Altria Group, Inc., et al. v. Stephanie Good, et al.07–562

Respondents, who have for over 15 years smoked "light” cigarettes manufactured by petitioners, Philip MorrisUSA, Inc., and its parent company, Altria Group, Inc., claim that petitioners violated the Maine Unfair TradePractices Act (MUTPA). Specifically, they allege thatpetitioners' advertising fraudulently conveyed the message that their "light” cigarettes deliver less tar and nicotine to consumers than regular brands despite petitioners' knowledge that the message was untrue. Petitioners denythe charge, asserting that their advertisements werefactually accurate. The merits of the dispute are notbefore us because the District Court entered summaryjudgment in favor of petitioners on the ground that respondents' state-law claim is pre-empted by the Federal Cigarette Labeling and Advertising Act, as amended (Labeling Act). The Court of Appeals reversed that judgment, and we granted certiorari to review its holding that the Labeling Act neither expressly nor impliedly preempts respondents' fraud claim. We affirm.

I Respondents are Maine residents and longtime smokers of Marlboro Lights and Cambridge Lights cigarettes,which are manufactured by petitioners. Invoking thediversity jurisdiction of the Federal District Court, respondents filed a complaint alleging that petitioners deliberately deceived them about the true and harmful nature of "light” cigarettes in violation of the MUTPA, Me. Rev.Stat. Ann., Tit. 5, §207 (Supp. 2008).1 Respondents claim that petitioners fraudulently marketed their cigarettes asbeing "light” and containing "'[l]owered [t]ar and [n]icotine'” to convey to consumers that they deliver less tar and nicotine and are therefore less harmful than regular cigarettes. App. 28a–29a.Respondents acknowledge that testing pursuant to theCambridge Filter Method2 indicates that tar and nicotine yields of Marlboro Lights and Cambridge Lights are lowerthan those of regular cigarettes. Id., at 30a. Respondentsallege, however, that petitioners have known at all relevant times that human smokers unconsciously engage incompensatory behaviors not registered by CambridgeFilter Method testing that negate the effect of the tar- and nicotine-reducing features of "light” cigarettes. Id., at 30a–31a. By covering filter ventilation holes with their lips or fingers, taking larger or more frequent puffs, andholding the smoke in their lungs for a longer period oftime, smokers of "light” cigarettes unknowingly inhale asmuch tar and nicotine as do smokers of regular cigarettes. Ibid. "Light” cigarettes are in fact more harmful because the increased ventilation that results from their unique design features produces smoke that is more mutagenic per milligram of tar than the smoke of regular cigarettes. Id., at 31a–32a. Respondents claim that petitioners violated the MUTPA by fraudulently concealing that information and by affirmatively representing, through the useof "light” and "lowered tar and nicotine” descriptors, thattheir cigarettes would pose fewer health risks. Id., at 32a, 33a. Petitioners moved for summary judgment on the ground that the Labeling Act, 15 U. S. C. §1334(b), expressly preempts respondents' state-law cause of action. Relying on our decisions in Cipollone v. Liggett Group, Inc., 505 U. S. 504 (1992), and Lorillard Tobacco Co. v. Reilly, 533 U. S. 525 (2001), the District Court concluded that respondents' MUTPA claim is pre-empted. The court recast respondents' claim as a failure-to-warn or warning neutralizationclaim of the kind pre-empted in Cipollone: The claim charges petitioners with "produc[ing] a product it knewcontained hidden risks . . . not apparent or known to the consumer”—a claim that "runs to what [petitioners] actually said about Lights and what [respondents] claim they should have said.” 436 F. Supp. 2d 132, 151 (Me. 2006). And the difference between what petitioners said andwhat respondents would have them say is "'intertwinedwith the concern about cigarette smoking and health.'” Id., at 153 (quoting Reilly, 533 U. S., at 548). The District Court thus concluded that respondents' claim rests on astate-law requirement based on smoking and health of 4 ALTRIA GROUP, INC. v. GOOD precisely the kind that §1334(b) pre-empts, and it grantedsummary judgment for petitioners. Respondents appealed, and the Court of Appeals reversed. The Court of Appeals first rejected the DistrictCourt's characterization of respondents' claim as a warning neutralization claim akin to the pre-empted claim in Cipollone. 501 F. 3d 29, 37, 40 (CA1 2007). Instead, the court concluded that respondents' claim is in substance afraud claim that alleges that petitioners falsely represented their cigarettes as "light” or having "lowered tar and nicotine” even though they deliver to smokers the same quantities of those components as do regular cigarettes. Id., at 36. "The fact that these alleged misrepresentations were unaccompanied by additional statementsin the nature of a warning does not transform the claimed fraud into failure to warn” or warning neutralization. Id., at 42–43. Finding respondents' claim indistinguishablefrom the non-pre-empted fraud claim at issue in Cipollone, the Court of Appeals held that it is not expressly preempted. The court also rejected petitioners' argumentthat respondents' claim is impliedly pre-empted becausetheir success on that claim would stand as an obstacle to the purported policy of the FTC allowing the use of descriptive terms that convey Cambridge Filter Method test results. Accordingly, it reversed the judgment of the District Court. In concluding that respondents' claim is not expressly pre-empted, the Court of Appeals considered and rejected the Fifth Circuit's reasoning in a similar case. 501 F. 3d, at 45. Unlike the court below, the Fifth Circuit likened the plaintiffs' challenge to the use of "light” descriptors to Cipollone's warning neutralization claim and thus found it expressly pre-empted. Brown v. Brown & Williamson Tobacco Corp., 479 F. 3d 383, 392–393 (2007). We grantedthe petition for certiorari to resolve this apparent conflict.552 U. S. ___ (2008). 5 Cite as: 555 U. S. ____ (2008) Opinion of the Court

