6/25. The Supreme Court of the U.S.
(SCUS) granted certiorari in Rowe v. New Hampshire
Motor Transportation Association, a case involving whether portions of a statute of
the state of Maine that regulate the sale and delivery of tobacco products
purchased via the internet is preempted by the Federal
Aviation Administration Authorization Act of 1994 (FAAAA). See,
List [12 pages in PDF] at page 2.
The lower courts issued rulings in favor of the New Hampshire Motor Transportation
Association (NHMTA) and the other carriers, and against Steven Rowe, the Attorney
General of Maine. The courts held that portions of the state statute are preempted by the FAAAA. The Supreme Court may reverse, and issue an opinion that authorizes certain state
by state regulation of e-commerce via regulation of air carriers and delivery companies.
Federal Statute. The FAAAA contains sections that preempt state laws and
regulations that attempt to regulate prices or services of not only air carriers, but also
motor carriers, including delivery companies. The relevant sections of the FAAAA, which is
sometimes pronounced as "F Quad A", are codified in
49 U.S.C. § 14501 and
49 U.S.C. § 41713.
These provide that states cannot regulate "service of any motor carrier ...
with respect to the transportation of property" or
"service of an air carrier".
Subsection 14501(c)(1) provides that "a State,
political subdivision of a State, or political authority of 2 or more States may
not enact or enforce a law, regulation, or other provision having the force and
effect of law related to a price, route, or service of any motor carrier (other
than a carrier affiliated with a direct air carrier covered by section
41713(b)(4)) or any motor private carrier, broker, or freight forwarder with
respect to the transportation of property." (Parentheses in original.)
Subsection 4173(b)(4)(A) provides that "a State,
political subdivision of a State, or political authority of 2 or more States may
not enact or enforce a law, regulation, or other provision having the force and
effect of law related to a price, route, or service of an air carrier or carrier
affiliated with a direct air carrier through common controlling ownership when
such carrier is transporting property by aircraft or by motor vehicle (whether
or not such property has had or will have a prior or subsequent air movement)."
(Parentheses in original.)
State Statute. The state of Maine enacted a statute, that is codified
at 22 M.R.S.A. §§ 1551, 1555-C & 1555-D, that regulates the sale of tobacco products,
including internet sales. It contains a ban on the sale of tobacco products to minors.
It also provides for the licensing of tobacco retailers. However, these
provisions are not at issue in this case.
This case involves those portions of the Maine statute that impose burdens upon air
carriers and motor carriers, such as United Parcel Service
(UPS), for the purpose of enforcing a ban on sales to minors.
The relevant sections of the statute have the effect of requiring these
companies to ascertain the content of packages, the age of the addressee of
packages, and whether the addressee is of legal age to receive the package (27
years old in the case of tobacco products). It further requires them to ascertain whether
the retailer was licensed by the state of Maine to sell tobacco products.
The statute imposes burdens and costs upon carriers, and
requires that they change their national business practices to enforce a ban
that only reaches transactions with buyers in the state of Maine.
Questions Presented. The questions presented to the SCUS are as follows:
1. Whether the Federal Aviation Administration Authorization Act
of 1994 ("FAAAA"), 49 U.S.C. §14501(c)(1) and 41713(b)(4)(A), preempts states
from exercising their historic public health police powers to regulate carriers that
deliver contraband such as tobacco and other dangerous substances to children.
2. Whether the FAAAA preempts states from exercising their
historic public health police powers to require shippers of contraband such as
tobacco and other dangerous substances to utilize a carrier that provides age
verification and signature services to ensure that such substances are not
delivered to children."
Notably, this is not a commerce clause, or dormant commerce clause, case. The issues
pertain only to federal preemption by the FAAAA.
Taxes on Internet Commerce. The questions presented do not pertain to
the scope of state tax authority.
TLJ spoke Melissa Reynolds O'Dea, an Assistant Attorney General for Maine.
She said that this case has nothing to do with tax collection or enlisting
carriers to collect state taxes. Taxation "is a red herring", said O'Dea, and
has "never been what this case is about".
TLJ also spoke with
Beth Brinkmann of
the Washington DC office of the law firm of
Morrison & Foerster (MoFo), who represents the carriers. She
said that taxation is not at issue in this case.
However, TLJ also spoke with Eric Lindblom, Director of Policy Research at
the Campaign for Tobacco-Free Kids (CTFK),
which submitted an amicus curiae brief urging the SCUS to grant certiorari. He
said that while the Maine statute under challenge does not involve tax
collection, tax evasion via the internet is a target of other states' laws, and
those laws may be affected by this case.
He said that "a lot of states have passed laws ... designed to stop tax
evasion". He said that states are losing billions of dollars in tax revenues as
a result of internet sales of tobacco. He added that "that is why those laws
have been passed".
He elaborated on the CTFK's concern over tax collection. He said that the banning sales
of tobacco products to minors is just one way
to limit smoking by minors. Another way is to raise the price of tobacco via
high taxes. That is, the higher the total price of cigarettes, the fewer people
will smoke, including minors. Hence, the CTFK supports state tax collection efforts.
