Philip Morris USA Inc. v. Armand Fontaine, Individually and as Personal Representative of the Estate of Barbara Ellen Fontaine

The Federal Cigarette Labeling and Advertising Act preempts any “requirement or prohibition based on smoking and health … with respect to the advertising or promotion of … cigarettes” beyond those required by federal law. 15 U.S.C. §1334(b). In Cipollone v. Liggett Group, 505 U.S. 504 (1992), a plurality opined that whether a state-law claim imposes a requirement “based on” smoking and health turns on the scope of the claim’s “predicate” “legal duty.” Id. at 523-24. Invoking “the strong presumption against pre-emption,” the plurality concluded that the Labeling Act preempts only failure-to-warn and fraud-based warningneutralization claims—but not fraud claims based on a “general duty” “not to deceive.” Id. at 523, 528-29. The Court adopted the plurality’s test in Altria Group v. Good, 555 U.S. 70 (2008), again invoking the presumption to narrow the text. Justice Thomas— joined by the Chief Justice and Justices Scalia and Alito—dissented from that “atextual” and “unworkable” decision and warned that the Court “may” be “forced” to “revisit” it. Id. at 92, 112. Below, the Massachusetts Supreme Judicial Court applied Altria to affirm a fraud judgment based on Petitioner’s removal of additional, voluntary health warnings beyond those required by the Labeling Act from certain cigarette packages. The court acknowledged that liability for the same conduct would be preempted if asserted as a failure-to-warn claim. The questions presented are:

1. Whether, under Altria, simply re-labeling conduct that would support a failure-to-warn claim as a generic fraud claim is enough to escape preemption under the Labeling Act.

2. Whether Altria should be revisited and overruled.