 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          Syllabus

CIPOLLONE, INDIVIDUALLY AND AS EXECUTOR
 OF THE ESTATE OF CIPOLLONE v. LIGGETT
          GROUP, INC., et al.
certiorari to the united states court of appeals for
           the third circuit
No. 90-1038.   Argued October 8, 1991"Reargued January 13,
 1992"Decided June 24, 1992

Section 4 of the Federal Cigarette Labeling and Advertising Act (1965
Act) required a conspicuous label warning of smoking's health haz-
ards to be placed on every package of cigarettes sold in this country,
while 5 of that Act, captioned ``Preemption,'' provided:  ``(a) No
statement relating to smoking and health, other than the [4]
statement . . . , shall be required on any cigarette package,'' and ``(b)
No [such] statement . . . shall be required in the advertising of any
cigarettes the packages of which are labeled in conformity with'' 4.
Section 5(b) was amended by the Public Health Cigarette Smoking
Act of 1969 (1969 Act) to specify:  ``No requirement or prohibition
based on smoking and health shall be imposed under State law with
respect to the advertising or promotion of any cigarettes the packages
of which are [lawfully] labeled.''  Petitioner's complaint in his action
for damages invoked the District Court's diversity jurisdiction and
alleged, inter alia, that respondent cigarette manufacturers were
responsible for the 1984 death of his mother, a smoker since 1942,
because they breached express warranties contained in their advertis-
ing, failed to warn consumers about smoking's hazards, fraudulently
misrepresented those hazards to consumers, and conspired to deprive
the public of medical and scientific information about smoking, all in
derogation of duties created by New Jersey law.  The District Court
ultimately ruled, among other things, that these claims were pre-
empted by the 1965 and 1969 Acts to the extent that the claims
relied on respondents' advertising, promotional, and public relations
activities after the effective date of the 1965 Act.  The Court of
Appeals affirmed on this point.
Held:The judgment is reversed in part and affirmed in part, and the
case is remanded.
893 F.2d 541, reversed in part, affirmed in part, and remanded.
Justice Stevens delivered the opinion of the Court with respect
to Parts I, II, III, and IV, concluding that 5 of the 1965 Act did not
pre-empt state law damages actions, but superseded only positive
enactments by state and federal rulemaking bodies mandating
particular warnings on cigarette labels or in cigarette advertisements.
This conclusion is required by the section's precise and narrow
prohibition of required cautionary ``statement[s]''; by the strong
presumption against pre-emption of state police power regulations; by
the fact that the required 4 warning does not by its own effect
foreclose additional obligations imposed under state law; by the fact
that there is no general, inherent conflict between federal pre-emp-
tion of state warning requirements and the continued vitality of
common law damages actions; and by the Act's stated purpose and
regulatory context, which establish that 5 was passed to prevent a
multiplicity of pending and diverse ``regulations,'' a word that most
naturally refers to positive enactments rather than common law
actions.  Pp.11-13.
Justice Stevens, joined by The Chief Justice, Justice White,
and Justice O'Connor, concluded in Parts V and VI that 5(b) of
the 1969 Act pre-empts certain of petitioner's failure to warn and
fraudulent misrepresentation claims, but does not pre-empt other
such claims or the claims based on express warranty or conspiracy.
Pp.13-23.
(a)The broad language of amended 5(b) extends the section's
pre-emptive reach beyond positive enactments to include some
common law damages actions.  The statutory phrase ``requirement or
prohibition'' suggests no distinction between positive enactments and
common law, but, in fact, easily encompasses obligations that take
the form of common law rules, while the phrase ``imposed under
State law'' clearly contemplates common law as well as statutes and
regulations.  This does not mean, however, that 5(b) pre-empts all
common law claims, nor does the statute indicate that any familiar
subdivision of common law is or is not pre-empted.  Instead, the
precise language of 5(b) must be fairly but"in light of the presump-
tion against pre-emption"narrowly construed, and each of peti-
tioner's common law claims must be examined to determine whether
it is in fact pre-empted.  The central inquiry in each case is straight-
forward:  whether the legal duty that is the predicate of the common
law damages action satisfies 5(b)'s express terms, giving those terms
a fair but narrow reading.  Each phrase within the section limits the
universe of common law claims pre-empted by the statute.
Pp.11-17.
(b)Insofar as claims under either of petitioner's failure to warn
theories"i. e., that respondents were negligent in the manner that
they tested, researched, sold, promoted, and advertised their ciga-
rettes, and that they failed to provide adequate warnings of smok-
ing's consequences"require a showing that respondents' post-1969
advertising or promotions should have included additional, or more
clearly stated, warnings, those claims rely on a state law ``require-
ment or prohibition . . . with respect to . . . advertising or promotion''
within 5(b)'s meaning and are pre-empted.  Pp.17-18.
(c)To the extent that petitioner has a viable claim for breach of
express warranties, that claim is not pre-empted.  While the general
duty not to breach such warranties arises under state law, a manu-
facturer's liability for the breach derives from, and is measured by,
the terms of the warranty.  A common law remedy for a contractual
commitment voluntarily undertaken should not be regarded as a
``requirement . . . imposed under State law'' under 5(b).  Pp.18-20.
(d)Because 5(b) pre-empts ``prohibition[s]'' as well as ``require-
ment[s],'' it supersedes petitioner's first fraudulent misrepresentation
theory, which is predicated on a state law prohibition against adver-
tising and promotional statements tending to minimize smoking's
health hazards, and which alleges that respondents' advertising
neutralized the effect of the federally mandated warning labels.
However, the claims based on petitioner's second fraudulent misrepre-
sentation theory"which alleges intentional fraud both by false
representation and concealment of material facts"are not pre-
empted.  The concealment allegations, insofar as they rely on a state
law duty to disclose material facts through channels of communica-
tion other than advertising and promotions, do not involve an obliga-
tion ``with respect to'' those activities within 5(b)'s meaning.
Moreover, those fraudulent misrepresentation claims that do arise
with respect to advertising and promotions are not predicated on a
duty ``based on smoking and health'' but rather on a more general
obligation"the duty not to deceive.  Pp.20-23.
(e)Petitioner's claim alleging a conspiracy among respondents to
misrepresent or conceal material facts concerning smoking's health
hazards is not pre-empted, since the predicate duty not to conspire
to commit fraud that underlies that claim is not a prohibition ``based
on smoking and health'' as that 5(b) phrase is properly construed.
P.23.
Justice Blackmun, joined by Justice Kennedy and Justice
Souter, concluded that the modified language of 5(b) in the 1969
Act does not clearly exhibit the necessary congressional intent to pre-
empt state common-law damages actions, and therefore concurred in
the judgment that certain of petitioner's failure to warn and fraudu-
lent misrepresentation claims, as well as his express warranty and
conspiracy claims, are not pre-empted by that Act.  P.4.
Justice Scalia, joined by Justice Thomas, concluded that all of
petitioner's common-law claims are pre-empted by the 1969 Act under
ordinary principles of statutory construction, and therefore concurred
in the judgment that certain of his post-1969 failure-to-warn claims
and certain of his fraudulent misrepresentation claims are pre-
empted.  P.5.

Stevens, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III, and IV, in which
Rehnquist, C. J., and White, Blackmun, O'Connor, Kennedy, and
Souter, JJ., joined, and an opinion with respect to Parts V and VI, in
which Rehnquist, C. J., and White and O'Connor, JJ., joined.
Blackmun, J., filed an opinion concurring in part, concurring in the
judgment in part, and dissenting in part, in which Kennedy and
Souter, JJ., joined.  Scalia, J., filed an opinion concurring in the
judgment in part and dissenting in part, in which Thomas, J., joined.



NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
 
         SUPREME COURT OF THE UNITED STATES--------
                       No. 90-1038
                        --------
     THOMAS CIPOLLONE, individually and as executor
          of the estate of ROSE D. CIPOLLONE, PETITIONER
                  v. LIGGETT GROUP, INC., et al.
        on writ of certiorari to the united states court of
                   appeals for the third circuit
                          [June 24, 1992]

       Justice Stevens delivered the opinion of the Court,
except as to Parts V and VI.
       ``Warning:  The Surgeon General Has Determined
That Cigarette Smoking Is Dangerous to Your
Health.''  A federal statute enacted in 1969 requires that
warning (or a variation thereof) to appear in a conspicuous
place on every package of cigarettes sold in the United States.
The questions presented to us by thiscase are whether that
statute, or its 1965 predecessor which required a less alarming
label, pre-empted petitioner's common law claims against
respondent cigarette manufacturers.
       Petitioner is the son of Rose Cipollone, who began
smoking in 1942 and who died of lung cancer in 1984.  He
claims that respondents are responsible for Rose Cipollone's
death because they breached express warranties contained
in their advertising, because they failed to warn consumers
about the hazards of smoking, because they fraudulently
misrepresented those hazards to consumers, and because
they conspired to deprive the public of medical and scien-
tific information about smoking.  The Court of Appeals held that
petitioner's state law claims were pre-empted by
federal statutes, 893 F. 2d 541 (CA3 1990), and other courts
have agreed with that analysis.  The highest courts of the
States of Minnesota and New Jersey, however, have held
that the federal statutes did not pre-empt similar common
law claims.  Because of the manifest importance of the
issue, we granted certiorari to resolve the conflict, 500 U. S.
--- (1991).  We now reverse in part and affirm in part.

