Preemption Paradox

On behalf of her late husband, Mrs. Riegel asserted common law product liability claims against Medtronic in connection with the design and sale of its Evergreen Balloon Catheter, a Class III medical device that received premarket approval in 1994. The United States District Court for the Northern District of New York held that each of these causes of action was preempted by the MDA. The United States Court of Appeals for the Second Circuit affirmed the dismissal, as did the Supreme Court.

Section 360k of the MDA provides in relevant part:

[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement ' which is different from, or in addition to, any requirement applicable under this chapter to the device, and which relates to the safety or effectiveness of the device or to any other matter included in requirement applicable to the device under this chapter. 21 U.S.C. ' 360k(a) (emphasis supplied).

Lohr

Twelve years earlier, in Lohr, the Court unanimously concluded that the MDA did not preempt products-based common law claims implicating medical devices that were subject to the FDA's much less rigorous 510(k) “substantial equivalent” approval process. 518 U.S. at 493-94. However, Lohr left unanswered the question of whether the MDA would preempt claims implicating a medical device that had undergone premarket approval review and, more specifically: 1) whether the premarket approval process constitutes a “requirement” specific to a particular device; and 2) whether common law tort claims constitute a “requirement” that directly conflicts with the FDA's regulations concerning “safety” and “effectiveness.”

Answered Questions

In Riegel, the Court answered both questions in the affirmative. The Court concluded that, given the level of FDA scrutiny with respect to safety and efficacy brought to bear, the premarket approval process, particularly as compared with the 510(k) process, constitutes a device-specific “requirement” under the MDA. Riegel, 128 S. Ct. at 1006-07. In addition, the Court found that common law-imposed tort liability is also a “requirement” because “a liability award can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” Id. at 1009.

As a whole, the Court's opinion was generally well reasoned and not altogether surprising in light of the Court's dicta in Lohr. Moreover, while the decision sparked some protestations externally ' Sen. Edward Kennedy (D-MA) and Rep. Henry Waxman (D-CA), both of whom participated in the drafting of the MDA, asserted that the statute was never intended to preempt common law tort claims ' the Court seemed fairly well unified in its doctrinal approach as only Justice Ginsburg dissented. Ten months later, however, Altria revealed that deep fissures still divide the Court, even with respect to views on express preemption.

Altria Rejects ExpressPreemption Under the Labeling Act

In Altria, a putative class of Maine consumers asserted claims for fraudulent advertising under the Maine Unfair Trade Practice Act (“MUTPA”) against Altria Group and Philip Morris in connection with their sale of certain brands of “light” cigarettes. 129 S. Ct. at 541. As in a number of similar consumer fraud actions brought in other jurisdictions against “light” cigarette manufacturers, see, e.g., Watson v. Philip Morris Co., 127 S. Ct. 2301 (2007); Brown v. Brown & Williamson Tobacco Corp., 479 F.3d 383 (5th Cir. 2007); Price v. Philip Morris, Inc. 2005 Ill. LEXIS 2071, *1 (Ill. Dec. 15, 2005); Aspinall v. Philip Morris Co., 442 Mass. 381 (2004), the Altria plaintiffs did not allege that they suffered any personal injuries caused by smoking. Altria, 129 S. Ct. at 547. Instead, they asserted that the cigarette manufacturers knew consumer smoking behaviors are such that individuals often inhale as much tar and nicotine as “regular” cigarettes and that, by concealing this information, the cigarette manufacturers fraudulently marketed their “light” cigarettes as less harmful than “regular” cigarettes. Id. at 541-42.

Altria Group and Philip Morris moved for summary judgment on the grounds that the plaintiffs' claims under the MUTPA were preempted by the Federal Cigarette Labeling and Advertising Act (“Labeling Act”), which provides:

No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertisement or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this act. 15 U.S.C. ' 1334(b) (emphasis supplied).

The district court allowed the defendants' motion; however, on appeal, the First Circuit reversed the entry of summary judgment. Altria, 129 S. Ct. at 542. In a starkly divided 5 to 4 decision, the Court held that the Labeling Act did not expressly preempt the MUTPA. Id. at 551.

Cipollone Revisited

Like Riegel with Lohr, Altria's roots originate with Cipollone, and a brief review of Cipollone is useful for attempting to deconstruct Altria. In Cipollone, the plaintiff alleged that his mother contracted lung cancer as a result of smoking cigarettes sold by three different manufacturers, 505 U.S. at 508. The plaintiff further claimed that the manufacturers failed to adequately warn of the health effects of smoking and that they otherwise “neutralized” the impact of the federally mandated warning label through advertisements that tended to downplay the hazards of smoking. Id. at 510. In addition to these causes of action, the plaintiff asserted a claim for common law fraud, among others. Id.

