at 2278.

81

In light of the recognized distinction in this Court's jurisprudence between

direct state regulation and the indirect regulatory effects of common-law
damages actions, it cannot be said that damages claims are clearly or
unambiguously "requirements" or "prohibitions" imposed under state law. The
plain language of the 1969 Act's modified pre-emption provision simply cannot
bear the broad interpretation the Court would impart to it.

B
82

Not only does the text of the revised 5(b) fail clearly or manifestly to require
pre-emption of state common-law damages actions, but there is no suggestion in
the legislative history that Congress intended to expand the scope of the preemption provision when it amended the statute in 1969. The Court
acknowledges the evidence that Congress itself perceived the changes in 5(b)
to be a mere "clarifi[cation]" of the existing narrow pre-emption provision,
ante, at 520 (quoting S.Rep. No. 91-566, p. 12 (1969) (hereinafter S.Rep.)), but
it dismisses these statements of legislative intent as the " 'views of a subsequent
Congress.' " Ante, at 520, quoting United States v. Price, 361 U.S. 304, 313, 80
S.Ct. 326, 332, 4 L.Ed.2d 334 (1960). The Court is wrong not only as a factual
matterfor the statements of the Congress that amended 5(b) are
contemporaneous, not "subsequent," to enactment of the revised pre-emption
provision but as a legal matter, as well. This Court accords "great weight" to an
amending Congress' interpretation of the underlying statute. See, e.g., Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367, 380-381 & n. 8, 89 S.Ct. 1794, 18011802 & n. 8, 23 L.Ed.2d 371 (1969).
83

Viewing the revisions to 5(b) as generally nonsubstantive in nature makes

sense. By replacing the word "statement" with the slightly broader term,
"requirement," and adding the word "prohibition" to ensure that a State could
not do through negative mandate (e.g., banning all cigarette advertising) that
which it already was forbidden to do through positive mandate (e.g., mandating
particular cautionary statements), Congress sought to "clarif[y]" the existing
precautions against confusing and nonuniform state laws and regulations.
S.Rep., p. 12.5

84

Just as it acknowledges the evidence that Congress' changes in the pre-emption

provision were nonsubstantive, the Court admits that "portions of the legislative
history of the 1969 Act suggest that Congress was primarily concerned with
positive enactments by States and localities." Ante, at 521. Indeed, the relevant
Senate report explains that the revised pre-emption provision is "intended to
include not only action by State statute but by all other administrative actions or
local ordinances or regulations by any political subdivisions of any State," a list
remarkable for the absence of any reference to common-law damages actions.
S.Rep., p. 12. Compare, e.g., 29 U.S.C. 1144(a) and (c)(1) (ERISA statute
defines "any and all State laws" as used in pre-emption provision to mean "all
laws, decisions, rules, regulations, or other State action having the effect of
law") (emphasis added). The Court dismisses this statement with the simple
observation that "the language of the Act plainly reaches beyond such [positive]
enactments." Ante, at 521. Yet, as discussed above, the words of 5(b)
("requirement or prohibition") do not so "plainly" extend to common-law
damages actions, and the Court errs in placing so much weight on this fragile
textual hook.

85

The Court further acknowledges that, at the same time that Congress amended
the pre-emption provision of 5(b), it made no effort to alter the statement of
purpose contained in 2 of the 1965 Act. Ante, at 521, n. 19. Although the
Court relegates this fact to a footnote, the continued vitality of 2 is significant,
particularly in light of the Court's reliance on the same statement of purpose for
its earlier conclusion that the 1965 Act does not pre-empt state common-law
damages actions. See ante, at 519 (concluding that Congress' expressed intent
to avoid diverse, nonuniform, and confusing regulations "most naturally refers
to positive enactments by [state legislatures and federal agencies], not to
common law damages actions").

86

Finally, there is absolutely no suggestion in the legislative history that Congress

intended to leave plaintiffs who were injured as a result of cigarette

manufacturers' unlawful conduct without any alternative remedies; yet that is
the regrettable effect of the Court's ruling today that many state common-law
damages claims are pre-empted. The Court in the past has hesitated to find preemption where federal law provides no comparable remedy. See Rabin, A
Sociolegal History of the Tobacco Tort Litigation, 44 Stan.L.Rev. 853, 869
(1992) (noting the "rather strong tradition of federal deference to competing
state interests in compensating injury victims"). Indeed, in Silkwood, the Court
took note of "Congress' failure to provide any federal remedy" for injured
persons, and stated that it was "difficult to believe that Congress would, without
comment, remove all means of judicial recourse for those injured by illegal
conduct." 464 U.S., at 251, 104 S.Ct., at 623. See also id., at 263, 104 S.Ct., at
629 (BLACKMUN, J., dissenting) ("[i]t is inconceivable that Congress
intended to leave victims with no remedy at all").
87

Unlike other federal statutes where Congress has eased the bite of pre-emption
by establishing "comprehensive" civil enforcement schemes, see, e.g.,
Ingersoll-Rand Co. v. McClendon, 498 U.S. ----, ----, 111 S.Ct. 478, 485-486,
112 L.Ed.2d 474 (1990) (discussing 502(a) of ERISA), the Cigarette
Labeling and Advertising Act is barren of alternative remedies. The Act merely
empowers the Federal Trade Commission to regulate unfair or deceptive
advertising practices (15 U.S.C. 1336), establishes minimal criminal penalties
(misdemeanor and fine not to exceed $10,000) for violations of the Act's
provisions ( 1338), and authorizes federal courts, upon the Government's
application, to enjoin violations of the Act ( 1339). Unlike the Court, I am
unwilling to believe that Congress, without any mention of state common-law
damages actions or of its intention dramatically to expand the scope of federal
pre-emption, would have eliminated the only means of judicial recourse for
those injured by cigarette manufacturers' unlawful conduct.