                                 I
       On August 1, 1983, Rose Cipollone and her husband filed
a complaint invoking the diversity jurisdiction of the
Federal District Court.  Their complaint alleged that Rose
Cipollone developed lung cancer because she smoked
cigarettes manufactured and sold by the three respondents.
After her death in 1984, her husband filed an amended
complaint.  After trial, he also died; their son, executor of
both estates, now maintains this action.
       Petitioner's third amended complaint alleges several
different bases of recovery, relying on theories of strict
liability, negligence, express warranty, and intentional tort.
These claims, all based on New Jersey law, divide into five
categories.  The ``design defect claims'' allege that respond-
ents' cigarettes were defective because respondents failed to
use a safer alternative design for their products and
because the social value of their product was outweighed by
the dangers it created (Count 2, App. 83-84).  The ``failure
to warn claims'' allege both that the product was ``defective
as a result of [respondents'] failure to provide adequate
warnings of the health consequences of cigarette smoking''
(Count 3, App. 85) and that respondents ``were negligent in
the manner [that] they tested, researched, sold, promoted,
and advertised'' their cigarettes (Count 4, App. 86).  The
``express warranty claims'' allege that respondents had
``expressly warranted that smoking the cigarettes which
they manufactured and sold did not present any significant
health consequences'' (Count 7, App. 88).  The ``fraudulent
misrepresentation claims'' allege that respondents had
wilfully ``through their advertising, attempted to neutralize
the [federally mandated] warnin[g]'' labels (Count 6, App.
87-88), and that they had possessed, but had ``ignored and
failed to act upon'' medical and scientific data indicating
that ``cigarettes were hazardous to the health of consumers''
(Count 8, App. 89).  Finally, the ``conspiracy to defraud
claims'' allege that respondents conspired to deprive the
public of such medical and scientific data (Count 8, App.
89).
       As one of their defenses, respondents contended that the
Federal Cigarette Labeling and Advertising Act, enacted
in 1965, and its successor, the Public Health Cigarette
Smoking Act of 1969, protected them from any liability
based on their conduct after 1965.  In a pretrial ruling, the
District Court concluded that the federal statutes were
intended to establish a uniform warning that would prevail
throughout the country and that would protect cigarette
manufacturers from being ``subjected to varying require-
ments from state to state,'' Cipollone v. Liggett Group, Inc.,
593 F. Supp. 1146, 1148 (NJ 1984), but that the statutes
did not pre-empt common law actions.  Id., at 1153-1170.
Accordingly, the court granted a motion to strike the pre-
emption defense entirely.
       The Court of Appeals accepted an interlocutory appeal
pursuant to 28 U. S. C. 1292(b), and reversed.  Cipollone
v. Liggett Group, Inc., 789 F.2d 181 (CA3 1986).  The court
rejected respondents' contention that the federal Acts
expressly pre-empted common law actions, but accepted
their contention that such actions would conflict with
federal law.  Relying on the statement of purpose in the
statutes, the court concluded that Congress' ``carefully
drawn balance between the purposes of warning the public
of the hazards of cigarette smoking and protecting the
interests of the national economy'' would be upset by state
law damages actions based on noncompliance with ``warn-
ing, advertisement, and promotion obligations other than
those prescribed in the [federal] Act.''  Id., at 187.  Accord-
ingly, the court held:
         ``the Act pre-empts those state law damage[s] actions
         relating to smoking and health that challenge either
         the adequacy of the warning on cigarette packages or
         the propriety of a party's actions with respect to the
         advertising and promotion of cigarettes.  [W]here the
         success of a state law damage[s] claim necessarily
         depends on the assertion that a party bore the duty to
         provide a warning to consumers in addition to the
         warning Congress has required on cigarette packages,
         such claims are pre-empted as conflicting with the Act.''
         Ibid. (footnote omitted).
The court did not, however, identify the specific claims
asserted by petitioner that were pre-empted by the Act.
       This Court denied a petition for certiorari, 479 U. S. 1043
(1987), and the case returned to the District Court for trial.
Complying with the Court of Appeals mandate, the District
Court held that the failure to warn, express warranty,
fraudulent misrepresentation, and conspiracy to defraud
claims were barred to the extent that they relied on
respondents' advertising, promotional, and public relations
activities after January 1, 1966 (the effective date of the
1965 Act).  Cipollone v. Liggett Group, Inc., 649 F. Supp.
664, 669, 673-675 (NJ 1986).  The court also ruled that
while the design defect claims were not pre-empted by
federal law, those claims were barred on other grounds.
Id., at 669-672.  Following extensive discovery and a four-
month trial, the jury answered a series of special interroga-
tories and awarded $400,000 in damages to Rose Cipollone's
husband.  In brief, it rejected all of the fraudulent misrepre-
sentation and conspiracy claims, but found that respondent
Liggett had breached its duty to warn and its express
warranties before 1966.  It found, however, that Rose
Cipollone had ``voluntarily and unreasonably encounter[ed]
a known danger by smoking cigarettes'' and that 80% of the
responsibility for her injuries was attributable to her.  See
893 F.2d, at 554 (summarizing jury findings).  For that
reason, no damages were awarded to her estate.  However,
the jury awarded damages to compensate her husband for
losses caused by respondents' breach of express warranty.
       On cross-appeals from the final judgment, the Court of
Appeals affirmed the District Court's pre-emption rulings
but remanded for a new trial on several issues not relevant
to our decision.  We granted the petition for certiorari to
consider the pre-emptive effect of the federal statutes.

                                II
       Although physicians had suspected a link between
smoking and illness for centuries, the first medical studies
of that connection did not appear until the 1920s.  See U. S.
Dept. of Health and Human Services, Report of the Surgeon
General, Reducing the Health Consequences of Smoking:
25 Years of Progress 5 (1989).  The ensuing decades saw a
wide range of epidemiologic and laboratory studies on the
health hazards of smoking.  Thus, by the time the Surgeon
General convened an advisory committee to examine the
issue in 1962, there were more than 7,000 publications
examining the relationship between smoking and health.
Id., at 5-7.
       In 1964, the advisory committee issued its report, which
stated as its central conclusion:  ``Cigarette smoking is a
health hazard of sufficient importance in the United States
to warrant appropriate remedial action.''  U. S. Dept. of
Health, Education, and Welfare, U. S. Surgeon General's
Advisory Committee, Smoking and Health 33 (1964).
Relying in part on that report, the Federal Trade Commis-
sion (FTC), which had long regulated unfair and deceptive
advertising practices in the cigarette industry, promul-
gated a new trade regulation rule.  That rule, which was to
take effect January 1, 1965, established that it would be a
violation of the Federal Trade Commission Act ``to fail to
disclose, clearly and prominently, in all advertising and on
every pack, box, carton, or container [of cigarettes] that
cigarette smoking is dangerous to health and may cause
death from cancer and other diseases.''  29 Fed. Reg. 8325
(1964).  Several States also moved to regulate the advertis-
ing and labeling of cigarettes.  See, e.g., 1965 N.Y. Laws,
ch.470; see also 111 Cong. Rec. 13900-13902 (1965)
(statement of Sen. Moss).  Upon a congressional request,
the FTC postponed enforcement of its new regulation for six
months.  In July 1965, Congress enacted the Federal
Cigarette Labeling and Advertising Act.  The 1965 Act
effectively adopted half of the FTC's regulation:  the Act
mandated warnings on cigarette packages (5(a)), but
barred the requirement of such warnings in cigarette
advertising (5(b)).
       Section 2 of the Act declares the statute's two purposes:
(1) adequately informing the public that cigarette smoking
may be hazardous to health, and (2) protecting the national
economy from the burden imposed by diverse, nonuniform
and confusing cigarette labeling and advertising regula-
tions.  In furtherance of the first purpose, 4 of the Act
made it unlawful to sell or distribute any cigarettes in the
United States unless the package bore a conspicuous label
stating:  ``Caution:  Cigarette Smoking May Be Hazard-
ous to Your Health.''  In furtherance of the second
purpose, 5, captioned ``Preemption,'' provided in part:
         ``(a)No statement relating to smoking and health,
         other than the statement required by section 4 of this
         Act, shall be required on any cigarette package.
         ``(b)No statement relating to smoking and health shall
         be required in the advertising of any cigarettes the
         packages of which are labeled in conformity with the
         provisions of this Act.''

Although the Act took effect January 1, 1966, 10 of the
Act provided that its provisions affecting the regulation of
advertising would terminate on July 1, 1969.
       As that termination date approached, federal authorities
prepared to issue further regulations on cigarette advertis-
ing.  The FTC announced the reinstitution of its 1964
proceedings concerning a warning requirement for cigarette
advertisements.  34 Fed. Reg. 7917 (1969).  The Federal
Communications Commission (FCC) announced that it
would consider ``a proposed rule which would ban the
broadcast of cigarette commercials by radio and television
stations.''  34 Fed. Reg. 1959 (1969).  State authorities also
prepared to take actions regulating cigarette advertise-
ments.
       It was in this context that Congress enacted the Public
Health Cigarette Smoking Act of 1969, which amended
the 1965 Act in several ways.  First, the 1969 Act strength-
ened the warning label, in part by requiring a statement
that cigarette smoking ``is dangerous'' rather than that it
``may be hazardous.''  Second, the 1969 Act banned cigarette
advertising in ``any medium of electronic communication
subject to [FCC] jurisdiction.''  Third, and related, the 1969
Act modified the pre-emption provision by replacing the
original 5(b) with a provision that reads:
       ``(b)No requirement or prohibition based on smoking
         and health shall be imposed under State law with
         respect to the advertising or promotion of any ciga-
         rettes the packages of which are labeled in conformity
         with the provisions of this Act.''
Although the Act also directed the FTC not to ``take any
action before July 1, 1971, with respect to its pending trade
regulation rule proceeding relating to cigarette advertising,''
the narrowing of the pre-emption provision to prohibit only
restrictions ``imposed under State law'' cleared the way for
the FTC to extend the warning-label requirement to print
advertisements for cigarettes.  The FTC did so in 1972.  See
In re Lorillard, 80 F.T.C. 455 (1972).