In a sharply splintered opinion, the Court held that the Labeling Act expressly preempted the plaintiff's failure-to-warn claim as well as his “warning neutralization” claim. Id. at 530-31. Conversely, the Court held that the Labeling Act did not preempt the plaintiff's common law fraud claim. Justice Stevens wrote the opinion for the plurality, which was joined by Chief Justice Rehnquist, Justice White, and Justice O'Connor. As part of his analysis, Justice Stevens adopted a “predicate-duty” methodology for evaluating whether a particular claim under the Labeling Act should be preempted:

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 of prohibition based on smoking and health.” Id. at 523-24.

Applying this standard, the plurality concluded that Mr. Cipollone's failure-to-warn claim was preempted because the underlying duty ' “to provide a warning necessary to make a product safe” ' fundamentally implicated a “requirement” that was “based on safety and health.” Id. at 524. The plurality found that Mr. Cipollone's “warning neutralization” claim was also preempted because it was “inextricably related” to the plaintiff's failure-to-warn claim. Id. at 528. On the other hand, the plurality determined that the plaintiff's fraudulent misrepresentation claim was “not predicated on a duty 'based on smoking and health' but rather on a more general obligation ' the duty not to deceive.” Id. at 528-29.

The plurality received pointed criticism from the other five members of the Court who coalesced into two camps, at odds with each other and the plurality, both of which rejected the “predicate-duty” methodology. Writing for one camp, Justice Scalia, with whom Justice Thomas joined, concluded that the Labeling Act preempted all of Mr. Cipollone's claims. Id. at 549-54. Justice Blackmun, in an opinion joined by Justices Kennedy and Souter, stated that he would find none of the plaintiff's claims to be preempted. Id. at 531-44. In the 16-year interregnum between Cipollone and Altria, courts struggled to apply the “predicate-duty” framework with any consistency.

Altria Resuscitates the Predicate-Duty Approach

In Altria, the defendants argued that, applying Justice Stevens's predicate-duty methodology, the plaintiffs' consumer fraud claims under MUTPA should be addressed in the manner that the Cipollone plurality dealt with Mr. Cipollone's “warning neutralization” claim. Altria, 129 S. Ct. at 546. “Like the preempted warning neutralization claim,” the defendants argued, the contention that they violated the MUTPA ultimately was “based on statements that 'might create a false impression' rather than statements that are 'inherently false.'” Id. The defendants further argued that, like Mr. Cipollone's failure-to-warn claim, the plaintiffs' allegations are necessarily “based on the relationship between smoking and health.” Id. at 547. In addition, the defendants contended that the application of the predicate-duty framework would directly conflict with the Court's post-Cipollone decisions, including Riegel. Id. at 548.

A Justice Stevens-led majority, which included Justices Ginsburg, Breyer, Souter, and Kennedy, rejected each of these arguments. While acknowledging that it “lack[ed] theoretical elegance,” the Court formally adopted the “predicate-duty” framework, Id. at 547-48, and, under that standard, held that the defendants' alleged misconduct implicates
“a breach of a duty not to deceive” in the same manner as Mr. Cipollone's common law fraud claim. Id. at 546. In addition, while acknowledging that “the appeal of [the defendants'] advertising is based on the relationship between smoking and health,” the Court drew a distinction between “harms related to smoking and health,” which the majority concluded the Labeling Act did not preempt, and “requirements and prohibitions ' that are based on smoking and health,” which it did. Id. at 548 (emphasis in original). Finally, the Court distinguished Riegel by pointing to differences in the statutory language of the MDA and the Labeling Act. Id. at 548-49. The MDA, the Court explained, contains the phrase “relating to,” which the majority construed as meaning “having a connection with,” and, therefore, having broader applicability. Id. at 549. Conversely, the phrase “based on” that appears in the Labeling Act “describes a more direct relationship,” and, by inference, a more limited scope. Id.

Deconstructing Altria's (Il)logic

The Altria dissent did not hold any punches in criticizing the majority's logic. In an opinion joined by Chief Justice Roberts, Justice Scalia, and Justice Alito, Justice Thomas variously described the majority's opinion as “ill-conceived,” “un-workable,” “mischievous,” “distorted,” and “seriously flawed.” The Court's reasoning is certainly puzzling, particularly in light of Riegel.