II

Article VI, cl. 2, of the Constitution provides that the laws of the United States "shall be the supreme Law of theLand; . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Consistent with that command, we have long recognized that state laws that conflict with federal law are "without effect.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981). Our inquiry into the scope of a statute's pre-emptiveeffect is guided by the rule that "'[t]he purpose of Congress is the ultimate touchstone' in every pre-emption case.” Medtronic, Inc. v. Lohr, 518 U. S. 470, 485 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963)). Congress may indicate pre-emptive intent through astatute's express language or through its structure and purpose. See Jones v. Rath Packing Co., 430 U. S. 519, 525 (1977). If a federal law contains an express preemption clause, it does not immediately end the inquiry because the question of the substance and scope of Congress' displacement of state law still remains. Preemptive intent may also be inferred if the scope of the statute indicates that Congress intended federal law tooccupy the legislative field, or if there is an actual conflict between state and federal law. Freightliner Corp. v. Myrick, 514 U. S. 280, 287 (1995). When addressing questions of express or implied preemption, we begin our analysis "with the assumption thatthe historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clearand manifest purpose of Congress.” Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). That assumption applies with particular force when Congress has legislated in a field traditionally occupied by the States. Lohr, 518 U. S., at 485; see also Reilly, 533 U. S., at 541– 542 ("Because 'federal law is said to bar state action in [a] 6 ALTRIA GROUP, INC. v. GOOD fiel[d] of traditional state regulation,' namely, advertising,we 'wor[k] on the assumption that the historic policepowers of the States [a]re not to be superseded by theFederal Act unless that [is] the clear and manifest purpose of Congress' ” (citation omitted)). Thus, when the text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily "accept the reading thatdisfavors pre-emption.” Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005). Congress enacted the Labeling Act in 19653 in response to the Surgeon General's determination that cigarette smoking is harmful to health. The Act required that everypackage of cigarettes sold in the United States contain a conspicuous warning, and it pre-empted state-law positiveenactments that added to the federally prescribed warning. 79 Stat. 283. Congress amended the Labeling Act afew years later by enacting the Public Health Cigarette Smoking Act of 1969.4 The amendments strengthened thelanguage of the prescribed warning, 84 Stat. 88, and prohibited cigarette advertising in "any medium of electroniccommunication subject to [FCC] jurisdiction,” id., at 89. They also broadened the Labeling Act's pre-emption provision. See Cipollone, 505 U. S., at 520 (plurality opinion) (discussing the difference in scope of the pre-emptionclauses of the 1965 and 1969 Acts). The Labeling Act has since been amended further to require cigarette manufacturers to include four more explicit warnings in their packaging and advertisements on a rotating basis.5 The stated purpose of the Labeling Act is "to establish a comprehensive Federal program to deal —————— 379 Stat. 282. 4Pub. L. 91–222, 84 Stat. 87. Though actually enacted in 1970, Congress directed that it be cited as a "1969 Act.” 5Comprehensive Smoking Education Act, Pub. L. 98–474, §4(a), 98Stat. 2201, 15 U. S. C. §1333(a). 7 Cite as: 555 U. S. ____ (2008) Opinion of the Court 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 ofcigarettes; 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.” 79 Stat. 282, 15 U. S. C. §1331.