88

Thus, not only does the plain language of the 1969 Act fail clearly to require
pre-emption of petitioner's state common-law damages claims, but there is no
suggestion in the legislative history that Congress intended to expand the scope
of the pre-emption provision in the drastic manner that the Court attributes to it.
Our obligation to infer pre-emption only where Congress' intent is clear and
manifest mandates the conclusion that state common-law damages actions are
not pre-empted by the 1969 Act.6

III
89

Stepping back from the specifics of the Court's pre-emption analysis to view
the result the Court ultimately reaches, I am further disturbed. Notwithstanding

the Court's ready acknowledgement that " '[t]he purpose of Congress is the
ultimate touchstone' of pre-emption analysis," ante, at 516 (quoting Malone v.
White Motor Corp., 435 U.S. 497, 504, 98 S.Ct. 1185, 1190, 55 L.Ed.2d 443
(1978)), the Court proceeds to create a crazy quilt of pre-emption from among
the common-law claims implicated in this case, and in so doing reaches a result
that Congress surely could not have intended.
90

The most obvious problem with the Court's analysis is its frequent shift in the
level of generality at which it examines the individual claims. For example, the
Court states that fraudulent misrepresentation claims (at least those involving
false statements of material fact in advertisements) are "not predicated on a duty
'based on smoking and health' but rather on a more general obligationthe duty
not to deceive," and therefore are not pre-empted by 5(b) of the 1969 Act.
Ante, at 528-529. Yet failure to warn claimswhich could just as easily be
described as based on a "more general obligation" to inform consumers of
known risksimplicitly are found to be "based on smoking and health" and are
declared pre-empted. See ante, at 524. The Court goes on to hold that express
warranty claims are not pre-empted because the duty at issue is undertaken by
the manufacturer and is not "imposed under State law." Ante, at 525. Yet, as the
Court itself must acknowledge, "the general duty not to breach warranties arises
under state law," ibid. (emphasis added); absent the State's decision to penalize
such behavior through the creation of a common-law damages action, no
warranty claim would exist.

91

In short, I can perceive no principled basis for many of the Court's asserted
distinctions among the common-law claims, and I cannot believe that Congress
intended to create such a hodge-podge of allowed and disallowed claims when
it amended the pre-emption provision in 1970. Although the Court
acknowledges that 5(b) fails to "indicate that any familiar subdivision of
common law claims is or is not pre-empted," ante, at 523, it ignores the
simplest and most obvious explanation for the statutory silence: that Congress
never intended to displace state common-law damages claims, much less to cull
through them in the manner the Court does today. I can only speculate as to the
difficulty lower courts will encounter in attempting to implement the Court's
decision.

IV
92

By finding federal pre-emption of certain state common-law damages claims,

the Court today eliminates a critical component of the States' traditional ability
to protect the health and safety of their citizens. Yet such a radical readjustment
of federal-state relations is warranted under this Court's precedents only if there

is clear evidence that Congress intended that result. Because I believe that
neither version of the Federal Cigarette Labeling and Advertising Act
evidences such a clear congressional intent to pre-empt state common-law
damages actions, I respectfully dissent from parts V and VI of the Court's
opinion.
93

* The Court's threshold description of the law of pre-emption is accurate

enough: Though we generally " 'assum[e] that the historic police powers of the
States [are] not to be superseded by . . . Federal Act unless that [is] the clear and
manifest purpose of Congress,' " ante, at 516 (quoting Rice v. Santa Fe
Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947),
we have traditionally not thought that to require express statutory text. Where
state law is in actual conflict with federal law, see, e.g., Pacific Gas & Elec. Co.
v. Energy Resources Conservation and Development Comm'n, 461 U.S. 190,
204, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983), or where it "stands as an
obstacle to the accomplishment and execution of the full purposes and
objectives of Congress," Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399,
404, 85 L.Ed. 581 (1941), or even where the nature of Congress's regulation, or
its scope, convinces us that "Congress left no room for the States to supplement
it," Rice, supra, 331 U.S., at 230, 67 S.Ct., at 1152, we have had no difficulty
declaring that state law must yield. The ultimate question in each case, as we
have framed the inquiry, is one of Congress's intent, as revealed by the text,
structure, purposes, and subject matter of the statutes involved. See, e.g.,
English v. General Elec. Co., 496 U.S. 72, 78-79, 110 S.Ct. 2270, 2274-2275,
110 L.Ed.2d 65 (1990); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 95, 103
S.Ct. 2890, 2898, 77 L.Ed.2d 490 (1983).

94

The Court goes beyond these traditional principles, however, to announce two
new ones. First, it says that express pre-emption provisions must be given the
narrowest possible construction. This is in its view the consequence of our oftrepeated assumption that, absent convincing evidence of statutory intent to preempt, " 'the historic police powers of the States [are] not to be superseded,' " see
ante, at 516. But it seems to me that assumption dissolves once there is
conclusive evidence of intent to pre-empt in the express words of the statute
itself, and the only remaining question is what the scope of that pre-emption is
meant to be. Thereupon, I think, our responsibility is to apply to the text
ordinary principles of statutory construction.