The foundation for the Court's reasoning in Altria was “the assumption that the historic police powers of the State are not to be superseded by Federal Act unless that was the clear and manifest purposes of Congress,” coupled with the notion that the statutory language of an express preemption provision should be narrowly construed with a presumption against preemption. 129 S. Ct. at 543. However, the only place those principles are articulated in Riegel is in Justice Ginsburg's dissent. 128 S. Ct. at 1013. More fundamentally, as Justice Scalia stated in his opinion in Cipollone (and Justice Thomas reiterated in his Altria dissent), the assumption that federal law should not supersede the States' police powers should “dissolve[] 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, ' [a court's] responsibility is to apply to the text ordinary principles of statutory construction.” 505 U.S. at 545. Indeed, as Justice Thomas points out in his Altria dissent, most of the Court's recent express preemption decisions do not invoke the presumption against preemption. 128 S. Ct. at 556. Furthermore, “[i]f any doubt remained it was eliminated ' in Riegel, ' [where] the Court simply construed the MDA in accordance with ordinary principles of statutory construction.” Id. at 557.

In addition, the Court's analysis in Altria would appear to directly conflict with the principles that it applied in Riegel to interpret the MDA's preemption provision. In concluding that state common law claims constitute a “requirement” under the MDA, the Court explained in Riegel that common law claims “are premised on the existence of a legal duty” and that civil judgments serve as a powerful mechanism for effecting behavior. 128 S. Ct. at 1008. Indeed, the Court in Riegel cites to none other than Cipollone as support for this proposition, and it is interesting to note that the Court in Riegel makes no effort to differentiate among “legal duties” as it does under the Altria/Cipollone “predicate-duty” framework. Id. More to the point, however, there is no logical basis as to why consumer protection statutes, like the MUTPA, should warrant any different treatment. They, too, impose duties of care, and, as many of consumer protection statutes allow for the recovery of punitive damages and attorneys' fees, see, e.g., M.G.L. c. 93A, ' 1, et seq., civil judgments entered under them arguably are even more compelling motivation than judgments based upon common law claims. In Altria, however, the Court sidesteps its concession that the plaintiffs' “actual injuries likely encompass harms to health as well as the monetary injuries they allege” ' which would seem to trigger the Labeling Act's “based on smoking and health” language, with the following explanation:

[T]he text of [the Labeling Act] does not refer to harms related to smoking and health. Rather, it preempts only requirements and prohibitions ' i.e., rules that are based on smoking and health. 129 S. Ct. 547 (emphasis in original).

To say the least, this rationale, which appears to reject the notion that the MUTPA is a requirement, and the Court's reasoning in Riegel, are difficult to reconcile.

Conclusion

Ultimately, it remains to be seen how much traction Altria will gain outside the tobacco litigation, particularly the application of the presumption against preemption, which has many observers rightfully concerned. If the last two decades have taught us anything, however, it is that results-driven preemption decisions are not unusual, and the Supreme Court is certainly not immune to such a temptation. That alone may be the thread that ties Riegel and Altria together. As 2008 has reminded us, we often do not truly learn the contours of the landscape until the next decision (at which point we are usually left wondering again). It is too early to conclude whether the Court's decision in Wyeth v. Levine has provided more concrete guidance. Unfortunately, the waters of the Court's preemption jurisprudence appear just as muddy as they were at this time last year.

J. Christopher Allen, Jr. is an associate in Nixon Peabody LLP's Products, Class Action, Trade and Industry Representation Group, resident in the Boston office.

For many Supreme Court observers, 2008 dawned with hope ' perhaps not HOPE on the order of Grant Park on election night, but hope nevertheless. Four separate preemption cases were among the ranks of the Court's docket. Collectively, they offered an opportunity for the Court to take a significant step toward providing much-needed clarity in connection with its preemption jurisprudence ' or so it seemed. Because Chief Justice Roberts recused himself, Warner-Lambert Co., LLC v. Kent resulted in a 4 to 4 (non)decision that produced no published opinion. 128 S. Ct. 1168 (2008). Oral argument in Wyeth v. Levine, Docket No. 06-1249, did not take place until Nov. 3, 2008, and the Court did not issue a decision until March 4 of this year. That left Riegel v. Medtronic, Inc. , 128 S. Ct. 999 (2008) and Altria Group, Inc. v. Good , 129 S. Ct. 538 (2008). Both decisions assessed express preemption provisions and helped to fill voids created by highly fractured antecedent Supreme Court decisions ' Medtronic, Inc. v. Lohr , 518 U.S. 470 (1996) in the case of Riegel and Cipollone v. Liggett Group, Inc. , 505 U.S. 504 (1992) in the case of Altria Group . However, Riegel and Altria Group are difficult to reconcile in fundamental ways, and, consequently, they did little to provide meaningful guidance to litigants and lower courts.