                                III
       Article VI of the Constitution provides that the laws of
the United States ``shall be the supreme Law of the Land;
. . . any Thing in the Constitution or Laws of any state to
the Contrary notwithstanding.''  Art. VI, cl. 2.  Thus, since
our decision in McCulloch v. Maryland, 4 Wheat. 316, 427
(1819), it has been settled that state law that conflicts with
federal law is ``without effect.''  Maryland v. Louisiana, 451
U. S. 725, 746 (1981).  Consideration of issues arising under
the Supremacy Clause ``start[s] with the assumption that
the historic police powers of the States [are] not to be
superseded by . . . Federal Act unless that [is] the clear and
manifest purpose of Congress.''  Rice v. Santa Fe Elevator
Corp., 331 U. S. 218, 230 (1947).  Accordingly, ```[t]he
purpose of Congress is the ultimate touchstone''' of pre-
emption analysis.  Malone v. White Motor Corp., 435 U. S.
497, 504 (1978) (quoting Retail Clerks v. Schermerhorn, 375
U. S. 96, 103 (1963)).
    Congress' intent may be ``explicitly stated in the statute's
language or implicitly contained in its structure and
purpose.''  Jones v. Rath Packing Co., 430 U. S. 519, 525
(1977).  In the absence of an express congressional com-
mand, state law is pre-empted if that law actually conflicts
with federal law, see Pacific Gas & Elec. Co. v. Energy
Resources Conservation and Development Comm'n, 461 U. S.
190, 204 (1983), or if federal law so thoroughly occupies a
legislative field ```as to make reasonable the inference that
Congress left no room for the States to supplement it.'''
Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458
U. S. 141, 153 (1982) (quoting Rice v. Santa Fe Elevator
Corp., 331 U. S., at 230).
       The Court of Appeals was not persuaded that the pre-
emption provision in the 1969 Act encompassed state
common law claims.  789 F.2d, at 185-186.  It was also
not persuaded that the labeling obligation imposed by both
the 1965 and 1969 Acts revealed a congressional intent to
exert exclusive federal control over every aspect of the
relationship between cigarettes and health.  Id., at 186.
Nevertheless, reading the statute as a whole in the light of
the statement of purpose in 2, and considering the
potential regulatory effect of state common law actions on
the federal interest in uniformity, the Court of Appeals
concluded that Congress had impliedly pre-empted petition-
er's claims challenging the adequacy of the warnings on
labels or in advertising or the propriety of respondents'
advertising and promotional activities.  Id., at 187.
    In our opinion, the pre-emptive scope of the 1965 Act and
the 1969 Act is governed entirely by the express language
in 5 of each Act.  When Congress has considered the issue
of pre-emption and has included in the enacted legislation
a provision explicitly addressing that issue, and when that
provision provides a ``reliable indicium of congressional
intent with respect to state authority,'' Malone v. White
Motor Corp., 435 U. S., at 505, ``there is no need to infer
congressional intent to pre-empt state laws from the
substantive provisions'' of the legislation.  California
Federal Savings & Loan Assn. v. Guerra, 479 U. S. 272, 282
(1987) (opinion of Marshall, J.).  Such reasoning is a variant
of the familiar principle of expressio unius est exclusio
alterius: Congress' enactment of a provision defining the
pre-emptive reach of a statute implies that matters beyond
that reach are not pre-empted.  In this case, the other
provisions of the 1965 and 1969 Acts offer no cause to look
beyond 5 of each Act.  Therefore, we need only identify the
domain expressly pre-empted by each of those sections.  As
the 1965 and 1969 provisions differ substantially, we
consider each in turn.

                                IV
       In the 1965 pre-emption provision regarding advertising
(5(b)), Congress spoke precisely and narrowly:  ``No
statement relating to smoking and health shall be required
in the advertising of [properly labeled] cigarettes.''  Section
5(a) used the same phrase (``No statement relating to
smoking and health'') with regard to cigarette labeling.  As
5(a) made clear, that phrase referred to the sort of
warning provided for in 4, which set forth verbatim the
warning Congress determined to be appropriate.  Thus, on
their face, these provisions merely prohibited state and
federal rule-making bodies from mandating particular
cautionary statements on cigarette labels (5(a)) or in
cigarette advertisements (5(b)).
     Beyond the precise words of these provisions, this reading
is appropriate for several reasons.  First, as discussed
above, we must construe these provisions in light of the
presumption against the pre-emption of state police power
regulations.  This presumption reinforces the appropriate-
ness of a narrow reading of 5.  Second, the warning
required in 4 does not by its own effect foreclose additional
obligations imposed under state law.  That Congress
requires a particular warning label does not automatically
pre-empt a regulatory field.  See McDermott v. Wisconsin,
228 U. S. 115, 131-132 (1913).  Third, there is no general,
inherent conflict between federal pre-emption of state
warning requirements and the continued vitality of state
common law damages actions.  For example, in the Compre-
hensive Smokeless Tobacco Health Education Act of
1986, Congress expressly pre-empted State or local
imposition of a ``statement relating to the use of smokeless
tobacco products and health'' but, at the same time,
preserved state law damages actions based on those
products.  See 15 U. S. C. 4406.  All of these consider-
ations indicate that 5 is best read as having superseded
only positive enactments by legislatures or administrative
agencies that mandate particular warning labels.
       This reading comports with the 1965 Act's statement of
purpose, which expressed an intent to avoid ``diverse,
nonuniform, and confusing labeling and advertising
regulations with respect to any relationship between
smoking and health.''  Read against the backdrop of
regulatory activity undertaken by state legislatures and
federal agencies in response to the Surgeon General's
report, the term ``regulation'' most naturally refers to
positive enactments by those bodies, not to common law
damages actions.
       The regulatory context of the 1965 Act also supports such
a reading.  As noted above, a warning requirement promul-
gated by the FTC and other requirements under consider-
ation by the States were the catalyst for passage of the
1965 Act.  These regulatory actions animated the passage
of 5, which reflected Congress' efforts to prevent ``a
multiplicity of State and local regulations pertaining to
labeling of cigarette packages,'' H.R. Rep. No. 89-449, 89th
Cong., 1st Sess., 4 (1965), and to ``pre-empt [all] Federal,
State, and local authorit[ies] from requiring any statement
. . . relating to smoking and health in the advertising of
cigarettes.''  Id., at 5 (emphasis supplied).
       For these reasons, we conclude that 5 of the 1965 Act
only pre-empted state and federal rulemaking bodies from
mandating particular cautionary statements and did not
pre-empt state law damages actions.

                                 V
       Compared to its predecessor in the 1965 Act, the plain
language of the pre-emption provision in the 1969 Act is
much broader.  First, the later Act bars not simply ``state-
ments'' but rather ``requirement[s] or prohibition[s] . . . im-
posed under State law.''  Second, the later Act reaches
beyond statements ``in the advertising'' to obligations ``with
respect to the advertising or promotion'' of cigarettes.
       Notwithstanding these substantial differences in lan-
guage, both petitioner and respondents contend that the
1969 Act did not materially alter the pre-emptive scope of
federal law.  Their primary support for this contention is
a sentence in a Committee Report which states that the
1969 amendment ``clarified'' the 1965 version of 5(b).  S.
Rep. No. 91-566, p. 12 (1969).  We reject the parties'
reading as incompatible with the language and origins of
the amendments.  As we noted in another context, ``[i]nfer-
ences from legislative history cannot rest on so slender a
reed.  Moreover, the views of a subsequent Congress form
a hazardous basis for inferring the intent of an earlier one.''
United States v. Price, 361 U. S. 304, 313 (1960).  The 1969
Act worked substantial changes in the law: rewriting the
label warning, banning broadcast advertising, and allowing
the FTC to regulate print advertising.  In the context of
such revisions and in light of the substantial changes in
wording, we cannot accept the parties' claim that the 1969
Act did not alter the reach of 5(b).
       Petitioner next contends that 5(b), however broadened
by the 1969 Act, does not pre-empt common law actions.
He offers two theories for limiting the reach of the amended
5(b).  First, he argues that common law damages actions
do not impose ``requirement[s] or prohibition[s]'' and that
Congress intended only to trump ``state statute[s], injunc-
tion[s], or executive pronouncement[s].''  We disagree;
such an analysis is at odds both with the plain words of
the 1969 Act and with the general understanding of
common law damages actions.  The phrase ``[n]o require-
ment or prohibition'' sweeps broadly and suggests no
distinction between positive enactments and common law;
to the contrary, those words easily encompass obligations
that take the form of common law rules.  As we noted in
another context, ``[state] regulation can be as effectively
exerted through an award of damages as through some
form of preventive relief.  The obligation to pay compensa-
tion can be, indeed is designed to be, a potent method of
governing conduct and controlling policy.''  San Diego
Building Trades Council v. Garmon, 359 U. S. 236, 247
(1959).
       Although portions of the legislative history of the 1969
Act suggest that Congress was primarily concerned with
positive enactments by States and localities, see S. Rep. No.
91-566, p. 12, the language of the Act plainly reaches
beyond such enactments.  ``We must give effect to this plain
language unless there is good reason to believe Congress
intended the language to have some more restrictive
meaning.''  Shaw v. Delta Air Lines, Inc., 463 U. S. 85, 97
(1983).  In this case there is no ``good reason to believe'' that
Congress meant less than what it said; indeed, in light of
the narrowness of the 1965 Act, there is ``good reason to
believe'' that Congress meant precisely what it said in
amending that Act.
       Moreover, common law damages actions of the sort raised
by petitioner are premised on the existence of a legal duty
and it is difficult to say that such actions do not impose
``requirements or prohibitions.''  See W. Prosser, Law of
Torts 4 (4th ed. 1971); Black's Law Dictionary 1489 (6th ed.
1990) (defining ``tort'' as ``always [involving] a violation of
some duty owing to plaintiff'').  It is in this way that the
1969 version of 5(b) differs from its predecessor:  Whereas
the common law would not normally require a vendor to use
any specific statement on its packages or in its advertise-
ments, it is the essence of the common law to enforce duties
that are either affirmative requirements or negative
prohibitions.  We therefore reject petitioner's argument that
the phrase ``requirement or prohibition'' limits the 1969
Act's pre-emptive scope to positive enactments by legisla-
tures and agencies.
       Petitioner's second argument for excluding common law
rules from the reach of 5(b) hinges on the phrase ``imposed
under State law.''  This argument fails as well.  At least
since Erie R. v. Tompkins, 304 U. S. 64 (1938), we have
recognized the phrase ``state law'' to include common law as
well as statutes and regulations.  Indeed just last Term, the
Court stated that the phrase ``all other law, including State
and municipal law'' ``does not admit of [a] distinction . . .
between positive enactments and common-law rules of
liability.''  Norfolk & Western R. Co. v. Train Dispatchers,
499 U. S. ---, --- (1991) (slip op., at 11).  Although the
presumption against pre-emption might give good reason to
construe the phrase ``state law'' in a pre-emption provision
more narrowly than an identical phrase in another context,
in this case such a construction is not appropriate.  As
explained above, the 1965 version of 5 was precise and
narrow on its face; the obviously broader language of the
1969 version extended that section's pre-emptive reach.
Moreover, while the version of the 1969 Act passed by the
Senate pre-empted ``any State statute or regulation with
respect to . . . advertising or promotion,'' S. Rep. No.
91-566, p. 16, the Conference Committee replaced this
language with ``State law with respect to advertising or
promotion.''  In such a situation, 5(b)'s pre-emption of
``state law'' cannot fairly be limited to positive enactments.
       That the pre-emptive scope of 5(b) cannot be limited to
positive enactments does not mean that that section pre-
empts all common law claims.  For example, as respondents
concede, 5(b) does not generally pre-empt ``state-law
obligations to avoid marketing cigarettes with manufactur-
ing defects or to use a demonstrably safer alternative
design for cigarettes.''  For purposes of 5(b), the common
law is not of a piece.
       Nor does the statute indicate that any familiar subdivi-
sion of common law claims is or is not pre-empted.  We
therefore cannot follow petitioner's passing suggestion that
5(b) pre-empts liability for omissions but not for acts, or
that 5(b) pre-empts liability for unintentional torts but not
for intentional torts.  Instead we must fairly but"in light
of the strong presumption against pre-emption"narrowly
construe the precise language of 5(b) and we must look to
each of petitioner's common law claims to determine
whether it is in fact pre-empted.  The central inquiry in
each case is straightforward:  we ask whether the legal
duty that is the predicate of the common law damages
action constitutes a ``requirement or prohibition based on
smoking and health . . . imposed under State law with
respect to . . . advertising or promotion,'' giving that clause
a fair but narrow reading.  As discussed below, each phrase
within that clause limits the universe of common law claims
pre-empted by the statute.
       We consider each category of damages actions in turn.  In
doing so, we express no opinion on whether these actions
are viable claims as a matter of state law; we assume
arguendo that they are.

