Class Action

U.S. Supreme Court takes up UDAP statute preemption case: Altria Group v. Good

By Kimberly A. Kralowec

On January 18, 2008, the U.S. Supreme Court granted cert. in Altria Group v. Good, no. 07-562. In that case, the Court will address whether the Federal Cigarette Labeling and Advertising Act ("FCLAA") (15 U.S.C. §§1331 et seq.) preempts a consumer protection claim based on a state UDAP statute** very similar to the UCL. The First Circuit held that the FCLAA did not preempt the claim to the extent it challenged defendants' marketing of cigarettes as "light" or containing "lower tar and nicotine." Good v. Altria, Inc., ___ F.3d ___, 2007 WL 246003 (1st Cir. Aug. 31, 2007). SCOTUSBlog provides a collection of links to the Supreme Court briefs filed to date (scroll down).

The case is worth following because it will probably inform California state courts' analyses of federal preemption issues. In In re Tobacco Cases II, 41 Cal.4th 1257 (2007), for example, the California Supreme Court held that the FCLAA preempted a UCL claim to the extent that it "seeks to impose on defendant tobacco companies a duty not to advertise in a way that could encourage minors to smoke," citing Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001). (See these blog posts for more.)

**A "UDAP statute" is a state statute prohibiting unfair and deceptive acts and practices, such as the UCL.

Full post as published by The UCL Practitioner on February 05, 2008 (boomark / email).