Proceedings Below. The New Hampshire Motor
Transport Association (NHMTA) and other trade groups that deliver packages challenged
the Maine statute. They filed a complaint in U.S.
District Court (DMaine) against Steven Rowe, the Attorney General of Maine, seeking
declaratory and injunctive relief that the Maine statute is preempted by the FAAAA.
The District Court granted summary judgment to the NHMTA, and Maine appealed.
The U.S. Court of Appeals (1stCir)
opinion on May 19, 2006, 2006, affirming in part the judgment of the District Court
granting summary judgment the plaintiffs. See, story titled "1st Circuit Rules Federal
Aviation Statute Preempts Part of Maine's Internet Tobacco Sales Statute" in
TLJ Daily E-Mail
Alert No. 1,381, May 31, 2006. That opinion is also reported at 448 F.3d 66.
The Court of Appeals held that "the FAAAA focuses on the effect that a state's law
has on carriers, and not on the state's objective in passing the law. To the extent that
Maine's Tobacco Delivery Law requires (or has the effect of requiring) carriers to implement
state-mandated procedures in the processing and delivery of packages, it is preempted by
the FAAAA. But to the extent that the Tobacco Delivery Law merely bars all persons
(including carriers) from knowingly transporting contraband tobacco into Maine, the FAAAA
is not implicated." (Parentheses in original.)
Supreme Court. The SCUS has now agreed to hear the case.
The Office of the Solicitor General
(OSG) submitted an
amicus curiae brief at the request of the SCUS in which it stated that the
"court of appeals is correct and does not merit this Court's review".
In addition to the CTFK, other states filed an amicus brief brief urging the
SCUS to grant certiorari.
The state of Maine asserts that its statute does not impose economic
regulation on carriers, such as entry barriers, tariff filing requirements, or
price controls. It asserts that the statute at issue protects public health and
welfare, and is therefore not preempted by the FAAAA.
The Maine AG's O'Dea told TLJ that this case is about "the health and safety
of children", and that there is nothing protectionist about the statute.
Granholm v. Heald. The SCUS ruled in 2005 against states that regulate
direct sales of wine, including internet sales. See, May 16, 2005,
opinion [73 pages in PDF]. See also,
titled "Supreme Court Rules in Internet Wine Sales Case" in
TLJ Daily E-Mail
Alert No. 1,137, May 17, 2005
The SCUS held that Michigan's and New York's regulatory schemes that permit
in-state wineries directly to ship alcohol to consumers, but restrict the
ability of out-of-state wineries to do so, violate the dormant commerce clause.
However, while the policy questions in the present case and Granholm v.
Heald are similar, the underlying legal issues are different. Both cases
involve a state statute that burdens interstate and internet commerce.
Granholm involved the Constitution's 21st Amendment and the commerce clause,
but not the FAAAA, or federal preemption. The present case involves preemption by the FAAAA,
but no constitutional issues. Moreover, in Granholm, the states of
Michigan and New York carved out an exception for in state wineries, while in
the present case there is no exception for in state tobacco sellers. That is,
there was a protectionist element to the state wine laws, while the carriers do
not assert that there is a protectionist motive behind the Maine statute.
The SCUS divided 5-4 in Granholm v. Heald. The court did not break
down on partisan or ideological lines. Rather, the older members dissented. Two
of the dissenters, Rehnquist and O'Connor, are no longer on the court. This may
work to the advantage of the carriers, and proponents of internet commerce
generally, in the present case.
Brinkman, who represents the NHMTA and other carrier groups, told TLJ that Granholm
involved different legal issues. O'Dea, who represents Maine, told TLJ that the legal issues
are different, but that the present case "is a logical case to follow up on
Granholm". She added that "the law is different, but it
certainly has similarities."
Why Grant Certiorari? The Court of Appeals affirmed the District Court. The three
judge panel was unanimous. There is no split between the circuits. The OSG opposed granting
certiorari. The only issues involve the scope of FAAAA preemption.
Yet, the SCUS granted certiorari.
According to academic studies, and statements of Justices, the SCUS tends to
grant certiorari when the OSG requests that it do so, when there is a circuit
split, and/or when the question is particularly important. The first two
criteria are clearly lacking in the present case. Moreover, the meaning of the FAAAA is not one of the more important issues of the day. Hence, the question
remains, why did the Court grant certiorari?
The Supreme Court does not publish opinions explaining its reasons for granting
One reason for granting certiorari may be that while the District Court, Court of
Appeals, and OSG are in agreement as to outcome, and there is no circuit split, a review of
the opinions and brief shows that the District Court, Court of Appeals, and OSG differ in
Another may be that Justices of the SCUS intend to use this case as a vehicle
for clarifying the law regarding federal preemption generally.
A third reason may be that the SCUS intends to use this case to examine
preemption laws in the context of regulation of internet related activity.
Technically, only two preemption sections of the FAAAA are at issue (those
relating to air carriers and motor carriers). However, there are other types of
carrier regulation. The Congress began by regulating rail carriers in the late
19th Century. The Congress extended carrier regulation from the carriage of
physical items to the carriage of voice communications with the Communications
Act of 1934. The Federal Communications Commission (FCC) is now in the process
of applying common carriers regulations, on a component by component basis, to
internet protocol based services. All of these carrier, or carrier like,
regulatory regimes also contain partial preemptions of state laws and regulations.