Riegel Finds Express Preemption Under the Medical Device Amendments

Riegel was decided on Feb. 20, 2008. In an 8 to 1 decision, the Court held that Section 360k of the Medical Device Amendments of 1976 (“MDA”), 21 U.S.C. 360c, et seq., preempts common law personal injury claims in actions involving Class III medical devices subject to the premarket approval process. Riegel, 128 S. Ct. 1011.

On behalf of her late husband, Mrs. Riegel asserted common law product liability claims against Medtronic in connection with the design and sale of its Evergreen Balloon Catheter, a Class III medical device that received premarket approval in 1994. The United States District Court for the Northern District of New York held that each of these causes of action was preempted by the MDA. The United States Court of Appeals for the Second Circuit affirmed the dismissal, as did the Supreme Court.

Section 360k of the MDA provides in relevant part:

[N]o State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement ' which is different from, or in addition to, any requirement applicable under this chapter to the device, and which relates to the safety or effectiveness of the device or to any other matter included in requirement applicable to the device under this chapter. 21 U.S.C. ' 360k(a) (emphasis supplied).

Lohr

Twelve years earlier, in Lohr, the Court unanimously concluded that the MDA did not preempt products-based common law claims implicating medical devices that were subject to the FDA's much less rigorous 510(k) “substantial equivalent” approval process. 518 U.S. at 493-94. However, Lohr left unanswered the question of whether the MDA would preempt claims implicating a medical device that had undergone premarket approval review and, more specifically: 1) whether the premarket approval process constitutes a “requirement” specific to a particular device; and 2) whether common law tort claims constitute a “requirement” that directly conflicts with the FDA's regulations concerning “safety” and “effectiveness.”

Answered Questions

In Riegel, the Court answered both questions in the affirmative. The Court concluded that, given the level of FDA scrutiny with respect to safety and efficacy brought to bear, the premarket approval process, particularly as compared with the 510(k) process, constitutes a device-specific “requirement” under the MDA. Riegel, 128 S. Ct. at 1006-07. In addition, the Court found that common law-imposed tort liability is also a “requirement” because “a liability award can be, indeed is designed to be, a potent method of governing conduct and controlling policy.” Id. at 1009.

As a whole, the Court's opinion was generally well reasoned and not altogether surprising in light of the Court's dicta in Lohr. Moreover, while the decision sparked some protestations externally ' Sen. Edward Kennedy (D-MA) and Rep. Henry Waxman (D-CA), both of whom participated in the drafting of the MDA, asserted that the statute was never intended to preempt common law tort claims ' the Court seemed fairly well unified in its doctrinal approach as only Justice Ginsburg dissented. Ten months later, however, Altria revealed that deep fissures still divide the Court, even with respect to views on express preemption.

Altria Rejects ExpressPreemption Under the Labeling Act

In Altria, a putative class of Maine consumers asserted claims for fraudulent advertising under the Maine Unfair Trade Practice Act (“MUTPA”) against Altria Group and Philip Morris in connection with their sale of certain brands of “light” cigarettes. 129 S. Ct. at 541. As in a number of similar consumer fraud actions brought in other jurisdictions against “light” cigarette manufacturers, see, e.g., Watson v. Philip Morris Co. , 127 S. Ct. 2301 (2007); Brown v. Brown & Williamson Tobacco Corp. , 479 F.3d 383 (5th Cir. 2007); Price v. Philip Morris, Inc. 2005 Ill. LEXIS 2071, *1 (Ill. Dec. 15, 2005); Aspinall v. Philip Morris Co. , 442 Mass. 381 (2004), the Altria plaintiffs did not allege that they suffered any personal injuries caused by smoking. Altria, 129 S. Ct. at 547. Instead, they asserted that the cigarette manufacturers knew consumer smoking behaviors are such that individuals often inhale as much tar and nicotine as “regular” cigarettes and that, by concealing this information, the cigarette manufacturers fraudulently marketed their “light” cigarettes as less harmful than “regular” cigarettes. Id. at 541-42.