95

That is precisely what our express pre-emption cases have done. Less than a
month ago, in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct.
2031, 119 L.Ed.2d 157 (1992), we held that the Airline Deregulation Act's
provision pre-empting state laws "relating to [airline] rates, routes, or services,"

49 U.S.C.App. 1305(a)(1), was broad enough to reach state fare advertising

regulations despite the availability of plausible limiting constructions. We made
no mention of any "plain statement" rule, or rule of narrow construction, but
applied the usual " 'assumption that the ordinary meaning of [the statutory]
language accurately expresses the legislative purpose. ' " Morales, supra, at
383, 112 S.Ct., at 2036 (quoting FMC Corp. v. Holliday, 498 U.S. 52, 57, 111
S.Ct. 403, 407, 112 L.Ed.2d 356 (1990)) (emphasis added). And last Term, in
Norfolk & Western R. Co. v. American Train Dispatchers Ass'n, 499 U.S. 117,
111 S.Ct. 1156, 113 L.Ed.2d 95 (1991), we interpreted an express preemption
provision broadly despite the fact that a well-respected canon of statutory
construction supported a narrower reading. See id., at 129, 111 S.Ct., at 1163;
id., at 136, 111 S.Ct., at 1167-1168 (STEVENS, J., dissenting). We said not a
word about a "presumption against . . . preemption," ante, at 518, that was to be
applied to construction of the text.
96

In light of our willingness to find pre-emption in the absence of any explicit

statement of pre-emptive intent, the notion that such explicit statements, where
they exist, are subject to a "plain-statement" rule is more than somewhat odd.
To be sure, our jurisprudence abounds with rules of "plain statement," "clear
statement," and "narrow construction" designed variously to ensure that, absent
unambiguous evidence of Congress's intent, extraordinary constitutional powers
are not invoked, or important constitutional protections eliminated, or
seemingly inequitable doctrines applied. See, e.g., United States v. Mitchell,
445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980) (waivers of
federal sovereign immunity must be "unequivocally expressed"); Will v.
Michigan Dept. of State Police, 491 U.S. 58, 65, 109 S.Ct. 2304, 2308, 105
L.Ed.2d 45 (1989) (clear statement required to compel States to entertain
damages suits against themselves in state courts); Atascadero State Hospital v.
Scanlon, 473 U.S. 234, 243, 105 S.Ct. 3142, 3147, 87 L.Ed.2d 171 (1985)
(abrogation of state sovereign immunity must be expressed "in unmistakable
language"). But none of those rules exists alongside a doctrine whereby the
same result so prophylactically protected from careless explicit provision can
be achieved by sheer implication, with no express statement of intent at all.
That is the novel regime the Court constructs today.

97

The results seem odder still when one takes into account the second new rule
that the Court announces: "When Congress has considered the issue of preemption and has included in the enacted legislation a provision explicitly
addressing that issue, . . . we need only identify the domain expressly preempted by [that provision]." Ante, at 517. Once there is an express pre-emption
provision, in other words, all doctrines of implied pre-emption are eliminated.
This proposition may be correct insofar as implied "field" pre-emption is

concerned: The existence of an express pre-emption provision tends to

contradict any inference that Congress intended to occupy a field broader than
the statute's express language defines. However, with regard to implied
"conflict" pre-emptioni.e., where state regulation actually conflicts with
federal law, or where state regulation "stands as an obstacle to the
accomplishment and execution" of Congress's purposes, Hines, supra, 312
U.S., at 67, 61 S.Ct., at 404the Court's second new rule works mischief. If
taken seriously, it would mean, for example, that if a federal consumer
protection law provided that no state agency or court shall assert jurisdiction
under state law over any workplace safety issue with respect to which a federal
standard is in effect, then a state agency operating under a law dealing with a
subject other than workplace safety (e.g., consumer protection) could impose
requirements entirely contrary to federal lawforbidding, for example, the use
of certain safety equipment that federal law requires. To my knowledge, we
have never expressed such a rule before, and our prior cases are inconsistent
with it, see, e.g., Jones v. Rath Packing Co., 430 U.S. 519, 540-543, 97 S.Ct.
1305, 1317-1318, 51 L.Ed.2d 604 (1977). When this second novelty is
combined with the first, the result is extraordinary: The statute that says
anything about pre-emption must say everything; and it must do so with great
exactitude, as any ambiguity concerning its scope will be read in favor of
preserving state power. If this is to be the law, surely only the most sporting of
congresses will dare to say anything about pre-emption.
98

II

The proper rule of construction for express pre-emption provisions is, it seems
to me, the one that is customary for statutory provisions in general: Their
language should be given its ordinary meaning. FMC Corp. v. Holliday, supra,
498 U.S., at ----, 111 S.Ct., at 407; Shaw v. Delta Air Lines, 463 U.S., at 97,
103 S.Ct., at 2900. When this suggests that the pre-emption provision was
intended to sweep broadly, our construction must sweep broadly as well. See,
e.g., id., at 96-97, 103 S.Ct., at 2899-2900. And when it bespeaks a narrow
scope of pre-emption, so must our judgment. See, e.g., Fort Halifax Packing
Co., Inc. v. Coyne, 482 U.S. 1, 7-8, 107 S.Ct. 2211, 2215-2216, 96 L.Ed.2d 1
(1987). Applying its niggardly rule of construction, the Court finds (not
surprisingly) that none of petitioner's claims common-law failure to warn,
breach of express warranty, and intentional fraud and misrepresentationis
pre-empted under 5(b) of the 1965 Act. And save for the failure-to-warn
claims, the Court reaches the same result under 5(b) of the 1969 Act. I think
most of that is error. Applying ordinary principles of statutory construction, I
believe petitioner's failure-to-warn claims are pre-empted by the 1965 Act, and
all his common-law claims by the 1969 Act.