Failure to Warn
       To establish liability for a failure to warn, petitioner must
show that ``a warning is necessary to make a product . . .
reasonably safe, suitable and fit for its intended use,'' that
respondents failed to provide such a warning, and that that
failure was a proximate cause of petitioner's injury.  Tr.
12738.  In this case, petitioner offered two closely related
theories concerning the failure to warn:  first, that respon-
dents ``were negligent in the manner [that] they tested,
researched, sold, promoted, and advertised'' their cigarettes;
and second, that respondents failed to provide ``adequate
warnings of the health consequences of cigarette smoking.''
App. 85-86.
       Petitioner's claims are pre-empted to the extent that they
rely on a state law ``requirement or prohibition . . . with
respect to . . . advertising or promotion.''  Thus, insofar as
claims under either failure to warn theory require a
showing that respondents' post-1969 advertising or promo-
tions should have included additional, or more clearly
stated, warnings, those claims are pre-empted.  The Act
does not, however, pre-empt petitioner's claims that rely
solely on respondents' testing or research practices or other
actions unrelated to advertising or promotion.

Breach of Express Warranty
       Petitioner's claim for breach of an express warranty
arises under N. J. Stat. Ann. 12A:2-313(1)(a) (West 1991),
which provides:
                    ``Any affirmation of fact or promise made by the
         seller to the buyer which relates to the goods and
         becomes part of the basis of the bargain creates an
         express warranty that the goods shall conform to the
         affirmation or promise.''
         Petitioner's evidence of an express warranty consists largely
         of statements made in respondents' advertising.  See 893
         F. 2d, at 574, 576; 683 F. Supp. 1487, 1497 (NJ 1988).
         Applying the Court of Appeals' ruling that Congress pre-
         empted ``damage[s] actions . . . that challenge . . . the
         propriety of a party's actions with respect to the advertising
         and promotion of cigarettes,'' 789 F.2d, at 187, the District
         Court ruled that this claim ``inevitably brings into question
         [respondents'] advertising and promotional activities, and
         is therefore pre-empted'' after 1965.  649 F. Supp., at 675.
         As demonstrated above, however, the 1969 Act does not
         sweep so broadly:  the appropriate inquiry is not whether
         a claim challenges the ``propriety'' of advertising and
         promotion, but whether the claim would require the
         imposition under state law of a requirement or prohibition
         based on smoking and health with respect to advertising or
         promotion.
       A manufacturer's liability for breach of an express
warranty derives from, and is measured by, the terms of
that warranty.  Accordingly, the ``requirements'' imposed by
a express warranty claim are not ``imposed under State
law,'' but rather imposed by the warrantor.  If, for exam-
ple, a manufacturer expressly promised to pay a smoker's
medical bills if she contracted emphysema, the duty to
honor that promise could not fairly be said to be ``imposed
under state law,'' but rather is best understood as under-
taken by the manufacturer itself.  While the general duty
not to breach warranties arises under state law, the
particular  requirement . . . based on smoking and health
. . . with respect to the advertising or promotion [of]
cigarettes in an express warranty claim arises from the
manufacturer's statements in its advertisements.  In short,
a common law remedy for a contractual commitment
voluntarily undertaken should not be regarded as a
``requirement . . . imposed under State law'' within the
meaning of 5(b).
       That the terms of the warranty may have been set forth
in advertisements rather than in separate documents is
irrelevant to the pre-emption issue (though possibly not to
the state law issue of whether the alleged warranty is valid
and enforceable) because although the breach of warranty
claim is made ``with respect to advertising'' it does not rest
on a duty imposed under state law.  Accordingly, to the
extent that petitioner has a viable claim for breach of
express warranties made by respondents, that claim is not
pre-empted by the 1969 Act.

Fraudulent Misrepresentation
       Petitioner alleges two theories of fraudulent misrepresen-
tation.  First, petitioner alleges that respondents, through
their advertising, neutralized the effect of federally man-
dated warning labels.  Such a claim is predicated on a
state-law prohibition against statements in advertising and
promotional materials that tend to minimize the health
hazards associated with smoking.  Such a prohibition,
however, is merely the converse of a state law requirement
that warnings be included in advertising and promotional
materials.  Section 5(b) of the 1969 Act pre-empts both
requirements and prohibitions; it therefore supersedes
petitioner's first fraudulent misrepresentation theory.
       Regulators have long recognized the relationship between
prohibitions on advertising that downplays the dangers of
smoking and requirements for warnings in advertisements.
For example, the FTC, in promulgating its initial trade
regulation rule in 1964, criticized advertising that ``asso-
ciated cigarette smoking with such positive attributes as
contentment, glamour, romance, youth, happiness . . . at the
same time suggesting that smoking is an activity at least
consistent with physical health and well-being.''  The
Commission concluded:
         ``To avoid giving a false impression that smoking [is]
         innocuous, the cigarette manufacturer who represents
         the alleged pleasures or satisfactions of cigarette
         smoking in his advertising must also disclose the
         serious risks to life that smoking involves.''  29 Fed.
         Reg., at 8356.
         Long-standing regulations of the Food and Drug Adminis-
tration express a similar understanding of the relationship
between required warnings and advertising that ``negates
or disclaims'' those warnings:  ``A hazardous substance shall
not be deemed to have met [federal labeling] requirements
if there appears in or on the label . . . statements, designs,
or other graphic material that in any manner negates or
disclaims [the required warning].''  21 CFR 191.102 (1965).
In this light it seems quite clear that petitioner's first
theory of fraudulent misrepresentation is inextricably
related to petitioner's first failure to warn theory, a theory
that we have already concluded is largely pre-empted by
5(b).
    Petitioner's second theory, as construed by the District
Court, alleges intentional fraud and misrepresentation both
by ``false representation of a material fact [and by] con-
ceal[ment of] a material fact.''  Tr. 12727.  The predicate
of this claim is a state law duty not to make false state-
ments of material fact or to conceal such facts.  Our pre-
emption analysis requires us to determine whether such a
duty is the sort of requirement or prohibition proscribed by
5(b).
       Section 5(b) pre-empts only the imposition of state law
obligations ``with respect to the advertising or promotion'' of
cigarettes.  Petitioner's claims that respondents concealed
material facts are therefore not pre-empted insofar as those
claims rely on a state law duty to disclose such facts
through channels of communication other than advertising
or promotion.  Thus, for example, if state law obliged
respondents to disclose material facts about smoking and
health to an administrative agency, 5(b) would not pre-
empt a state law claim based on a failure to fulfill that
obligation.
       Moreover, petitioner's fraudulent misrepresentation
claims that do arise with respect to advertising and
promotions (most notably claims based on allegedly false
statements of material fact made in advertisements) are not
pre-empted by 5(b).  Such claims are not predicated on a
duty ``based on smoking and health'' but rather on a more
general obligation"the duty not to deceive.  This under-
standing of fraud by intentional misstatement is appropri-
ate for several reasons.  First, in the 1969 Act, Congress
offered no sign that it wished to insulate cigarette manufac-
turers from longstanding rules governing fraud.  To the
contrary, both the 1965 and the 1969 Acts explicitly
reserved the FTC's authority to identify and punish
deceptive advertising practices"an authority that the FTC
had long exercised and continues to exercise.  See 5(c) of
the 1965 Act; 7(b) of the 1969 Act; see also nn.7, 9, supra.
This indicates that Congress intended the phrase ``relating
to smoking and health'' (which was essentially unchanged
by the 1969 Act) to be construed narrowly, so as not to
proscribe the regulation of deceptive advertising.
       Moreover, this reading of ``based on smoking and health''
is wholly consistent with the purposes of the 1969 Act.
State law prohibitions on false statements of material fact
do not create ``diverse, nonuniform, and confusing'' stan-
dards.  Unlike state law obligations concerning the warning
necessary to render a product ``reasonably safe,'' state law
proscriptions on intentional fraud rely only on a single,
uniform standard: falsity.  Thus, we conclude that the
phrase ``based on smoking and health'' fairly but narrowly
construed does not encompass the more general duty not to
make fraudulent statements.  Accordingly, petitioner's
claim based on allegedly fraudulent statements made in
respondents' advertisements are not pre-empted by 5(b) of
the 1969 Act.
Conspiracy to Misrepresent or Conceal Material Facts
       Petitioner's final claim alleges a conspiracy among
respondents to misrepresent or conceal material facts
concerning the health hazards of smoking.  The predicate
duty underlying this claim is a duty not to conspire to
commit fraud.  For the reasons stated in our analysis of
petitioner's intentional fraud claim, this duty is not pre-
empted by 5(b) for it is not a prohibition ``based on
smoking and health'' as that phrase is properly construed.
Accordingly, we conclude that the 1969 Act does not pre-
empt petitioner's conspiracy claim.

                                VI
       To summarize our holding: The 1965 Act did not pre-empt
state law damages actions; the 1969 Act pre-empts
petitioner's claims based on a failure to warn and the
neutralization of federally mandated warnings to the extent
that those claims rely on omissions or inclusions in respon-
dents' advertising or promotions; the 1969 Act does not pre-
empt petitioner's claims based on express warranty,
intentional fraud and misrepresentation, or conspiracy.
       The judgment of the Court of Appeals is accordingly
reversed in part and affirmed in part, and the case is
remanded for further proceedings consistent with this
opinion.
       It is so ordered.