Altria Group and Philip Morris moved for summary judgment on the grounds that the plaintiffs' claims under the MUTPA were preempted by the Federal Cigarette Labeling and Advertising Act (“Labeling Act”), which provides:

No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertisement or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this act. 15 U.S.C. ' 1334(b) (emphasis supplied).

The district court allowed the defendants' motion; however, on appeal, the First Circuit reversed the entry of summary judgment. Altria, 129 S. Ct. at 542. In a starkly divided 5 to 4 decision, the Court held that the Labeling Act did not expressly preempt the MUTPA. Id. at 551.

Cipollone Revisited

Like Riegel with Lohr, Altria's roots originate with Cipollone, and a brief review of Cipollone is useful for attempting to deconstruct Altria. In Cipollone, the plaintiff alleged that his mother contracted lung cancer as a result of smoking cigarettes sold by three different manufacturers, 505 U.S. at 508. The plaintiff further claimed that the manufacturers failed to adequately warn of the health effects of smoking and that they otherwise “neutralized” the impact of the federally mandated warning label through advertisements that tended to downplay the hazards of smoking. Id. at 510. In addition to these causes of action, the plaintiff asserted a claim for common law fraud, among others. Id.

In a sharply splintered opinion, the Court held that the Labeling Act expressly preempted the plaintiff's failure-to-warn claim as well as his “warning neutralization” claim. Id. at 530-31. Conversely, the Court held that the Labeling Act did not preempt the plaintiff's common law fraud claim. Justice Stevens wrote the opinion for the plurality, which was joined by Chief Justice Rehnquist, Justice White, and Justice O'Connor. As part of his analysis, Justice Stevens adopted a “predicate-duty” methodology for evaluating whether a particular claim under the Labeling Act should be preempted:

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 of prohibition based on smoking and health.” Id. at 523-24.

Applying this standard, the plurality concluded that Mr. Cipollone's failure-to-warn claim was preempted because the underlying duty ' “to provide a warning necessary to make a product safe” ' fundamentally implicated a “requirement” that was “based on safety and health.” Id. at 524. The plurality found that Mr. Cipollone's “warning neutralization” claim was also preempted because it was “inextricably related” to the plaintiff's failure-to-warn claim. Id. at 528. On the other hand, the plurality determined that the plaintiff's fraudulent misrepresentation claim was “not predicated on a duty 'based on smoking and health' but rather on a more general obligation ' the duty not to deceive.” Id. at 528-29.

The plurality received pointed criticism from the other five members of the Court who coalesced into two camps, at odds with each other and the plurality, both of which rejected the “predicate-duty” methodology. Writing for one camp, Justice Scalia, with whom Justice Thomas joined, concluded that the Labeling Act preempted all of Mr. Cipollone's claims. Id. at 549-54. Justice Blackmun, in an opinion joined by Justices Kennedy and Souter, stated that he would find none of the plaintiff's claims to be preempted. Id. at 531-44. In the 16-year interregnum between Cipollone and Altria, courts struggled to apply the “predicate-duty” framework with any consistency.

Altria Resuscitates the Predicate-Duty Approach

In Altria, the defendants argued that, applying Justice Stevens's predicate-duty methodology, the plaintiffs' consumer fraud claims under MUTPA should be addressed in the manner that the Cipollone plurality dealt with Mr. Cipollone's “warning neutralization” claim. Altria, 129 S. Ct. at 546. “Like the preempted warning neutralization claim,” the defendants argued, the contention that they violated the MUTPA ultimately was “based on statements that 'might create a false impression' rather than statements that are 'inherently false.'” Id. The defendants further argued that, like Mr. Cipollone's failure-to-warn claim, the plaintiffs' allegations are necessarily “based on the relationship between smoking and health.” Id. at 547. In addition, the defendants contended that the application of the predicate-duty framework would directly conflict with the Court's post-Cipollone decisions, including Riegel. Id. at 548.

A Justice Stevens-led majority, which included Justices Ginsburg, Breyer, Souter, and Kennedy, rejected each of these arguments. While acknowledging that it “lack[ed] theoretical elegance,” the Court formally adopted the “predicate-duty” framework, Id. at 547-48, and, under that standard, held that the defendants' alleged misconduct implicates
“a breach of a duty not to deceive” in the same manner as Mr. Cipollone's common law fraud claim. Id. at 546. In addition, while acknowledging that “the appeal of [the defendants'] advertising is based on the relationship between smoking and health,” the Court drew a distinction between “harms related to smoking and health,” which the majority concluded the Labeling Act did not preempt, and “requirements and prohibitions ' that are based on smoking and health,” which it did. Id. at 548 (emphasis in original). Finally, the Court distinguished Riegel by pointing to differences in the statutory language of the MDA and the Labeling Act. Id. at 548-49. The MDA, the Court explained, contains the phrase “relating to,” which the majority construed as meaning “having a connection with,” and, therefore, having broader applicability. Id. at 549. Conversely, the phrase “based on” that appears in the Labeling Act “describes a more direct relationship,” and, by inference, a more limited scope. Id.