99

With much of what the plurality says in Part V of its opinion I agreethat "the
language of the [1969] Act plainly reaches beyond [positive] enactments," ante,
at 521; that the general tort-law duties petitioner invokes against the cigarette
companies can, as a general matter, impose "requirement[s] or prohibition[s]"
within the meaning of 5(b) of the 1969 Act, ibid.; and that the phrase "State
law" as used in that provision embraces state common law, ante, at 523. I take
issue with the plurality, however, on its application of these general principles
to the present case. Its finding that they produce only partial pre-emption of
petitioner's common-law claims rests upon three misperceptions that I shall
discuss in turn, under headings indicating the erroneously permitted claims to
which they apply.

A.
Pre-1969 Failure-to-Warn Claims
100 According to the Court,1 5(b) of the 1965 Act "is best read as having
superseded only positive enactments by legislatures or administrative agencies
that mandate particular warning labels," ante, at 518-519 (emphasis added). In
essence, the Court reads 5(b)'s critical language "No statement relating to
smoking and health shall be required" to mean "No particular statement
relating to smoking and health shall be required." The Court reasons that
because common-law duties do not require cigarette manufacturers to include
any particular statement in their advertising, but only some statement warning
of health risks, those duties survive the 1965 Act. I see no basis for this element
of "particularity." To require a warning about cigarette health risks is to require
a "statement relating to smoking and health." If the "presumption against . . .
pre-emption," ante, at 518, requires us to import limiting language into the
1965 Act, I do not see why it does not require us to import similarly limiting
language into the 1969 Actso that a "requirement . . . based on smoking and
health . . . with respect to advertising" means only a specific requirement, and
not just general, noncigarette-specific duties imposed by tort law. The divergent
treatment of the 1965 Act cannot be justified by the Act's statement of
purposes, which, as the Court notes, expresses concern with "diverse,
nonuniform, and confusing cigarette labeling and advertising regulations," 15
U.S.C. 1331(2) (emphasis added). That statement of purposes was left
untouched by Congress in 1969, and thus should be as restrictive of the scope
of the later 5(b) as the Court believes it is of the scope of the earlier one.2
101 To the extent petitioner's claims are premised specifically on respondents'
failure (during the period in which the 1965 Act was in force) to include in their
advertising any statement relating to smoking and health, I would find those

claims, no less than the similar post-1969 claims, pre-empted. In addition, for
reasons I shall later explain, see infra, Part III, I would find pre-emption even of
those claims based on respondents' failure to make health-related statements to
consumers outside their advertising. However, since 5(b) of the 1965 Act
enjoins only those laws that require "statement[s]" in cigarette advertising,
those of petitioner's claims that, if accepted, would penalize statements
voluntarily made by the cigarette companies must be deemed to survive. As
these would appear to include petitioner's breach-of-express-warranty and
intentional fraud and misrepresentation claims, I concur in the Court's judgment
in this respect.
B
102 Post-1969 Breach-of-Express-Warranty Claims
103 In the context of this case, petitioner's breach-of-express-warranty claim
necessarily embodies an assertion that respondents' advertising and promotional
materials made statements to the effect that cigarette smoking is not unhealthy.
Making such statements civilly actionable certainly constitutes an advertising
"requirement or prohibition . . . based on smoking and health." The plurality
appears to accept this, but finds that liability for breach of express warranty is
not "imposed under State law" within the meaning of 5(b) of the 1969 Act. "
[R]ather," it says, the duty "is best understood as undertaken by the
manufacturer itself." Ante, at 526. I cannot agree.
104 When liability attaches to a particular promise or representation, it attaches by
law. For the making of a voluntary promise or representation, no less than for
the commission of an intentional tort, it is the background law against which
the act occurs, and not the act itself, that supplies the element of legal
obligation. See Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 429, 54
S.Ct. 231, 236, 78 L.Ed. 413 (1934); N.J.Stat.Ann. 12A:2-313(1), 12A:2714, and 12A:2-715 (West 1962) (providing for enforcement of express
warranties). Of course, New Jersey's law of express warranty attaches legal
consequences to the cigarette manufacturer's voluntary conduct in making the
warranty, and in that narrow sense, I suppose, the warranty obligation can be
said to be "undertaken by the manufacturer." But on that logic it could also be
said that the duty to warn about the dangers of cigarettes is undertaken
voluntarily by manufacturers when they choose to sell in New Jersey; or, more
generally, that any legal duty imposed on volitional behavior is not one imposed
by law.
105 The plurality cites no authority for its curious view, which is reason enough to

doubt it. In addition, however, we rejected this very argument last Term in
Norfolk & Western R. v. American Train Dispatchers Assn., where we
construed a federal exemption "from the antitrust laws and from all other law,"
49 U.S.C. 11341(a), to include an exemption from contract obligations. We
observed, in a passage flatly inconsistent with the plurality's analysis today, that
"[a] contract has no legal force apart from the law that acknowledges its
binding character." 499 U.S., at ----, 111 S.Ct., at 1164. Compare id., at ----,
111 S.Ct., at 1168-1169 (STEVENS, J., dissenting). I would find petitioner's
claim for breach of express warranty pre-empted by 5(b) of the 1969 Act.
C
106 Post-1969 Fraud and Misrepresentation Claims
107 According to the plurality, at least one of petitioner's intentional fraud and
misrepresentation claims survives 5(b) of the 1969 Act because the commonlaw duty underlying that claim is not "based on smoking and health" within the
meaning of the Act. See ante, at 528-529. If I understand the plurality's
reasoning, it proceeds from the implicit assumption that only duties deriving
from laws that are specifically directed to "smoking and health," or that are
uniquely crafted to address the relationship between cigarette companies and
their putative victims, fall within 5(b) of the Act, as amended. Given that
New Jersey's tort-law "duty not to deceive," ibid., is a general one, applicable to
all commercial actors and all kinds of commerce, it follows from this
assumption that 5(b) does not pre-empt claims based on breaches of that duty.
108 This analysis is suspect, to begin with, because the plurality is unwilling to
apply it consistently. As Justice BLACKMUN cogently explains, see ante, at
543 (opinion concurring in part and dissenting in part), if New Jersey's
common-law duty to avoid false statements of material factas applied to the
cigarette companies' behavioris not "based on smoking and health," the same
must be said of New Jersey's common-law duty to warn about a product's
dangers. Each duty transcends the relationship between the cigarette companies
and cigarette smokers; neither duty was specifically crafted with an eye toward
"smoking and health." None of the arguments the plurality advances to support
its distinction between the two is persuasive. That Congress specifically
preserved, in both the 1965 and 1969 Acts, the Federal Trade Commission's
authority to police deceptive advertising practices, see 5(c) of the 1965 Act;
7(b) of the 1969 Act; ante, at 529, does not suggest that Congress intended
comparable state authority to survive 5(b). In fact, at least in the 1965 Act
(which generally excluded federal as well as state regulation), the exemption
suggested that 5(b) was broad enough to reach laws governing fraud and