The requirement that cigarette manufacturers include in their packaging and advertising the precise warningsmandated by Congress furthers the Act's first purpose.And the Act's pre-emption provisions promote its second purpose.

As amended, the Labeling Act contains two express preemption provisions. Section 5(a) protects cigarette manufacturers from inconsistent state labeling laws by prohibiting the requirement of additional statements relating tosmoking and health on cigarette packages. 15 U. S. C. §1334(a). Section 5(b), which is at issue in this case,provides that "[n]o requirement or prohibition based onsmoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettesthe packages of which are labeled in conformity with theprovisions of this chapter.” §1334(b).

Together, the labeling requirement and pre-emption provisions express Congress' determination that the prescribed federal warnings are both necessary and sufficientto achieve its purpose of informing the public of the health consequences of smoking. Because Congress has decided that no additional warning statement is needed to attainthat goal, States may not impede commerce in cigarettesby enforcing rules that are based on an assumption that the federal warnings are inadequate. Although both of theAct's purposes are furthered by prohibiting States from supplementing the federally prescribed warning, neitherwould be served by limiting the States' authority to prohibit deceptive statements in cigarette advertising. Petitioners acknowledge that "Congress had no intention ofinsulating tobacco companies from liability for inaccuratestatements about the relationship between smoking and health.” Brief for Petitioners 28. But they maintain thatCongress could not have intended to permit the enforcement of state fraud rules because doing so would defeat the Labeling Act's purpose of preventing nonuniform state warning requirements. 15 U. S. C. §1331.6 As we observed in Cipollone, however, fraud claims "rely only on asingle, uniform standard: falsity.” 505 U. S., at 529 (plurality opinion). Although it is clear that fidelity to the Act's purposesdoes not demand the pre-emption of state fraud rules, theprincipal question that we must decide is whether the textof §1334(b) nevertheless requires that result.

III We have construed the operative phrases of §1334(b) intwo prior cases: Cipollone, 505 U. S. 504, and Reilly, 533 U. S. 525. On both occasions we recognized that the phrase "based on smoking and health” modifies the statelaw rule at issue rather than a particular application of that rule.

In Cipollone, the plurality, which consisted of Chief Justice Rehnquist and Justices White, O'Connor, andSTEVENS, read the pre-emption provision in the 1969amendments to the Labeling Act to pre-empt common-lawrules as well as positive enactments. Unlike Justices Blackmun, KENNEDY, and SOUTER, the plurality concluded that the provision does not preclude all commonlaw claims that have some relationship to smoking and health. 505 U. S., at 521–523. To determine whether a particular common-law claim is pre-empted, the pluralityinquired "whether the legal duty that is the predicate of the common-law damages action constitutes a 'requirement or prohibition based on smoking and health . . . with respect to . . . advertising or promotion,' giving that clause a fair but narrow reading.” Id., at 524.