Governments (federal, state, local, and foreign) seek to regulate the production and sale
of various goods and services. For example, Maine asserts in this case that it seeks to
regulate the sale of tobacco products in Maine on the basis of age.
Regulatory regimes of this nature can target producers, consumers, or intermediaries.
Previously, states could regulate the retailers that sold tobacco in Maine. However, the
growing prevalence of internet sellers in this sector, as in many other sectors, serves to
partially disintermediate previous
intermediaries. But, internet commerce also creates new intermediaries, such as processors
of financial transactions, providers of internet connected servers, networks that carry IP
communications, and the companies that deliver the physical products purchased over the
internet. This case involves a law that targets these latter class of intermediaries.
In contrast, commercial regulatory regimes rarely target consumers or users.
There are too many of them, and they each have a vote. Moreover, regulating
internet based commerce, or similar transactions, by focusing on consumers and
users is difficult, expensive, and usually futile. Hence, it is rare. Most
situations where this is attempted occur because the usual intermediaries are
absent. For example, the record industry brings private actions against peer to
peer infringers because of the absence of financial intermediaries (it is free),
ISPs (it is over decentralized peer to peer systems), and delivery companies (it is
digital downloads). Governments prosecute consumers of child porn for the same reasons.
Similarly, in the context of internet commerce, regulating producers is often
futile. Producers can locate out of state, on Indian lands, or abroad. They are
sometimes too numerous or too difficult to track.
Hence, when governments now seek to regulate commercial activity that is internet based,
the most likely targets are not either the producers or the consumers, but rather the new
intermediaries. They are the easiest targets to regulate. Moreover, regulating intermediaries provides
governments the opportunity to shift the costs of regulation from the government (and hence
the voters) to intermediaries, which from the perspective of state regulators, are often out
of state, and cannot vote. Of course, this raises prices to consumers of things
purchased over the internet -- a sort of hidden tax on consumers.
One question that arises from this new environment is what is the appropriate government authority for the
imposition of regulations on the new intermediaries of internet based commerce
-- the federal government, the states, or both. Perhaps SCUS Justices view the
present case as important because it goes to this larger question.
The SCUS could write a short, narrow, and technical interpretation of two obscure
sections of the FAAAA.
On the other hand, it could write a broader opinion that discusses
the states' ability to impress carriers of things, carriers of information, financial
intermediaries, and ISPs to put into effect various attempts to regulate internet based
commerce. These regulatory regimes could target not only tobacco sales, but also other products, such as
pornography, guns, pharmaceuticals, and alcohol. The opinion might also discuss
for other purposes, such as consumer protection and public safety. Hypothetically, the SCUS
could also discuss the abuses of state regulatory powers, such as protection of in state
producers from internet based competition, and protection of local brick and mortar
intermediaries from internet competition.
Congress. Attempts in recent Congresses to enact legislation affecting
states' ability to regulate and tax internet sales of alcohol and tobacco failed.
In the current Congress, there is S 1027
"Prevent All Cigarette Trafficking Act of 2007" or "PACT Act". The
Senate Judiciary Committee (SJC) approved it on
May 17, 2007.
See also, HR 2824
(108th Congress), the "Internet Tobacco Sales Enforcement Act". And
see, story titled "House Judiciary Committee Approves Internet Tobacco Sales
Enforcement Act" in
TLJ Daily E-Mail Alert No. 826, January 29, 2004.
It should also be noted that the Jenkins Act, which is codified at
15 U.S.C. §§ 375-378, already requires direct shippers
of tobacco products to report to state tax agencies.
The Jenkins Act, enacted in 1949, does not create a federal tax collection
regime. Rather, it established reporting requirements. It requires that any
person who sells and ships cigarettes across a state line to a buyer, other than
a licensed distributor, to report the sale to the buyer's state tobacco tax
administrator. Some states impose vastly higher taxes on the sales of cigarettes
than others. The Jenkins Act helps these states enforce their cigarette tax laws.
The CTFK's Lindblom added that if the SCUS were to hold that the FAAAA
preempts the Maine statute, then "it would increase pressure for Congress to
pass a law", such as the PACT Act.
Case Information. This case is Steven Rowe v. New Hampshire Motor Transport
Association, et al., Sup. Ct. No. 06-457, a petition for writ of certiorari to the U.S.
Court of Appeals for the 1st Circuit, App. Ct. No. 05-2136. The Court of Appeals heard an
appeal from the U.S. District Court for the District of Maine, Judge Brock Hornby presiding.
Judge Howard wrote the opinion of the Court of Appeals, in which Judges Boudin and Stahl
The NHMTA is represented before the SCUS by
Beth Brinkmann of the
Washington DC office of the law firm of Morrison &
Foerster (MoFo). Ruth
Borenstein of MoFo's San Francisco office argued the case before the First Circuit.
See also, SCUS docket.