misrepresentation. And it is not true that the States' laws governing fraud and
misrepresentation in advertising impose identical legal standards, whereas their
laws "concerning the warning necessary to render a product 'reasonably safe' "
are quite diverse, ibid. The question whether an ad featuring a glamorous,
youthful smoker with pearly-white teeth is "misrepresentative" would almost
certainly be answered differently from State to State. See ante, at 527
(discussing FTC's initial cigarette advertising rules).
109 Once one is forced to select a consistent methodology for evaluating whether a
given legal duty is "based on smoking and health," it becomes obvious that the
methodology must focus not upon the ultimate source of the duty (e.g., the
common law) but upon its proximate application. Use of the "ultimate source"
approach (i.e., a legal duty is not "based on smoking and health" unless the law
from which it derives is directed only to smoking and health) would gut the
statute, inviting the very "diverse, nonuniform, and confusing cigarette . . .
advertising regulations" Congress sought to avoid. 15 U.S.C. 1331(2). And
the problem is not simply the common law: Requirements could be imposed by
state executive agencies as well, so long as they were operating under a general
statute authorizing their supervision of "commercial advertising" or "unfair
trade practices." New Jersey and many other States have such statutes already
on the books. E.g., N.J.Stat.Ann. 56:8-1 et seq. (West 1989);
N.Y.Gen.Bus.Law 349 et seq. (McKinney 1988 and Supp.1992); Texas Bus.
& Com.Code Ann. 17.01 et seq. (1987 and Supp.1992).
110 I would apply to all petitioner's claims what I have called a "proximate
application" methodology for determining whether they invoke duties "based
on smoking and health"I would ask, that is, whether, whatever the source of
the duty, it imposes an obligation in this case because of the effect of smoking
upon health. On that basis, I would find petitioner's failure-to-warn and
misrepresentation claims both pre-empted.
III
111 Finally, there is an additional flaw in the plurality's opinion, a systemic one that
infects even its otherwise correct disposition of petitioner's post-1969 failure-towarn claims. The opinion states that, since 5(b) proscribes only
"requirement[s] or prohibition[s] . . . 'with respect to . . . advertising or
promotion,' " state-law claims premised on the failure to warn consumers
"through channels of communication other than advertising or promotion" are
not covered. Ante, at 528 (emphasis added); see ante, at 524. This preserves not
only the (somewhat fanciful) claims based on duties having no relation to the
advertising and promotion (one could imagine a law requiring manufacturers to

disclose the health hazards of their products to a state public-health agency), but
also claims based on duties that can be complied with by taking action either
within the advertising and promotional realm or elsewhere. Thus, ifas
appears to be the case in New Jerseya State's common law requires
manufacturers to advise consumers of their products' dangers, but the law is
indifferent as to how that requirement is met (i.e., through "advertising or
promotion" or otherwise), the plurality would apparently be unprepared to find
pre-emption as long as the jury were instructed not to zero in on deficiencies in
the manufacturers' advertising or promotion.
112 I think that is inconsistent with the law of pre-emption. Advertising and
promotion are the normal means by which a manufacturer communicates
required product warnings to prospective customers, and by far the most
economical means. It is implausible that Congress meant to save cigarette
companies from being compelled to convey such data to consumers through
that means, only to allow them to be compelled to do so through means more
onerous still. As a practical matter, such a "tell-the-consumers-any-way-youwish" law compels manufacturers to relinquish the advertising and promotion
immunity accorded them by the Act. The test for pre-emption in this setting
should be one of practical compulsion, i.e., whether the law practically compels
the manufacturers to engage in behavior that Congress has barred the States
from prescribing directly. Cf., e.g., Ray v. Atlantic Richfield Co., 435 U.S. 151,
173, n. 25, 98 S.Ct. 988, 1002, n. 25, 55 L.Ed.2d 179 (1978). Though the
hypothetical law requiring disclosure to a state regulatory agency would seem
to survive this test, I would have no difficulty finding that test met with respect
to state laws that require the cigarette companies to meet general standards of
"fair warning" regarding smoking and health.
113 * * * * * *
114 Like Justice BLACKMUN, "I can only speculate as to the difficulty lower
courts will encounter in attempting to implement [today's] decision." Ante, at
543-544 (opinion concurring in part and dissenting in part). Must express preemption provisions really be given their narrowest reasonable construction (as
the Court says in Part III), or need they not (as the plurality does in Part V)?
Are courts to ignore all doctrines of implied pre-emption whenever the statute
at issue contains an express pre-emption provision, as the Court says today, or
are they to continue to apply them, as we have in the past? For pre-emption
purposes, does "state law" include legal duties imposed on voluntary acts (as
we held last Term in Norfolk & Western R. Co.), or does it not (as the plurality
says today)? These and other questions raised by today's decision will fill the
law-books for years to come. A disposition that raises more questions than it

answers does not serve the country well.