Applying this standard, the plurality held that theplaintiff's claim that cigarette manufacturers had fraudulently misrepresented and concealed a material fact was not pre-empted. That claim alleged a violation of the manufacturers' duty not to deceive—a duty that is not "based on” smoking and health. Id., at 528–529. Respon10 ALTRIA GROUP, INC. v. GOOD Opinion of the Court dents in this case also allege a violation of the duty not todeceive as that duty is codified in the MUTPA. The duty codified in that state statute, like the duty imposed by thestate common-law rule at issue in Cipollone, has nothing to do with smoking and health.7

Petitioners endeavor to distance themselves from that holding by arguing that respondents' claim is more analogous to the "warning neutralization” claim found to be preempted in Cipollone. Although the plurality understood the plaintiff to have presented that claim as a "theory of fraudulent misrepresentation,” id., at 528, the gravamenof the claim was the defendants' failure to warn, as it was "predicated on a state-law prohibition against statementsin advertising and promotional materials that tend to minimize the health hazards associated with smoking,” id., at 527. Thus understood, the Cipollone plurality'sanalysis of the warning neutralization claim has no application in this case.8 Petitioners nonetheless contend that respondents' claimis like the pre-empted warning neutralization claim because it is based on statements that "might create a false impression” rather than statements that are "inherently false.” Brief for Petitioners 39. But the extent of the falsehood alleged does not alter the nature of the claim. Nothing in the Labeling Act's text or purpose or in the plurality opinion in Cipollone suggests that whether a claim is pre-empted turns in any way on the distinction between misleading and inherently false statements.Petitioners' misunderstanding is the same one that led the Court of Appeals for the Fifth Circuit, when confronted with a "light” descriptors claim, to reach a result at odds with the Court of Appeals' decision in this case. See Brown, 479 F. 3d, at 391–393. Certainly, the extent of thefalsehood alleged may bear on whether a plaintiff canprove her fraud claim, but the merits of respondents' claimare not before us.

Once that erroneous distinction is set aside, it is clear that our holding in Cipollone that the common-law fraud claim was not pre-empted is directly applicable to thestatutory claim at issue in this case. As was true of the claim in Cipollone, respondents' claim that the deceptivestatements "light” and "lowered tar and nicotine” inducedthem to purchase petitioners' product alleges a breach ofthe duty not to deceive.9 To be sure, the presence of thefederally mandated warnings may bear on the materialityof petitioners' allegedly fraudulent statements, "but thatpossibility does not change [respondents'] case from one about the statements into one about the warnings.” 501 F. 3d, at 44.10

Our decision in Reilly is consistent with Cipollone's analysis. Reilly involved regulations promulgated by the Massachusetts attorney general "'in order to address theincidence of cigarette smoking and smokeless tobacco use by children under legal age . . . [and] in order to prevent access to such products by underage customers.'” 533 U. S., at 533 (quoting 940 Code Mass. Regs. §21.01 (2000)).The regulations did not pertain to the content of anyadvertising; rather, they placed a variety of restrictions on certain cigarette sales and the location of outdoor andpoint-of-sale cigarette advertising. The attorney generalpromulgated those restrictions pursuant to his statutory authority to prevent unfair or deceptive trade practices. Mass. Gen. Laws, ch. 93A, §2 (West 1996). But althoughthe attorney general's authority derived from a generaldeceptive practices statute like the one at issue in this case, the challenged regulations targeted advertising thattended to promote tobacco use by children instead of prohibiting false or misleading statements. Thus, whereas the "prohibition” in Cipollone was the common-law fraud rule, the "prohibitions” in Reilly were the targeted regulations. Accordingly, our holding in Reilly that the regulations were pre-empted provides no support for an argument that a general prohibition of deceptive practices is "based on” the harm caused by the specific kind of deception to which the prohibition is applied in a given case.