            SUPREME COURT OF THE UNITED STATES--------
                       No. 90-1038
                        --------
     THOMAS CIPOLLONE, individually and as executor
          of the estate of ROSE D. CIPOLLONE, PETITIONER
                  v. LIGGETT GROUP, INC., et al.
        on writ of certiorari to the united states court of
                   appeals for the third circuit
                          [June 24, 1992]

       Justice Blackmun, with whom Justice Kennedy and
Justice Souter join, concurring in part, concurring in the
judgment in part, and dissenting in part.
                                 I
       The Court today would craft a compromise position
concerning the extent to which federal law pre-empts
persons injured by cigarette manufacturers' unlawful
conduct from bringing state common-law damages claims
against those manufacturers.  I, however, find the Court's
divided holding with respect to the original and amended
versions of the federal statute entirely unsatisfactory.  Our
precedents do not allow us to infer a scope of pre-emption
beyond that which clearly is mandated by Congress'
language.  In my view, neither version of the federal
legislation at issue here provides the kind of unambiguous
evidence of congressional intent necessary to displace state
common-law damages claims.  I therefore join parts I, II,
III, and IV of the Court's opinion, but dissent from parts V
and VI.
                                 A
       I agree with the Court's exposition, in part III of its
opinion, of the underlying principles of pre-emption law,
and in particular with its recognition that the pre-emptive
scope of the Federal Cigarette Labeling and Advertising Act
(the 1965 Act) and the Public Health Cigarette Smoking Act
of 1969 (the 1969 Act) is  governed entirely by the express
language of the statutes' pre-emption provisions.  Ante, at
10.  Where, as here, Congress has included in legislation a
specific provision addressing"and indeed, entitled"pre-
emption, the Court's task is one of statutory interpreta-
tion"only to  identify the domain expressly pre-empted by
the provision.  Ante, at 11.  An interpreting court must
 `begin with the language employed by Congress and the
assumption that the ordinary meaning of that language
accurately expresses the legislative purpose.'  FMC Corp.
v. Holliday, 498 U. S. ___, ___ (1990) (slip op. 4), quoting
Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U. S. 189,
194 (1985).  See California Coastal Comm'n. v. Granite
Rock Co., 480 U. S. 572, 591-593 (1987); California Federal
Savings & Loan Assn. v. Guerra, 479 U. S. 272, 282 (1987)
(opinion of Marshall, J.).  We resort to principles of implied
pre-emption"that is, inquiring whether Congress has
occupied a particular field with the intent to supplant state
law or whether state law actually conflicts with federal law,
see English v. General Electric Co., 496 U. S. 72, 79
(1990)"only when Congress has been silent with respect to
pre-emption.
       I further agree with the Court that we cannot find the
state common-law damages claims at issue in this case pre-
empted by federal law in the absence of clear and unambig-
uous evidence that Congress intended that result.  See ante,
at 9.  The Court describes this reluctance to infer pre-
emption in ambiguous cases as a  presumption against the
pre-emption of state police power regulations.  Ante, at
11-12.  Although many of the cases in which the Court has
invoked such a presumption against displacement of state
law have involved implied pre-emption, see, e.g., Florida
Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132,
146-152 (1963); Rice v. Santa Fe Elevator Corp., 331 U. S.
218, 236-237 (1947), this Court often speaks in general
terms without reference to the nature of the pre-emption at
issue in the given statutory scheme.  See, e.g., Maryland v.
Louisiana, 451 U. S. 725, 746 (1981) ( Consideration under
the Supremacy Clause starts with the basic assumption
that Congress did not intend to displace state law);
Avocado Growers, 373 U. S., at 146-147 ( [W]e are not to
conclude that Congress legislated the ouster of this [state]
statute . . . in the absence of an unambiguous congressional
mandate to that effect); Bethlehem Steel Co. v. New York
State Labor Relations Bd., 330 U. S. 767, 780 (1947) ( Any
indulgence in construction should be in favor of the States,
because Congress can speak with drastic clarity whenever
it chooses to assure full federal authority, completely
displacing the States) (opinion of Frankfurter, J.).
       The principles of federalism and respect for state
sovereignty that underlie the Court's reluctance to find pre-
emption where Congress has not spoken directly to the
issue apply with equal force where Congress has spoken,
though ambiguously.  In such cases, the question is not
whether Congress intended to pre-empt state regulation, but
to what extent.  We do not, absent unambiguous evidence,
infer a scope of pre-emption beyond that which clearly is
mandated by Congress' language.  I therefore agree with
the Court's unwillingness to conclude that the state
common-law damages claims at issue in this case are pre-
empted unless such result is  `the clear and manifest
purpose of Congress.'  Ante, at 9 (quoting Rice v. Santa Fe
Elevator Corp., 331 U. S., at 230).
                                 B
       I also agree with the Court's application of the foregoing
principles in part IV of its opinion, where it concludes that
none of petitioner's common-law damages claims are pre-
empted by the 1965 Act.  In my view, the words of 5(b) of
that Act ( No statement relating to smoking and health
shall be required in the advertising of any cigarettes the
packages of which are labeled in conformity with the
provisions of this Act) can bear only one meaning: that
States are prohibited merely from  mandating particular
cautionary statements . . . in cigarette advertisements.
Ante, at 11.  As the Court recognizes, this interpretation
comports with Congress' stated purpose of avoiding  `di-
verse, nonuniform, and confusing labeling and advertising
regulations' relating to smoking and health.  Ante, at 12
(quoting 15 U. S. C. 1331(2)).  The narrow scope of federal
pre-emption is thus apparent from the statutory text, and
it is correspondingly impossible to divine any  clear and
manifest purpose on the part of Congress to pre-empt
common-law damages actions.
                                II
       My agreement with the Court ceases at this point.  Given
the Court's proper analytical focus on the scope of the
express pre-emption provisions at issue here and its
acknowledgement that the 1965 Act does not pre-empt state
common-law damages claims, I find the Court's conclusion
that the 1969 Act pre-empts at least some common-law
damages claims little short of baffling.  In my view, the
modified language of 5(b), 15 U. S. C. 1334(b) ( No
requirement or prohibition based on smoking and health
shall be imposed under State law with respect to the
advertising or promotion of any cigarettes the packages of
which are labeled in conformity with the provisions of this
Act), no more  clearly or  manifestly exhibits an intent to
pre-empt state common-law damages actions than did the
language of its predecessor in the 1965 Act.  Nonetheless,
the Court reaches a different conclusion, and its reasoning
warrants scrutiny.
                                 A
       The Court premises its pre-emption ruling on what it
terms the  substantial changes wrought by Congress in
5(b), ante, at 14, notably, the rewording of the provision to
pre-empt any  requirement or prohibition (as opposed
merely to any  statement)  imposed under State law.  As
an initial matter, I do not disagree with the Court that the
phrase  State law, in an appropriate case, can encompass
the common law as well as positive enactments such as
statutes and regulations.  See ante, at 16.  I do disagree,
however, with the Court's conclusion that  State law as
used in 5(b) represents such an all-inclusive reference.
Congress' intention in selecting that phrase cannot be
understood without considering the narrow range of
actions"any  requirement or prohibition"that Congress
specifically described in 5(b) as  imposed under state law.
See United States v. Morton, 467 U. S. 822, 828 (1984) ( We
do not . . . construe statutory phrases in isolation; we read
statutes as a whole.  Thus, the words [in question] must be
read in light of the immediately following phrase); Jarecki
v. G.D. Searle & Co., 367 U. S. 303, 307 (1961) ( The maxim
noscitur a sociis, that a word is known by the company it
keeps, while not an inescapable rule, is often wisely applied
where a word is capable of many meanings in order to avoid
the giving of unintended breadth to the Acts of Congress);
see also Norfolk & Western R. Co. v. Train Dispatchers, 499
U. S. ___, ___ (1991) (slip op. 5-6) (Stevens, J., dissenting)
(declining to read the phrase  all other law, including State
and municipal law broadly).
       Although the Court flatly states that the phrase  no
requirement or prohibition  sweeps broadly and  easily
encompass[es] obligations that take the form of common law
rules, ante, at 15, those words are in reality far from
unambiguous and cannot be said clearly to evidence a
congressional mandate to pre-empt state common-law
damages actions.  The dictionary definitions of these terms
suggest, if anything, specific actions mandated or disal-
lowed by a formal governing authority.  See, e.g., Webster's
Third New International Dictionary 1929 (1981) (defining
 require as  to ask for authoritatively or imperatively:
claim by right and authority and  to demand as necessary
or essential (as on general principles or in order to comply
with or satisfy some regulation)); Black's Law Dictionary
1212 (6th ed. 1990) (defining  prohibition as an  [a]ct or
law prohibiting something; an  interdiction).
       More important, the question whether common-law
damages actions exert a regulatory effect on manufacturers
analogous to that of positive enactments"an assumption
crucial to the Court's conclusion that the phrase  require-
ment or prohibition encompasses common-law actions"is
significantly more complicated than the Court's brief
quotation from San Diego Building Trades Council v.
Garmon, 359 U. S. 236, 247 (1959), see ante, at 15, would
suggest.
       The effect of tort law on a manufacturer's behavior is
necessarily indirect.  Although an award of damages by its
very nature attaches additional consequences to the
manufacturer's continued unlawful conduct, no particular
course of action (e.g., the adoption of a new warning label)
is required.  A manufacturer found liable on, for example,
a failure-to-warn claim may respond in a number of ways.
It may decide to accept damages awards as a cost of doing
business and not alter its behavior in any way.  See
Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 185-186
(1988) (corporation  may choose to disregard [state] safety
regulations and simply pay an additional damages award
if an employee is injured as a result of a safety violation).
Or, by contrast, it may choose to avoid future awards by
dispensing warnings through a variety of alternative
mechanisms, such as package inserts, public service
advertisements, or general educational programs.  The level
of choice that a defendant retains in shaping its own
behavior distinguishes the indirect regulatory effect of the
common law from positive enactments such as statutes and
administrative regulations.  See Dewey v. R. J. Reynolds
Tobacco Co., 121 N.J. 69, 90, 577 A.2d 1239, 1249 (1990);
Garner, Cigarette Dependency and Civil Liability: A Modest
Proposal, 53 S. Cal. L. Rev. 1423, 1454 (1980).  Moreover,
tort law has an entirely separate function"compensating
victims"that sets it apart from direct forms of regulation.
See Ferebee v. Chevron Chemical Co., 237 U. S. App. D.C.
164, 175, 736 F. 2d 1529, 1540, cert. denied, 469 U. S. 1062