See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287,
50 L.Ed. 499.

Public Health Cigarette Smoking Act of 1969, Pub.L. 91-222, 84 Stat. 87, as
amended, 15 U.S.C. 1331-1340. In 1984, Congress amended the statute to
require four more explicit warnings, used on a rotating basis. See
Comprehensive Smoking Education Act, Pub.L. 98-474, 98 Stat. 2201. Because
petitioner's claims arose before 1984, neither party relies on this later Act.

The Court of Appeals' analysis was initially set forth in Cipollone v. Liggett
Group, Inc., 789 F.2d 181 (CA3 1986). Other federal courts have adopted a
similar analysis. See Pennington v. Vistron Corp., 876 F.2d 414 (CA5 1989);
Roysdon v. R.J. Reynolds Tobacco Co., 849 F.2d 230 (CA6 1988); Stephen v.
American Brands, Inc., 825 F.2d 312 (CA11 1987); Palmer v. Liggett Group,
Inc., 825 F.2d 620 (CA1 1987).

Forster v. R.J. Reynolds Tobacco Co., 437 N.W.2d 655 (Minn.1989); Dewey v.
R.J. Reynolds Tobacco Co., 121 N.J. 69, 577 A.2d 1239 (1990).

The court explained:

"However, the existence of the present federally mandated warning does not
prevent an individual from claiming that the risks of smoking are greater than
the warning indicates, and that therefore such warning is inadequate. The court
recognizes that it will be extremely difficult for a plaintiff to prove that the
present warning is inadequate to inform of the dangers, whatever they may be.
However, the difficulty of proof cannot preclude the opportunity to be heard,
and affording that opportunity will not undermine the purposes of the Act." 593
F.Supp., at 1148.

"It is the policy of the Congress, and the purpose of this chapter, to establish a
comprehensive Federal program to deal with cigarette labeling and advertising
with respect to any relationship between smoking and health, whereby
"(1) the public may be adequately informed that cigarette smoking may be
hazardous to health by inclusion of a warning to that effect on each package of
cigarettes; and
"(2) commerce and the national economy may be (A) protected to the
maximum extent consistent with this declared policy and (B) not impeded by

diverse, nonuniform, and confusing cigarette labeling and advertising

regulations with respect to any relationship between smoking and health." 15
U.S.C. 1331 (1982 ed.).
6

We are not presented with any question concerning these claims.

See, e.g., Brown & Williamson Tobacco Corp., 56 F.T.C. 956 (1960); Liggett
& Myers Tobacco Co., 55 F.T.C. 354 (1958); Philip Morris & Co., Ltd., 51
F.T.C. 857 (1955); R.J. Reynolds Tobacco Co., 48 F.T.C. 682 (1952); London
Tobacco Co., 36 F.T.C. 282 (1943).

Pub.L. 89-92, 79 Stat. 282, as amended, 15 U.S.C. 1331-1340.

However, 5(c) of the Act expressly preserved "the authority of the Federal
Trade Commission with respect to unfair or deceptive acts or practices in the
advertising of cigarettes." 79 Stat. 283.

10

See n. 5, supra.

11

For example, the California State Senate passed a total ban on both print and
electronic cigarette advertisements. "California Senate Votes Ban On Cigarette
Advertising," Washington Post, June 26, 1969, p. A9.

12

Pub.L. 91-222, 84 Stat. 87, as amended, 15 U.S.C. 1331-1340.

13

In its express pre-emption analysis, the court did not distinguish between the
pre-emption provisions of the 1965 and 1969 Acts; it relied solely on the latter,
apparently believing that the 1969 provision was at least as broad as the 1965
provision. The court's ultimate ruling that petitioner's claims were impliedly
pre-empted effective January 1, 1966, reflects the fact that the 1969 Act did not
alter the statement of purpose in 2, which was critical to the court's implied
pre-emption analysis.

14

Pub.L. 99-252, 100 Stat. 30, as codified, 15 U.S.C. 4401-4408.

15

Cf. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied,
396 U.S. 842, 90 S.Ct. 50, 51, 24 L.Ed.2d 93 (1969) (holding that 1965 Act did
not pre-empt FCC's fairness policy as applied to cigarette advertising).

16

Justice SCALIA takes issue with our narrow reading of the phrase "No
statement." His criticism, however, relies solely on an interpretation of those
two words, artificially severed from both textual and legislative context. As
demonstrated above, the phrase "No statement" in 5(b) refers to the similar
phrase in 5(a), which refers in turn to 4, which itself sets forth a particular

statement. This context, combined with the regulatory setting in which

Congress acted, establishes that a narrow reading of the phrase "No statement"
is appropriate.
17

This interpretation of the 1965 Act appears to be consistent with respondents'

contemporaneous understanding of the Act. Although respondents have
participated in a great deal of litigation relating to cigarette use beginning in the
1950's, it appears that this case is the first in which they have raised 5 as a
pre-emption defense.

18

See Brief for Petitioner 23-24; Brief for Respondents 21-23.

19

As noted above, the 1965 Act's statement of purpose ( 2) suggested that

Congress was concerned primarily with "regulations" positive enactments,
rather than common law damages actions. Although the 1969 Act did not
amend 2, we are not persuaded that the retention of that portion of the 1965
Act is a sufficient basis for rejecting the plain meaning of the broad language
that Congress added to 5(b).