It is true, as petitioners argue, that the appeal of their advertising is based on the relationship between smoking and health. And although respondents have expressly repudiated any claim for damages for personal injuries, see App. 26a, their actual injuries likely encompass harmsto health as well as the monetary injuries they allege. These arguments are unavailing, however, because thetext of §1334(b) does not refer to harms related to smoking and health. Rather, it pre-empts only requirements and prohibitions—i.e., rules—that are based on smoking and health. The MUTPA says nothing about either "smoking” or "health.” It is a general rule that creates a duty not todeceive and is therefore unlike the regulations at issue in Reilly.11

Petitioners argue in the alternative that we shouldreject the express pre-emption framework established by the Cipollone plurality and relied on by the Court in Reilly. In so doing, they invoke the reasons set forth inthe separate opinions of Justice Blackmun (who especially criticized the plurality's holding that the failure-to-warnclaim was pre-empted) and JUSTICE SCALIA (who arguedthat the fraud claim also should be pre-empted). While we again acknowledge that our analysis of these claims may lack "theoretical elegance,” we remain persuaded that it represents "a fair understanding of congressional purpose.” Cipollone, 505 U. S., at 529–530, n. 27 (plurality opinion). Petitioners also contend that the plurality opinion is inconsistent with our decisions in American Airlines, Inc. v. Wolens, 513 U. S. 219 (1995), and Riegel v. Medtronic, Inc., 552 U. S. ___ (2008). Both cases, however, are inapposite—the first because it involved a pre-emption provision much broader than the Labeling Act's, and the second because it involved precisely the type of state rule thatCongress had intended to pre-empt.

At issue in Wolens was the pre-emptive effect of theAirline Deregulation Act of 1978 (ADA), 49 U. S. C. App. §1305(a)(1) (1988 ed.), which prohibits States fromenacting or enforcing any law "relating to rates, routes, or services of any air carrier.” The plaintiffs in that casesought to bring a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill. Comp. Stat., ch.815, §505 (West 1992). Our conclusion that the state-law claim was pre-empted turned on the unusual breadth ofthe ADA's pre-emption provision. We had previously heldthat the meaning of the key phrase in the ADA's preemption provision, "'relating to rates, routes, or services,'” is a broad one. Morales v. Trans World Airlines, Inc., 504 U. S. 374, 383–384 (1992) (emphasis added). Relying on precedents construing the pre-emptive effect of the samephrase in the Employee Retirement Income Security Act of1974, 29 U. S. C. §1144(a), we concluded that the phrase "relating to” indicates Congress' intent to pre-empt a largearea of state law to further its purpose of deregulating theairline industry. 504 U. S., at 383–384.12 Unquestionably, the phrase "relating to” has a broader scope than the Labeling Act's reference to rules "based on” smoking and health; whereas "relating to” is synonymous with "having a connection with,” id., at 384, "based on” describes a more direct relationship, see Safeco Ins. Co. of America v. Burr, 551 U. S. ___, ___ (2007) (slip op., at 13) ("In common talk, the phrase 'based on' indicates a but-for causal relationship and thus a necessary logical condition”).

Petitioners' reliance on Riegel is similarly misplaced. The plaintiffs in Riegel sought to bring common-law design, manufacturing, and labeling defect claims against the manufacturer of a faulty catheter. The case presented the question whether those claims were expressly preempted by the Medical Device Amendments of 1976 (MDA), 21 U. S. C. §360c et seq. The MDA's pre-emptionclause provides that no State "'may establish or continue in effect with respect to a device . . . any requirement' relating to safety or effectiveness that is different from, or in addition to, federal requirements.” Riegel, 552 U. S., at ___ (slip op., at 14) (quoting 21 U. S. C. §360k(a); emphasis deleted).

The catheter at issue in Riegel had received premarketapproval from the Food and Drug Administration (FDA). We concluded that premarket approval imposes "requirement[s] relating to safety [and] effectiveness” because the FDA requires a device that has received premarket approval to be made with almost no design, manufacturing, or labeling deviations from the specifications in its approved application. The plaintiffs' products liability claims fell within the core of the MDA's pre-emption provision because they sought to impose different requirements on precisely those aspects of the device that theFDA had approved. Unlike the Cipollone plaintiff's fraud claim, which fell outside of the Labeling Act's pre-emptive reach because it did not seek to impose a prohibition"based on smoking and health,” the Riegel plaintiffs' common-law products liability claims unquestionably sought to enforce "requirement[s] relating to safety or effectiveness” under the MDA. That the "relating to” language of the MDA's pre-emption provision is, like the ADA's, much broader than the operative language of the Labeling Actprovides an additional basis for distinguishing Riegel. Thus, contrary to petitioners' suggestion, Riegel is entirely consistent with our holding in Cipollone. In sum, we conclude now, as the plurality did in Cipollone, that "the phrase 'based on smoking and health' fairlybut narrowly construed does not encompass the moregeneral duty not to make fraudulent statements.” 505 U. S., at 529. IV

