Friday, June 27, 2008

The U.S. Supreme Court has struck down a Maine law

February 20, 2008 12:02 PM PST

Supreme Court strikes down law targeting online cigarette sales

Posted by Declan McCullagh

The U.S. Supreme Court has struck down a Maine law that slapped severe restrictions on sales of cigarettes via mail order and the Internet.

In their opinion (PDF) on Wednesday, the justices said a 1994 federal law trumped the Maine statute restricting sales and shipments of tobacco.

The 1994 federal law in question says that no state may enact a law "related to a price, route, or service of any motor carrier...with respect to the transportation of property."

That seems pretty clear: cigarettes are property, and the Maine regulations targeted motor carriers transporting them. But Maine says that "public health" concerns--namely, preventing kids from ordering smokes online--justified its rules.

One part of Maine's regulations said that only Maine-licensed retailers may ship tobacco to state residents. Another section said that only licensed shippers may transport cigarettes to Maine residents.

In his opinion, Justice Stephen Breyer didn't buy it. He wrote:

Maine's inability to find significant support for some kind of "public health" exception is not surprising. "Public health" does not define itself. Many products create "public health" risks of differing kind and degree. To accept Maine's justification in respect to a rule regulating services would legitimate rules regulating routes or rates for similar public health reasons. And to allow Maine directly to regulate carrier services would permit other States to do the same.

Justice Ruth Bader Ginsburg concurred with the opinion, but said that the 1994 federal law was written to deal with the trucking industry--and Congress probably never envisioned the growth of online commerce (meaning, presumably, the rise of sites like and Ginsburg wrote:

State measures to prevent youth access to tobacco, however, are increasingly thwarted by the ease with which tobacco products can be purchased through the Internet...While I join the court's opinion, I doubt that the drafters of the (1994 law), a statute designed to deregulate the carriage of goods, anticipated the measure's facilitation of minors' access to tobacco. Now alerted to the problem, Congress has the capacity to act with care and dispatch to provide an effective solution. (Well, Congress as usual goes *overly broad* when trying to do something - they just stop all shipments via the mail, not just to kids but to everyone - they don't craft a narrow provision protecting minors (which they say is their purpose) - they just stop everyone in their tracks - and our taxes pay for this incompetence - all of the other carriers UPS, FedEx etc have made deals with the states not to ship these goods, rather than requiring proof of age - they just stop everyone from doing business over the Internet and this hurts Native American retailers)

The case was decided narrowly on federal preemption grounds, and the court did not discuss the Jenkins Act or arguments related to the dormant commerce clause. Also, for the record, the specific language at issue in the Maine statute didn't single out Internet sales (it's just that its effect was pretty Internet-specific).