20

Brief for Petitioner 20.

21

Brief for Respondents 14.

22

Petitioner makes much of the fact that Congress did not expressly include
common law within 5's pre-emptive reach, as it has in other statutes. See, e.g.,
29 U.S.C. 1144(c)(1); 12 U.S.C. 1715z-17(d). Respondents make much of
the fact that Congress did not include a savings clause preserving common law
claims, again, as it has in other statutes. See, e.g., 17 U.S.C. 301. Under our
analysis of 5, these omissions make perfect sense: Congress was neither preempting nor saving common law as a wholeit was simply pre-empting
particular common law claims, while saving others.

23

Thus it is that express warranty claims are said to sound in contract rather than
in tort. Compare Black's Law Dictionary 1489 (6th ed. 1990) (defining "tort":
"There must always be a violation of some duty . . . and generally such duty
must arise by operation of law and not by mere agreement of the parties" ) with
id., at 322 (defining "contract": "An agreement between two . . . persons which
creates an obligation" ).

24

Justice SCALIA contends that because the general duty to honor express
warranties arises under state law, every express warranty obligation is a
"requirement . . . imposed under State law," and that, therefore, the Act preempts petitioner's express warranty claim. Justice SCALIA might be correct if
the Act pre-empted "liability " imposed under state law (as he suggests, post, at

----); but instead the Act expressly pre-empts only a "requirement or prohibition
" imposed under state law. That a "contract has no legal force apart from the
[state] law that acknowledges its binding character," Norfolk & Western
Railway Co. v. American Train Dispatchers Assn., 499 U.S. ----, ----, 111 S.Ct.
1156, 1164, 113 L.Ed.2d 95 (1991), does not mean that every contractual
provision is "imposed under State law." To the contrary, common
understanding dictates that a contractual requirement, although only
enforceable under state law, is not "imposed" by the state, but rather is
"imposed" by the contracting party upon itself.
25

The District Court stated that this claim "consists of the following elements: 1)
a material misrepresentation of . . . fact [by false statement or concealment]; 2)
knowledge of the falsity . . .; 3) intent that the misrepresentation be relied upon;
4) justifiable reliance . . .; 5) resultant damage." 683 F.Supp. 1487, 1499
(N.J.1988).

26

The Senate Report emphasized that the "preemption of regulation or prohibition

with respect to cigarette advertising is narrowly phrased to preempt only State
action based on smoking and health. It would in no way affect the power of any
State . . . with respect to the taxation or the sale of cigarettes to minors, or the
prohibition of smoking in public buildings, or similar police regulations."
S.Rep. No. 91-566, p. 12 (emphasis supplied).

27

Both Justice BLACKMUN and Justice SCALIA challenge the level of

generality employed in our analysis. Justice BLACKMUN contends that, as a
matter of consistency, we should construe failure-to-warn claims not as based
on smoking and health, but rather as based on the broader duty "to inform
consumers of known risks." Post, at 543. Justice SCALIA contends that, again
as a matter of consistency, we should construe fraudulent misrepresentation
claims not as based on a general duty not to deceive but rather as "based on
smoking and health." Admittedly, each of these positions has some conceptual
attraction. However, our ambition here is not theoretical elegance, but rather a
fair understanding of congressional purpose.
To analyze failure to warn claims at the highest level of generality (as Justice
BLACKMUN would have us do) would render the 1969 amendments almost
meaningless and would pay too little respect to Congress' substantial reworking
of the Act. On the other hand, to analyze fraud claims at the lowest level of
generality (as Justice SCALIA would have us do) would conflict both with the
background presumption against preemption and with legislative history that
plainly expresses an intent to preserve the "police regulations" of the States. See
supra, n. 25.

Conspiracy to Misrepresent or Conceal Material Facts

28

The District Court described the evidence of conspiracy as follows:

"Evidence presented by [petitioner], particularly that contained in the
documents of [respondents] themselves, indicates. . . . that the industry of
which these [respondents] were and are a part entered into a sophisticated
conspiracy. The conspiracy was organized to refute, undermine, and neutralize
information coming from the scientific and medical community. . . ." 683
F.Supp., at 1490.
Justice BLACKMUN, with whom Justice KENNEDY and Justice SOUTER
join, concurring in part, concurring in the judgment in part, and dissenting in
part.
* The Court today would craft a compromise position concerning the extent to
which federal law pre-empts persons injured by cigarette manufacturers'
unlawful conduct from bringing state common-law damages claims against
those manufacturers. I, however, find the Court's divided holding with respect
to the original and amended versions of the federal statute entirely
unsatisfactory. Our precedents do not allow us to infer a scope of pre-emption
beyond that which clearly is mandated by Congress' language. In my view,
neither version of the federal legislation at issue here provides the kind of
unambiguous evidence of congressional intent necessary to displace state
common-law damages claims. I therefore join parts I, II, III, and IV of the
Court's opinion, but dissent from parts V and VI.
A.
I agree with the Court's exposition, in part III of its opinion, of the underlying
principles of pre-emption law, and in particular with its recognition that the preemptive scope of the Federal Cigarette Labeling and Advertising Act (the 1965
Act) and the Public Health Cigarette Smoking Act of

The Court construes congressional inroads on state power narrowly in other

contexts, as well. For example, the Court repeatedly has held that, in order to
waive a State's sovereign immunity from suit in federal court, Congress must
make its intention "unmistakably clear in the language of the statute."
Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242, 105 S.Ct. 3142, 3147,
87 L.Ed.2d 171 (1985); Dellmuth v. Muth, 491 U.S. 223, 228, 109 S.Ct. 2397,
2400, 105 L.Ed.2d 181 (1989).

