Maine maintains that it is doing nothing more than protecting public health and carrying out the desire of Congress to curb smoking among young people. Its 2003 law requires those who sell tobacco products directly to consumers to use only those delivery services that verify the age of the recipient.
The trucking industry, supported by the federal government, warns to the contrary that the Maine statute opens the door to the very patchwork of conflicting state regulations that Congress meant to pre-empt when it deregulated motor transportation.
Two lower federal courts agreed with the industry, and found that the state law was pre-empted by the Federal Aviation Administration Authorization Act of 1994. In arguments on Wednesday, the Supreme Court appeared inclined to reach the same result.
“What if every state enacted a slightly different law?” Justice Samuel A. Alito Jr. asked Paul Stern, Maine’s deputy attorney general. “Wouldn’t you agree that there would be just the kind of patchwork regulation at the state level that this statute was intended to stop?”
If Maine, or the 38 other states that signed a brief supporting it, had allies on the Supreme Court, those justices did not make themselves known during the argument. Attacks on Maine’s position came from across the court’s spectrum, reflecting that pre-emption cases often do not follow the usual ideological lines.
Justice Stephen G. Breyer told Mr. Stern that while the state’s goal might be a worthy one, the answer was to “convince Congress to pass a law.” He continued, “It’s just that if every state does it differently, it’s going to be a nightmare.”
When Mr. Stern observed that the federal government did not regulate the shipment of tobacco products and that the state law therefore filled “a regulatory void,” Justice Antonin Scalia responded: “Well, maybe because Congress wanted the regulatory void.”
By contrast, the court appeared receptive to the arguments presented on the other side by Beth S. Brinkmann, representing the New Hampshire Motor Transport Association, the industry organization that brought the lawsuit, and by Douglas Hallward-Driemeier, an assistant to the solicitor general, who argued for the federal government that the state law was pre-empted.
Ms. Brinkmann said the state law placed an “enormous” burden on shippers like United Parcel Service and Federal Express. “It’s not flipping a switch to create a new service like this,” she said, adding that “many systems would have to be completely re-engineered to take in new data about age and addressee” to comply with the law’s requirements.
There was some indication during the argument that the impact of the state law might be somewhat more theoretical than real. In 2005, major shippers entered into a settlement with New York State under which they agreed not to deliver cigarettes directly to consumers. The voluntary agreement, referred to as an “assurance of discontinuance,” is in effect nationwide.
New York is one of five states that has a ban on the shipment of cigarettes directly to consumers; the others are Arkansas, Connecticut, Maryland and Ohio.
Several justices sounded puzzled about whether these laws, or the New York agreement with the shippers, might themselves be pre-empted. The question went unanswered.
Questions were also raised about requirements the states might impose on shippers of alcoholic beverages. Ms. Brinkmann said that given the states’ authority under the 21st Amendment to regulate alcohol, the issue was more complex constitutionally than tobacco-related regulation.
The federal law at issue was passed to put motor transportation on the same deregulated footing as the airline industry. Mr. Stern said that Congress was concerned with economic regulation, not regulation for health.
But Justice David H. Souter, clearly unpersuaded, said the issue was whether Congress “intended to permit any regulation with respect to delivery services to survive,” no matter the rationale. “Isn’t that the tough question that you’ve got to face?” he asked.