As an alternative to their express pre-emption argument, petitioners contend that respondents' claim is impliedly pre-empted because, if allowed to proceed, it would present an obstacle to a longstanding policy of the FTC. According to petitioners, the FTC has for decades promoted the development and consumption of low tar cigarettes and has encouraged consumers to rely on representations of tar and nicotine content based on Cambridge Filter Method testing in choosing among cigarette brands. Even if such a regulatory policy could provide a basis forobstacle pre-emption, petitioners' description of the FTC'sactions in this regard are inaccurate. The Government itself disavows any policy authorizing the use of "light” and "low tar” descriptors. Brief for United States as 17 Cite as: 555 U. S. ____ (2008) Opinion of the Court Amicus Curiae 16–33.

In 1966, following the publication of the Surgeon General's report on smoking and health, the FTC issued anindustry guidance stating its view that "a factual statement of the tar and nicotine content (expressed in milligrams) of the mainstream smoke from a cigarette,” as measured by Cambridge Filter Method testing, would notviolate the FTC Act. App. 478a. The Commission made clear, however, that the guidance applied only to factualassertions of tar and nicotine yields and did not invite "collateral representations . . . made, expressly or by implication, as to reduction or elimination of health hazards.” Id., at 479a. A year later, the FTC reiterated itsposition in a letter to the National Association of Broadcasters. The letter explained that, as a "general rule,” theCommission would not challenge statements of tar andnicotine content when "they are shown to be accurate andfully substantiated by tests conducted in accordance withthe [Cambridge Filter Method].” Id., at 368a. In 1970, the FTC considered providing further guidance, proposing arule that would have required manufacturers to disclose tar and nicotine yields as measured by Cambridge FilterMethod testing. 35 Fed. Reg. 12671. The leading cigarette manufacturers responded by submitting a voluntary agreement under which they would disclose tar and nicotine content in their advertising, App. 899a–900a, and theFTC suspended its rulemaking, 36 Fed. Reg. 784 (1971).

Based on these events, petitioners assert that "the FTC has required tobacco companies to disclose tar and nicotine yields in cigarette advertising using a governmentmandated testing methodology and has authorized them to use descriptors as shorthand references to those numerical test results.” Brief for Petitioners 2 (emphasis in original). As the foregoing history shows, however, the FTC has in fact never required that cigarette manufacturers disclose tar and nicotine yields, nor has it condoned 18 ALTRIA GROUP, INC. v. GOOD representations of those yields through the use of "light” or "low tar” descriptors.