Congress, in fact, has expressly allowed common-law damages actions to

survive while pre-empting other, more direct forms of state regulation. See,
e.g., Comprehensive Smokeless Tobacco Health Education Act of 1986, 7,
100 Stat. 34, 15 U.S.C. 4401 et seq.; Occupational Safety and Health Act of
1970, 84 Stat. 1590, 29 U.S.C. 651 et seq., as construed in Gade v. National
Solid Wastes Mgmt. Assn., --- U.S. ----, 112 S.Ct. 2374, --- L.Ed.2d ---- (1992).
3

The Court has explained that Garmon, in which a state common-law damages
award was found to be pre-empted by the National Labor Relations Act,
involved a special "presumption of federal pre-emption" relating to the primary
jurisdiction of the National Labor Relations Board. See Brown v. Hotel
Employees, 468 U.S. 491, 502, 104 S.Ct. 3179, 3185, 82 L.Ed.2d 373 (1984);
English v. General Electric Co., 496 U.S. 72, 86-87, n. 8, 110 S.Ct. 2270, 2279,
n. 8, 110 L.Ed.2d 65 (1990).

The Court in Silkwood declined to find state punitive damages awards preempted by federal nuclear safety laws, explaining: "It may be that the award of
damages based on the state law of negligence or strict liability is regulatory in
the sense that a nuclear plant will be threatened with damages liability if it does
not conform to state standards, but that regulatory consequence was something
that Congress was quite willing to accept." 464 U.S., at 256, 104 S.Ct., at 625.
Although the Court has noted that the decision in Silkwood was based in
"substantial part" on affirmative evidence in the legislative history suggesting
that Congress did not intend to include common-law damages remedies within
the pre-empted field, see English, 496 U.S., at 86, 110 S.Ct., at 2279,
Silkwood's discussion of the regulatory effects of the common law is instructive
and has been relied on in subsequent cases. See, e.g., Goodyear, 486 U.S., at
186, 108 S.Ct., at 1712.

In the one reported case construing the scope of pre-emption under the 1965
Act, Banzhaf v. FCCa case of which Congress was aware, see S.Rep., p. 7
the Court of Appeals for the District of Columbia Circuit used the term
"affirmative requirements" to describe 5(b)'s ban on "statement[s]." 132
U.S.App.D.C. 14, 22, 405 F.2d 1082, 1090 (1968), cert. denied sub nom.
Tobacco Institute, Inc. v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93
(1969). It is but a small step from "affirmative requirement" to the converse,
"negative requirement" ("prohibition"), and, from there, to the single
explanatory phrase, "requirement or prohibition."

Every Court of Appeals to consider the question, including the Third Circuit in
an earlier opinion in this case, similarly has concluded that state common-law
damages claims are not expressly pre-empted under the 1969 Act. See, e.g.,
Cipollone v. Liggett Group, Inc., 789 F.2d 181, 185-186 (CA3 1986), cert.
denied, 479 U.S. 1043, 107 S.Ct. 907, 93 L.Ed.2d 857 (1987); Pennington v.

Vistron Corp., 876 F.2d 414, 418 (CA5 1989); Roysdon v. R.J. Reynolds
Tobacco Co., 849 F.2d 230, 234 (CA6 1988); Palmer v. Liggett Group, Inc.,
825 F.2d 620, 625 (CA1 1987). See also Dewey v. R.J. Reynolds Tobacco Co.,
121 N.J. 69, 85, 577 A.2d 1239, 1247 (1990); Forster v. R.J. Reynolds Tobacco
Co., 437 N.W.2d 655, 658 (Minn.1989).
Justice SCALIA, with whom Justice THOMAS joins, concurring in the
judgment in part and dissenting in part.
Today's decision announces what, on its face, is an extraordinary and
unprecedented principle of federal statutory construction: that express preemption provisions must be construed narrowly, "in light of the presumption
against the pre-emption of state police power regulations." Ante, at 518. The
life-span of this new rule may have been blessedly brief, inasmuch as the
opinion that gives it birth in Part I proceeds to ignore it in Part V, by adjudging
at least some of the common-law tort claims at issue here pre-empted. In my
view, there is no merit to this newly crafted doctrine of narrow construction.
Under the Supremacy Clause, U.S. Const., Art. VI, cl. 2, our job is to interpret
Congress's decrees of pre-emption neither narrowly nor broadly, but in
accordance with their apparent meaning. If we did that job in the present case,
we would find, under the 1965 Act, pre-emption of the petitioner's failure-towarn claims; and under the 1969 Act, we would find pre-emption of the
petitioner's claims complete.
1

The plurality is joined by Justices BLACKMUN, KENNEDY, and SOUTER in

its analysis of the 1965 Act.

The Court apparently thinks that because 4 of the Act, imposing the federal
package-labeling requirement, "itself sets forth a particular statement," ante, at
519, n. 16, 5(b), the advertising pre-emption provision must be read to
proscribe only those state laws that compel the use of particular statements in
advertising. Besides being a complete non sequitur, this reasoning proves too
much: The similar prescription of a particular warning in the 1969 Act would
likewise require us to confine the pre-emptive scope of that later statute to
specific, prescriptive "requirement[s] or prohibition[s]" (which, I presume,
would not include tort-law obligations to warn consumers about product
dangers). And under both the 1965 and 1969 versions of the Act, the packagelabeling pre-emption provision of 5(a), no less than the advertising preemption provision of 5(b), would have to be limited to the prescription of
particular language, leaving the states free to impose general health-labeling
requirements. These results are obviously contrary to the Act's stated purposes.