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A recent decision, Altria Group v. Good, favors state consumer protection laws over federal regulation in a cigarette advertising case.

But, if my predictions are right (see my previous column predicting preemption support), the high court's Wyeth v. Levine will side with business and make preemption, and federal law, supreme.

This decision is of great interest for at least three reasons. First, it was unexpected by legal pundits--including yours truly. Second, it was a razor-thin 5-4 decision of the court involving deeply divided majority and dissenting opinions. And third, it sheds some light on how the court may approach the pre-emption question in Levine.

Levine? Rewind. In Levine, the Vermont Supreme Court upheld a $6.8 million verdict for a professional musician who lost her arm because a Wyeth drug was misadministered. In doing so, the Vermont court rejected Wyeth's pre-emption argument that Wyeth's drug-labeling and warnings were FDA-approved and that federal law should preempt state law. This issue is now argued and awaiting decision by the U.S. Supreme Court.

Now fast-forward back to Good, where a class of Maine smokers sued Altria and Philip Morris for falsely labeling and marketing "light" cigarettes (cigarettes containing reduced amounts of tar and nicotine). The defendants argued that the case should be dismissed because the Federal Cigarette Labeling and Advertising Act pre-empted Maine state consumer protection laws, as they might apply to cigarette advertising.

The trial court agreed, the appellate court disagreed and, because of a contrary federal appellate decision from another federal circuit, the Supreme Court agreed to hear the case.

The Good case is not the first time the court has considered the pre-emptive effect of this federal act on state law claims involving cigarette advertising. In 1992, it decided the Cipollone v. Liggett Group case but only by a "plurality" decision (only four of the nine justices agreed upon the reasoning), ruling that two state law claims were pre-empted and two claims were not. Since then, lower federal courts have struggled to understand and apply Cipollone.

In Good, the court adopted the Cipollone decision's approach to interpreting the federal act but, importantly, also adopted its analytical approach to the "presumption against pre-emption." This presumption, a much criticized linchpin to the Cipollone decision, encourages a court to find no preemption--unless there is evidence of a "clear and manifest purpose of Congress" to pre-empt existing state law.

More recent Supreme Court cases on pre-emption have downplayed or outright ignored the role of the presumption against pre-emption. And that is why the Good decision and analysis was unexpected.

Justices Stevens, Kennedy, Souter, Ginsburg and Breyer formed the majority opinion in Good. However, a blistering dissenting opinion was joined in by Justices Thomas, Roberts, Scalia and Alito. Justice Kennedy appears to be fulfilling the predictions that he would serve as a key swing vote in close cases where the so-called liberal and conservative justices separately aligned.

The court is clearly divided over pre-emption and the proper use of the presumption against pre-emption. While the future impact of Good on Levine and other pre-emption cases to follow is uncertain, it may be minimal because of the unique circumstances of the Good case, which involved cigarettes and a tricky, murky prior court precedent (the Cipollone case).

The decision in Levine will tell us whether Good is an outlier or not. I'm sticking to my guns--and predicting a finding of pre-emption in the Levine case.

PHILIP G. KIRCHER is co-chairman of the commercial litigation department at the law firm of Cozen O'Connor.

February 2, 2009

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