(1984).
       Despite its earlier acknowledgement, consistent with the
foregoing conception of damages actions, that  there is no
general, inherent conflict between federal pre-emption of
state warning requirements and the continued vitality of
state common law damages actions, ante, at 12, the Court
apparently finds Garmon's statement that  regulation can
be as effectively exerted through an award of damages as
through some form of preventive relief, 359 U. S., at 247,
sufficient authority to warrant extinguishing the common-
law actions at issue in this case.  See ante, at 14-15.  I am
not persuaded.  Not only has the Court previously distin-
guished Garmon, but it has declined on several recent
occasions to find the regulatory effects of state tort law
direct or substantial enough to warrant pre-emption.
       In Goodyear Atomic Corp. v. Miller, for example, the
Court distinguished, for purposes of pre-emption analysis,
 direct state regulation of safety matters from  the
incidental regulatory effects of damages awarded pursuant
to a state workers' compensation law.  486 U. S., at 185.
Relying in part on its earlier decision in Silkwood v. Kerr-
McGee Corp., 464 U. S. 238, 256 (1984), the Court stated
that  Congress may reasonably determine that incidental
regulatory pressure is acceptable, whereas direct regulatory
authority is not.  486 U. S., at 186.  Even more recently,
the Court declined in English v. General Electric Co., 496
U. S., at 86, to find state common-law damages claims for
emotional distress pre-empted by federal nuclear energy
law.  The Court concluded that, although awards to former
employees for emotional distress would attach  additional
consequences to retaliatory employer conduct and could
lead employers to alter the underlying conditions about
which employees were complaining, ibid., such an effect
would be  neither direct nor substantial enough to warrant
pre-emption.  Id., at 85.
       In light of the recognized distinction in this Court's juris-
prudence between direct state regulation and the indirect
regulatory effects of common-law damages actions, it cannot
be said that damages claims are clearly or unambiguously
 requirements or  prohibitions imposed under state law.
The plain language of the 1969 Act's modified pre-emption
provision simply cannot bear the broad interpretation the
Court would impart to it.
                                 B
       Not only does the text of the revised 5(b) fail clearly or
manifestly to require pre-emption of state common-law
damages actions, but there is no suggestion in the legisla-
tive history that Congress intended to expand the scope of
the pre-emption provision when it amended the statute in
1969.  The Court acknowledges the evidence that Congress
itself perceived the changes in 5(b) to be a mere  clarifi[ca-
tion] of the existing narrow pre-emption provision, ante, at
14 (quoting S. Rep. No. 91-566, p. 12 (1969) (hereinafter S.
Rep.)), but it dismisses these statements of legislative
intent as the  `views of a subsequent Congress.'  Id., at 14,
quoting United States v. Price, 361 U. S. 304, 313 (1960).
The Court is wrong not only as a factual matter"for the
statements of the Congress that amended 5(b) are contem-
poraneous, not  subsequent, to enactment of the revised
pre-emption provision"but as a legal matter, as well.  This
Court accords  great weight to an amending Congress'
interpretation of the underlying statute.  See, e.g., Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367, 380-381 & n. 8
(1969).
       Viewing the revisions to 5(b) as generally
nonsubstantive in nature makes sense.  By replacing the
word  statement with the slightly broader term,
 requirement, and adding the word  prohibition to ensure
that a State could not do through negative mandate (e.g.,
banning all cigarette advertising) that which it already was
forbidden to do through positive mandate (e.g., mandating
particular cautionary statements), Congress sought to
 clarif[y] the existing precautions against confusing and
nonuniform state laws and regulations.  S. Rep., p. 12.
       Just as it acknowledges the evidence that Congress'
changes in the pre-emption provision were nonsubstantive,
the Court admits that  portions of the legislative history of
the 1969 Act suggest that Congress was primarily con-
cerned with positive enactments by States and localities.
Ante, at 15.  Indeed, the relevant Senate report explains
that the revised pre-emption provision is  intended to
include not only action by State statute but by all other
administrative actions or local ordinances or regulations by
any political subdivisions of any State, a list remarkable
for the absence of any reference to common-law damages
actions.  S. Rep., p. 12.  Compare, e.g., 29 U. S. C.
1144(a) and (c)(1) (ERISA statute defines  any and all
State laws as used in pre-emption provision to mean  all
laws, decisions, rules, regulations, or other State action
having the effect of law) (emphasis added).  The Court
dismisses this statement with the simple observation that
 the language of the Act plainly reaches beyond such
[positive] enactments.  Ante, at 15.  Yet, as discussed
above, the words of 5(b) ( requirement or prohibition) do
not so  plainly extend to common-law damages actions, and
the Court errs in placing so much weight on this fragile
textual hook.
       The Court further acknowledges that, at the same time
that Congress amended the pre-emption provision of 5(b),
it made no effort to alter the statement of purpose
contained in 2 of the 1965 Act.  Ante, at 14, n. 19.
Although the Court relegates this fact to a footnote, the
continued vitality of 2 is significant, particularly in light
of the Court's reliance on the same statement of purpose for
its earlier conclusion that the 1965 Act does not pre-empt
state common-law damages actions.  See ante, at 12
(concluding that Congress' expressed intent to avoid
diverse, nonuniform, and confusing regulations  most
naturally refers to positive enactments by [state legislatures
and federal agencies], not to common law damages
actions).
       Finally, there is absolutely no suggestion in the
legislative history that Congress intended to leave plaintiffs
who were injured as a result of cigarette manufacturers'
unlawful conduct without any alternative remedies; yet that
is the regrettable effect of the Court's ruling today that
many state common-law damages claims are pre-empted.
The Court in the past has hesitated to find pre-emption
where federal law provides no comparable remedy.  See
Rabin, A Sociolegal History of the Tobacco Tort Litigation,
44 Stan. L. Rev. 853, 869 (1992) (noting the  rather strong
tradition of federal deference to competing state interests in
compensating injury victims).  Indeed, in Silkwood, the
Court took note of  Congress' failure to provide any federal
remedy for injured persons, and stated that it was  diffi-
cult to believe that Congress would, without comment,
remove all means of judicial recourse for those injured by
illegal conduct.  464 U. S., at 251.  See also id., at 263
(Blackmun, J., dissenting) ( [i]t is inconceivable that
Congress intended to leave victims with no remedy at all).
       Unlike other federal statutes where Congress has eased
the bite of pre-emption by establishing  comprehensive
civil enforcement schemes, see, e.g., Ingersoll-Rand Co. v.
McClendon, 498 U. S. ___, ___ (1990) (slip op. 9-10) (dis-
cussing 502(a) of ERISA), the Cigarette Labeling and
Advertising Act is barren of alternative remedies.  The Act
merely empowers the Federal Trade Commission to
regulate unfair or deceptive advertising practices (15
U. S. C. 1336), establishes minimal criminal penalties
(misdemeanor and fine not to exceed $10,000) for violations
of the Act's provisions (1338), and authorizes federal
courts, upon the Government's application, to enjoin
violations of the Act (1339).  Unlike the Court, I am
unwilling to believe that Congress, without any mention of
state common-law damages actions or of its intention
dramatically to expand the scope of federal pre-emption,
would have eliminated the only means of judicial recourse
for those injured by cigarette manufacturers' unlawful
conduct.
       Thus, not only does the plain language of the 1969 Act
fail clearly to require pre-emption of petitioner's state
common-law damages claims, but there is no suggestion in
the legislative history that Congress intended to expand the
scope of the pre-emption provision in the drastic manner
that the Court attributes to it.  Our obligation to infer pre-
emption only where Congress' intent is clear and manifest
mandates the conclusion that state common-law damages
actions are not pre-empted by the 1969 Act.
                                III
       Stepping back from the specifics of the Court's pre-
emption analysis to view the result the Court ultimately
reaches, I am further disturbed.  Notwithstanding the
Court's ready acknowledgement that  `[t]he purpose of
Congress is the ultimate touchstone' of pre-emption
analysis, ante, at 9 (quoting Malone v. White Motor Corp.,
435 U. S. 497, 504 (1978)), the Court proceeds to create a
crazy quilt of pre-emption from among the common-law
claims implicated in this case, and in so doing reaches a
result that Congress surely could not have intended.
       The most obvious problem with the Court's analysis is its
frequent shift in the level of generality at which it examines
the individual claims.  For example, the Court states that
fraudulent misrepresentation claims (at least those involv-
ing false statements of material fact in advertisements) are
 not predicated on a duty `based on smoking and health' but
rather on a more general obligation"the duty not to
deceive, and therefore are not pre-empted by 5(b) of the
1969 Act.  Ante, at 22.  Yet failure to warn claims"which
could just as easily be described as based on a  more
general obligation to inform consumers of known
risks"implicitly are found to be  based on smoking and
health and are declared pre-empted.  See ante, at 18.  The
Court goes on to hold that express warranty claims are not
pre-empted because the duty at issue is undertaken by the
manufacturer and is not  imposed under State law.  Ante,
at 19.  Yet, as the Court itself must acknowledge,  the
general duty not to breach warranties arises under state
law, ibid. (emphasis added); absent the State's decision to
penalize such behavior through the creation of a common-
law damages action, no warranty claim would exist.
       In short, I can perceive no principled basis for many of
the Court's asserted distinctions among the common-law
claims, and I cannot believe that Congress intended to
create such a hodge-podge of allowed and disallowed claims
when it amended the pre-emption provision in 1970.
Although the Court acknowledges that 5(b) fails to
 indicate that any familiar subdivision of common law
claims is or is not pre-empted, ante, at 17, it ignores the
simplest and most obvious explanation for the statutory
silence: that Congress never intended to displace state
common-law damages claims, much less to cull through
them in the manner the Court does today.  I can only
speculate as to the difficulty lower courts will encounter in
attempting to implement the Court's decision.
                                IV
       By finding federal pre-emption of certain state common-
law damages claims, the Court today eliminates a critical
component of the States' traditional ability to protect the
health and safety of their citizens.  Yet such a radical
readjustment of federal-state relations is warranted under
this Court's precedents only if there is clear evidence that
Congress intended that result.  Because I believe that
neither version of the Federal Cigarette Labeling and
Advertising Act evidences such a clear congressional intent
to pre-empt state common-law damages actions, I respect-
fully dissent from parts V and VI of the Court's opinion.