Subsequent Commission actions further undermine petitioners' claim. After the tobacco companies agreed to report tar and nicotine yields as measured by the Cambridge Filter Method, the FTC continued to police cigarette companies' misleading use of test results. In 1983, the FTC responded to findings that tar and nicotine yields for Barclay cigarettes obtained through Cambridge FilterMethod testing were deceptive because the cigarettes infact delivered disproportionately more tar to smokers than other cigarettes with similar Cambridge Filter Methodratings. 48 Fed. Reg. 15954. And in 1995, the FTC found that a manufacturer's representation "that consumers willget less tar by smoking ten packs of Carlton brand cigarettes than by smoking a single pack of the other brands”was deceptive even though it was based on the results of Cambridge Filter Method testing. In re American Tobacco Co., 119 F. T. C. 3, 4. The FTC's conclusion was based on its recognition that, "[i]n truth and in fact, consumers will not necessarily get less tar” due to "such behavior as compensatory smoking.” Ibid.13 —————— 13In a different action, the FTC charged a cigarette manufacturer with violating the FTC Act by misleadingly advertising certain brands as "low in tar” even though they had a higher-than-average tar rating.See In re American Brands, Inc., 79 F. T. C. 255 (1971). The Commission and the manufacturer entered a consent order that prevented the manufacturer from making any such representations unless they were accompanied by a clear and conspicuous disclosure of the cigarettes' tar and nicotine content as measured by the Cambridge Filter Method. Id., at 258. Petitioners offer this consent order as evidence that the FTC authorized the use of "light” and "low tar” descriptors as long as theyaccurately describe Cambridge Filter Method test results. As the Government observes, however, the decree only enjoined conduct. Brief for United States as Amicus Curiae 26. And a consent order is in anyevent only binding on the parties to the agreement. For all of these reasons, the consent order does not support the conclusion that respondents' claim is impliedly pre-empted. 19 Cite as: 555 U. S. ____ (2008) This history shows that, contrary to petitioners' suggestion, the FTC has no longstanding policy authorizingcollateral representations based on Cambridge FilterMethod test results. Rather, the FTC has endeavored to inform consumers of the comparative tar and nicotine content of different cigarette brands and has in some instances prevented misleading representations of Cambridge Filter Method test results. The FTC's failure to require petitioners to correct their allegedly misleadinguse of "light” descriptors is not evidence to the contrary; agency nonenforcement of a federal statute is not the same as a policy of approval. Cf. Sprietsma v. Mercury Marine, 537 U. S. 51 (2002) (holding that the Coast Guard's decision not to regulate propeller guards did not impliedly preempt petitioner's tort claims).14 More telling are the FTC's recent statements regardingthe use of "light” and "low tar” descriptors. In 1997, the Commission observed that "[t]here are no official definitions for” the terms "light” and "low tar,” and it soughtcomments on whether "there [is] a need for official guidance with respect to the terms” and whether "the descriptors convey implied health claims.” 62 Fed. Reg. 48163.In November 2008, following public notice and comment,the Commission rescinded its 1966 guidance concerningthe Cambridge Filter Method. 73 Fed. Reg. 74500. The rescission is a response to "a consensus among the publichealth and scientific communities that the CambridgeFilter method is sufficiently flawed that statements of tar and nicotine yields as measured by that method are notlikely to help consumers make informed decisions.” Id., at 74503. The Commission's notice of its proposal to rescind —————— 14It seems particularly inappropriate to read a policy of authorization into the FTC's inaction when that inaction is in part the result ofpetitioners' failure to disclose study results showing that Cambridge Filter Method test results do not reflect the amount of tar and nicotine that consumers of "light” cigarettes actually inhale. See id., at 8–11. 20 ALTRIA GROUP, INC. v. GOOD Opinion of the Court the guidance also reiterated the original limits of that guidance, noting that it "only addresse[d] simple factual statements of tar and nicotine yields. It d[id] not apply to other conduct or express or implied representations, evenif they concern[ed] tar and nicotine yields.” Id., at 40351.

In short, neither the handful of industry guidances and consent orders on which petitioners rely nor the FTC's inaction with regard to "light” descriptors even arguably justifies the pre-emption of state deceptive practices ruleslike the MUTPA.

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http://www.supremecourtus.gov/opinions/08pdf/07-562.pdf

We conclude, as we did in Cipollone, that the Labeling Act does not pre-empt state-law claims like respondents’ that are predicated on the duty not to deceive. We also hold that the FTC’s various decisions with respect tostatements of tar and nicotine content do not impliedly pre-empt respondents’ claim. Respondents still must prove that petitioners’ use of “light” and “lowered tar” descriptors in fact violated the state deceptive practicesstatute, but neither the Labeling Act’s pre-emption provision nor the FTC’s actions in this field prevent a jury fromconsidering that claim. Accordingly, the judgment of the Court of Appeals is affirmed, and the case is remanded forfurther proceedings consistent with this opinion. It is so ordered.