Deconstructing Altria's (Il)logic

The Altria dissent did not hold any punches in criticizing the majority's logic. In an opinion joined by Chief Justice Roberts, Justice Scalia, and Justice Alito, Justice Thomas variously described the majority's opinion as “ill-conceived,” “un-workable,” “mischievous,” “distorted,” and “seriously flawed.” The Court's reasoning is certainly puzzling, particularly in light of Riegel.

The foundation for the Court's reasoning in Altria was “the assumption that the historic police powers of the State are not to be superseded by Federal Act unless that was the clear and manifest purposes of Congress,” coupled with the notion that the statutory language of an express preemption provision should be narrowly construed with a presumption against preemption. 129 S. Ct. at 543. However, the only place those principles are articulated in Riegel is in Justice Ginsburg's dissent. 128 S. Ct. at 1013. More fundamentally, as Justice Scalia stated in his opinion in Cipollone (and Justice Thomas reiterated in his Altria dissent), the assumption that federal law should not supersede the States' police powers should “dissolve[] 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, ' [a court's] responsibility is to apply to the text ordinary principles of statutory construction.” 505 U.S. at 545. Indeed, as Justice Thomas points out in his Altria dissent, most of the Court's recent express preemption decisions do not invoke the presumption against preemption. 128 S. Ct. at 556. Furthermore, “[i]f any doubt remained it was eliminated ' in Riegel, ' [where] the Court simply construed the MDA in accordance with ordinary principles of statutory construction.” Id. at 557.

In addition, the Court's analysis in Altria would appear to directly conflict with the principles that it applied in Riegel to interpret the MDA's preemption provision. In concluding that state common law claims constitute a “requirement” under the MDA, the Court explained in Riegel that common law claims “are premised on the existence of a legal duty” and that civil judgments serve as a powerful mechanism for effecting behavior. 128 S. Ct. at 1008. Indeed, the Court in Riegel cites to none other than Cipollone as support for this proposition, and it is interesting to note that the Court in Riegel makes no effort to differentiate among “legal duties” as it does under the Altria/Cipollone “predicate-duty” framework. Id. More to the point, however, there is no logical basis as to why consumer protection statutes, like the MUTPA, should warrant any different treatment. They, too, impose duties of care, and, as many of consumer protection statutes allow for the recovery of punitive damages and attorneys' fees, see, e.g., M.G.L. c. 93A, ' 1, et seq., civil judgments entered under them arguably are even more compelling motivation than judgments based upon common law claims. In Altria, however, the Court sidesteps its concession that the plaintiffs' “actual injuries likely encompass harms to health as well as the monetary injuries they allege” ' which would seem to trigger the Labeling Act's “based on smoking and health” language, with the following explanation:

[T]he text of [the Labeling Act] does not refer to harms related to smoking and health. Rather, it preempts only requirements and prohibitions ' i.e., rules that are based on smoking and health. 129 S. Ct. 547 (emphasis in original).

To say the least, this rationale, which appears to reject the notion that the MUTPA is a requirement, and the Court's reasoning in Riegel, are difficult to reconcile.

Conclusion

Ultimately, it remains to be seen how much traction Altria will gain outside the tobacco litigation, particularly the application of the presumption against preemption, which has many observers rightfully concerned. If the last two decades have taught us anything, however, it is that results-driven preemption decisions are not unusual, and the Supreme Court is certainly not immune to such a temptation. That alone may be the thread that ties Riegel and Altria together. As 2008 has reminded us, we often do not truly learn the contours of the landscape until the next decision (at which point we are usually left wondering again). It is too early to conclude whether the Court's decision in Wyeth v. Levine has provided more concrete guidance. Unfortunately, the waters of the Court's preemption jurisprudence appear just as muddy as they were at this time last year.

J. Christopher Allen, Jr. is an associate in Nixon Peabody LLP's Products, Class Action, Trade and Industry Representation Group, resident in the Boston office.