 SUPREME COURT OF THE UNITED STATES--------
            No. 90-1038
             --------
THOMAS CIPOLLONE, individually and as executor
of the estate of ROSE D. CIPOLLONE, PETITIONER
       v. LIGGETT GROUP, INC., et al.
on writ of certiorari to the united states court of
        appeals for the third circuit
               [June 24, 1992]

  Justice Scalia, with whom Justice Thomas joins,
concurring in the judgment in part and dissenting in part.
  Today's decision announces what, on its face, is an
extraordinary and unprecedented principle of federal
statutory construction: that express pre-emption provisions
must be construed narrowly,  in light of the presumption
against the pre-emption of state police power regulations.
Ante, at 12.  The life-span of this new rule may have been
blessedly brief, inasmuch as the opinion that gives it birth
in Part I proceeds to ignore it in Part V, by adjudging at
least some of the common-law tort claims at issue here pre-
empted.  In my view, there is no merit to this newly crafted
doctrine of narrow construction.  Under the Supremacy
Clause, U. S. Const., Art. VI, cl. 2, our job is to interpret
Congress's decrees of pre-emption neither narrowly nor
broadly, but in accordance with their apparent meaning.  If
we did that job in the present case, we would find, under
the 1965 Act, pre-emption of the petitioner's failure-to-warn
claims; and under the 1969 Act, we would find pre-emption
of the petitioner's claims complete.
                      I
  The Court's threshold description of the law of pre-
emption is accurate enough: Though we generally  `as-
sum[e] that the historic police powers of the States [are] not
to be superseded by . . . Federal Act unless that [is] the
clear and manifest purpose of Congress,' ante, at 9
(quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230
(1947), we have traditionally not thought that to require
express statutory text.  Where state law is in actual conflict
with federal law, see, e.g., Pacific Gas & Elec. Co. v. Energy
Resources Conservation and Development Comm'n, 461 U. S.
190, 204 (1983), or where it  stands as an obstacle to the
accomplishment and execution of the full purposes and
objectives of Congress, Hines v. Davidowitz, 312 U. S. 52,
67 (1941), or even where the nature of Congress's regula-
tion, or its scope, convinces us that  Congress left no room
for the States to supplement it, Rice, supra, at 230, we
have had no difficulty declaring that state law must yield.
The ultimate question in each case, as we have framed the
inquiry, is one of Congress's intent, as revealed by the text,
structure, purposes, and subject matter of the statutes
involved.  See, e.g., English v. General Elec. Co., 496 U. S.
72, 78-79 (1990); Shaw v. Delta Air Lines, Inc., 463 U. S.
85, 95 (1983).
  The Court goes beyond these traditional principles,
however, to announce two new ones.  First, it says that
express pre-emption provisions must be given the narrowest
possible construction.  This is in its view the consequence
of our oft-repeated assumption that, absent convincing
evidence of statutory intent to pre-empt,  `the historic
police powers of the States [are] not to be superseded,' see
ante, at 11-12.  But it seems to me that assumption
dissolves once there is conclusive evidence of intent to pre-
empt in the express words of the statute itself, and the only
remaining question is what the scope of that pre-emption
is  meant to be.  Thereupon, I think, our responsibility
is  to  apply to the text ordinary principles of statutory
construction.
  That is precisely what our express pre-emption cases
have done.  Less than a month ago, in Morales v. Trans
World Airlines, Inc., 504 U. S. ___ (1992), we held that the
Airline Deregulation Act's provision pre-empting state laws
 relating to [airline] rates, routes, or services, 49 U. S. C.
App. 1305(a)(1), was broad enough to reach state fare
advertising regulations despite the availability of plausible
limiting constructions.  We made no mention of any  plain
statement rule, or rule of narrow construction, but applied
the usual   `assumption that the ordinary meaning of [the
statutory] language accurately expresses the legislative
purpose.'   Morales, supra, at ___ (slip op., at 6) (quoting
FMC Corp. v. Holliday, 498 U. S. ___, ___ (1990) (slip op.,
at 4)) (emphasis added).  And last Term, in Norfolk &
Western R. Co. v. American Train Dispatchers Ass'n, 499
U. S. ___ (1991), we interpreted an express preemption
provision broadly despite the fact that a well-respected
canon of statutory construction supported a narrower
reading.  See id., at ___ (slip op., at 11); id., at ___ (slip op.,
at 3-4) (Stevens, J., dissenting).  We said not a word about
a  presumption against . . . preemption, ante, at 11, that
was to be applied to construction of the text.
  In light of our willingness to find pre-emption in the
absence of any explicit statement of pre-emptive intent, the
notion that such explicit statements, where they exist, are
subject to a  plain-statement rule is more than somewhat
odd.  To be sure, our jurisprudence abounds with rules of
 plain statement,  clear statement, and  narrow construc-
tion designed variously to ensure that, absent unambigu-
ous evidence of Congress's intent, extraordinary constitu-
tional powers are not invoked, or important constitutional
protections eliminated, or seemingly inequitable doctrines
applied.  See, e.g., United States v. Mitchell, 445 U. S. 535,
538 (1980) (waivers of federal sovereign immunity must be
 unequivocally expressed); Will v. Michigan Dept. of State
Police, 491 U. S. 58, 65 (1989) (clear statement required to
compel States to entertain damages suits against them-
selves in state courts); Atascadero State Hospital v. Scan-
lon, 473 U. S. 234, 243 (1985) (abrogation of state sovereign
immunity must be expressed  in unmistakable language).
But none of those rules exists alongside a doctrine whereby
the same result so prophylactically protected from careless
explicit provision can be achieved by sheer implication, with
no express statement of intent at all.  That is the novel
regime the Court constructs today.
  The results seem odder still when one takes into account
the second new rule that the Court announces:  When
Congress has considered the issue of pre-emption and has
included in the enacted legislation a provision explicitly
addressing that issue, . . . we need only identify the domain
expressly pre-empted by [that provision].  Ante, at 11.
Once there is an express pre-emption provision, in other
words, all doctrines of implied pre-emption are eliminated.
This proposition may be correct insofar as implied  field
pre-emption is concerned: The existence of an express pre-
emption provision tends to contradict any inference that
Congress intended to occupy a field broader than the
statute's express language defines.  However, with regard
to implied  conflict pre-emption"i. e., where state regula-
tion actually conflicts with federal law, or where state
regulation  stands as an obstacle to the accomplishment
and execution of Congress's purposes, Hines, supra, at
67"the Court's second new rule works mischief.  If taken
seriously, it would mean, for example, that if a federal con-
sumer protection law provided that no state agency or court
shall assert jurisdiction under state law over any workplace
safety issue with respect to which a federal standard is in
effect, then a state agency operating under a law dealing
with a subject other than workplace safety (e.g., consumer
protection) could impose requirements entirely contrary to
federal law"forbidding, for example, the use of certain
safety equipment that federal law requires.  To my knowl-
edge, we have never expressed such a rule before, and our
prior cases are inconsistent with it, see, e.g., Jones v. Rath
Packing Co., 430 U. S. 519, 540-543 (1977).  When this
second novelty is combined with the first, the result is
extraordinary: The statute that says anything about pre-
emption must say everything; and it must do so with great
exactitude, as any ambiguity concerning its scope will be
read in favor of preserving state power.  If this is to be the
law, surely only the most sporting of congresses will dare to
say anything about pre-emption.
  The proper rule of construction for express pre-emption
provisions is, it seems to me, the one that is customary for
statutory provisions in general: Their language should be
given its ordinary meaning.  FMC Corp. v. Holliday, supra,
at ___ (slip op., at 4); Shaw v. Delta Air Lines, 463 U. S., at
97.  When this suggests that the pre-emption provision was
intended to sweep broadly, our construction must sweep
broadly as well.  See, e.g., id., at 96-97.  And when it
bespeaks a narrow scope of pre-emption, so must our
judgment.  See, e.g., Fort Halifax Packing Co., Inc. v.
Coyne, 482 U. S. 1, 7-8 (1987).  Applying its niggardly rule
of construction, the Court finds (not surprisingly) that none
of petitioner's claims"common-law failure to warn, breach
of express warranty, and intentional fraud and misrepre-
sentation"is pre-empted under 5(b) of the 1965 Act.  And
save for the failure-to-warn claims, the Court reaches the
same result under 5(b) of the 1969 Act.  I think most of
that is error.  Applying ordinary principles of statutory
construction, I believe petitioner's failure-to-warn claims
are pre-empted by the 1965 Act, and all his common-law
claims by the 1969 Act.
                     II
  With much of what the plurality says in Part V of its
opinion I agree"that  the language of the [1969] Act
plainly reaches beyond [positive] enactments, ante, at 15;
that the general tort-law duties petitioner invokes against
the cigarette companies can, as a general matter, impose
 requirement[s] or prohibition[s] within the meaning of
5(b) of the 1969 Act, ibid.; and that the phrase  State law
as used in that provision embraces state common law, ante,
at 16.  I take issue with the plurality, however, on its
application of these general principles to the present case.
Its finding that they produce only partial pre-emption of
petitioner's common-law claims rests upon three mispercep-
tions that I shall discuss in turn, under headings indicating
the erroneously permitted claims to which they apply.
                      A
       Pre-1969 Failure-to-Warn Claims
  According to the Court, 5(b) of the 1965 Act  is best
read as having superseded only positive enactments by
legislatures or administrative agencies that mandate
particular warning labels, ante, at 12 (emphasis added).
In essence, the Court reads 5(b)'s critical language  No
statement relating to smoking and health shall be required
to mean  No particular statement relating to smoking and
health shall be required.  The Court reasons that because
common-law duties do not require cigarette manufacturers
to include any particular statement in their advertising, but
only some statement warning of health risks, those duties
survive the 1965 Act.  I see no basis for this element of
 particularity.  To require a warning about cigarette health
risks is to require a  statement relating to smoking and
health.  If the  presumption against . . . pre-emption, ante,
at 12, requires us to import limiting language into the 1965
Act, I do not see why it does not require us to import
similarly limiting language into the 1969 Act"so that a
 requirement . . . based on smoking and health . . . with
respect to advertising means only a specific requirement,
and not just general, noncigarette-specific duties imposed
by tort law.  The divergent treatment of the 1965 Act
cannot be justified by the Act's statement of purposes,
which, as the Court notes, expresses concern with  diverse,
nonuniform, and confusing cigarette labeling and advertis-
ing regulations, 15 U. S. C. 1331(2) (emphasis added).
That statement of purposes was left untouched by Congress
in 1969, and thus should be as restrictive of the scope of the
later 5(b) as the Court believes it is of the scope of the
earlier one.
  To the extent petitioner's claims are premised specifically
on respondents' failure (during the period in which the 1965
Act was in force) to include in their advertising any state-
ment relating to smoking and health, I would find those
claims, no less than the similar post-1969 claims, pre-
empted.  In addition, for reasons I shall later explain, see
infra, Part III, I would find pre-emption even of those
claims based on respondents' failure to make health-related
statements to consumers outside their advertising.  Howev-
er, since 5(b) of the 1965 Act enjoins only those laws that
require  statement[s] in cigarette advertising, those of
petitioner's claims that, if accepted, would penalize state-
ments voluntarily made by the cigarette companies must be
deemed to survive.  As these would appear to include
petitioner's breach-of-express-warranty and intentional
fraud and misrepresentation claims, I concur in the Court's
judgment in this respect.
                      B
Post-1969 Breach-of-Express-Warranty Claims
  In the context of this case, petitioner's breach-of-express-
warranty claim necessarily embodies an assertion that
respondents' advertising and promotional materials made
statements to the effect that cigarette smoking is not
unhealthy.  Making such statements civilly actionable
certainly constitutes an advertising  requirement or
prohibition . . . based on smoking and health.  The plu-
rality appears to accept this, but finds that liability for
breach of express warranty is not  imposed under State
law within the meaning of 5(b) of the 1969 Act.
 [R]ather, it says, the duty  is best understood as under-
taken by the manufacturer itself.  Ante, at 19.  I cannot
agree.
  When liability attaches to a particular promise or
representation, it attaches by law.  For the making of a
voluntary promise or representation, no less than for the
commission of an intentional tort, it is the background law
against which the act occurs, and not the act itself, that
supplies the element of legal obligation.  See Home Build-
ing & Loan Assn. v. Blaisdell, 290 U. S. 398, 429 (1934);
N.J. Stat. Ann. 12A:2-313(1), 12A:2-714, and 12A:2-715
(West 1962) (providing for enforcement of express warran-
ties).  Of course, New Jersey's law of express warranty
attaches legal consequences to the cigarette manufacturer's
voluntary conduct in making the warranty, and in that
narrow sense, I suppose, the warranty obligation can be
said to be  undertaken by the manufacturer.  But on that
logic it could also be said that the duty to warn about the
dangers of cigarettes is undertaken voluntarily by manufac-
turers when they choose to sell in New Jersey; or, more
generally, that any legal duty imposed on volitional behav-
ior is not one imposed by law.
      The plurality cites no authority for its curious view,
which is reason enough to doubt it.  In addition, however,
we rejected this very argument last Term in Norfolk &
Western R. v. American Train Dispatchers Assn., where we
construed a federal exemption  from the antitrust laws and
from all other law, 49 U. S. C. 11341(a), to include an
exemption from contract obligations.  We observed, in a
passage flatly inconsistent with the plurality's analysis
today, that  [a] contract has no legal force apart from the
law that acknowledges its binding character.  499 U. S., at
___ (slip op., at 12).  Compare id., at ___ (slip op., at 5-6)
(Stevens, J., dissenting).  I would find petitioner's claim for
breach of express warranty pre-empted by 5(b) of the 1969
Act.
                      C
Post-1969 Fraud and Misrepresentation Claims
  According to the plurality, at least one of petitioner's
intentional fraud and misrepresentation claims survives
5(b) of the 1969 Act because the common-law duty
underlying that claim is not  based on smoking and health
within the meaning of the Act.  See ante, at 22.  If I
understand the plurality's reasoning, it proceeds from the
implicit assumption that only duties deriving from laws
that are specifically directed to  smoking and health, or
that are uniquely crafted to address the relationship
between cigarette companies and their putative victims, fall
within 5(b) of the Act, as amended.  Given that New
Jersey's tort-law  duty not to deceive, ibid., is a general
one, applicable to all commercial actors and all kinds of
commerce, it follows from this assumption that 5(b) does
not pre-empt claims based on breaches of that duty.
  This analysis is suspect, to begin with, because the
plurality is unwilling to apply it consistently.  As Justice
Blackmun cogently explains, see ante, at 13 (opinion
concurring in part and dissenting in part), if New Jersey's
common-law duty to avoid false statements of material
fact"as applied to the cigarette companies' behavior"is not
 based on smoking and health, the same must be said of
New Jersey's common-law duty to warn about a product's
dangers.  Each duty transcends the relationship between
the cigarette companies and cigarette smokers; neither duty
was specifically crafted with an eye toward  smoking and
health.  None of the arguments the plurality advances to
support its distinction between the two is persuasive.  That
Congress specifically preserved, in both the 1965 and 1969
Acts, the Federal Trade Commission's authority to police
deceptive advertising practices, see 5(c) of the 1965 Act;
7(b) of the 1969 Act; ante, at 22-23, does not suggest that
Congress intended comparable state authority to survive
5(b).  In fact, at least in the 1965 Act (which generally
excluded federal as well as state regulation), the exemption
suggested that 5(b) was broad enough to reach laws
governing fraud and mispresentation.  And it is not true
that the States' laws governing fraud and misrepresentation
in advertising impose identical legal standards, whereas
their laws  concerning the warning necessary to render a
product `reasonably safe' are quite diverse, ante, at 23.
The question whether an ad featuring a glamorous, youth-
ful smoker with pearly-white teeth is  misrepresentative
would almost certainly be answered differently from State
to State.  See ante, at 21 (discussing FTC's initial cigarette
advertising rules).
  Once one is forced to select a consistent methodology for
evaluating whether a given legal duty is  based on smoking
and health, it becomes obvious that the methodology must
focus not upon the ultimate source of the duty (e.g., the
common law) but upon its proximate application.  Use of
the  ultimate source approach (i. e., a legal duty is not
 based on smoking and health unless the law from which
it derives is directed only to smoking and health) would gut
the statute, inviting the very  diverse, nonuniform, and
confusing cigarette . . . advertising regulations Congress
sought to avoid.  15 U. S. C. 1331(2).  And the problem is
not simply the common law: Requirements could be
imposed by state executive agencies as well, so long as they
were operating under a general statute authorizing their
supervision of  commercial advertising or  unfair trade
practices.  New Jersey and many other States have such
statutes already on the books.  E.g., N. J. Stat. Ann.
56:8-1 et seq. (West 1989); N. Y. Gen. Bus. Law 349 et
seq. (McKinney 1988 and Supp. 1992); Texas Bus. & Com.
Code Ann. 17.01 et seq. (1987 and Supp. 1992).
  I would apply to all petitioner's claims what I have called
a  proximate application methodology for determining
whether they invoke duties  based on smoking and
health"I would ask, that is, whether, whatever the source
of the duty, it imposes an obligation in this case because of
the effect of smoking upon health.  On that basis, I would
find petitioner's failure-to-warn and misrepresentation
claims both pre-empted.
                     III
  Finally, there is an additional flaw in the plurality's
opinion, a systemic one that infects even its otherwise
correct disposition of petitioner's post-1969 failure-to-warn
claims.  The opinion states that, since 5(b) proscribes only
 requirement[s] or prohibition[s] . . . `with respect to . . .
advertising or promotion,'  state-law claims premised on
the failure to warn consumers  through channels of commu-
nication other than advertising or promotion are not
covered.  Ante, at 22 (emphasis added); see ante, at 18.
This preserves not only the (somewhat fanciful) claims
based on duties having no relation to the advertising and
promotion (one could imagine a law requiring manufactur-
ers to disclose the health hazards of their products to a
state public-health agency), but also claims based on duties
that can be complied with by taking action either within the
advertising and promotional realm or elsewhere.  Thus,
if"as appears to be the case in New Jersey"a State's
common law requires manufacturers to advise consumers of
their products' dangers, but the law is indifferent as to how
that requirement is met (i.e., through  advertising or
promotion or otherwise), the plurality would apparently be
unprepared to find pre-emption as long as the jury were
instructed not to zero in on deficiencies in the manufac-
turers' advertising or promotion.
  I think that is inconsistent with the law of pre-emption.
Advertising and promotion are the normal means by which
a manufacturer communicates required product warnings
to prospective customers, and by far the most economical
means.  It is implausible that Congress meant to save
cigarette companies from being compelled to convey such
data to consumers through that means, only to allow them
to be compelled to do so through means more onerous still.
As a practical matter, such a  tell-the-consumers-any-way-
you-wish law compels manufacturers to relinquish the
advertising and promotion immunity accorded them by the
Act.  The test for pre-emption in this setting should be one
of practical compulsion, i.e., whether the law practically
compels the manufacturers to engage in behavior that
Congress has barred the States from prescribing directly.
Cf., e.g., Ray v. Atlantic Richfield Co., 435 U. S. 151, 173,
n. 25 (1978).  Though the hypothetical law requiring disclo-
sure to a state regulatory agency would seem to survive this
test, I would have no difficulty finding that test met with
respect to state laws that require the cigarette companies
to meet general standards of  fair warning regarding
smoking and health.
                  *   *   *
  Like Justice Blackmun,  I can only speculate as to the
difficulty lower courts will encounter in attempting to
implement [today's] decision.  Ante, at 14 (opinion concur-
ring in part and dissenting in part).  Must express pre-
emption provisions really be given their narrowest reason-
able construction (as the Court says in Part III), or need
they not (as the plurality does in Part V)?   Are courts to
ignore all doctrines of implied pre-emption whenever the
statute at issue contains an express pre-emption provision,
as the Court says today, or are they to continue to apply
them, as we have in the past?  For pre-emption purposes,
does  state law include legal duties imposed on voluntary
acts (as we held last Term in Norfolk & Western R. Co.), or
does it not (as the plurality says today)?  These and other
questions raised by today's decision will fill the law-books
for years to come.  A disposition that raises more questions
than it answers does not serve the country well.



