Supreme Court snuffs Maine's Internet cigarette sales rule

The justices, citing need for unfettered interstate commerce, say delivery companies cannot be required to verify that tobacco recipients are over 18.

By Warren Richey | Staff writer of The Christian Science Monitor

from the February 21, 2008 edition

Washington - States cannot require shipping companies to verify the age of recipients before delivering tobacco products to a home address.

The US Supreme Court on Wednesday struck down key portions of a Maine state law aimed at preventing minors from purchasing cigarettes and other tobacco products over the Internet or through other mail-order services. The vote was 9-0.

At issue was whether the 2003 state law was preempted by federal efforts to deregulate the shipping industry nationwide.

In agreeing with the shipping companies, the high court said Maine's law, while well intentioned, interfered with a congressional determination to prevent shipping companies from becoming mired in conflicting state regulations. Instead, Congress sought to leave it to the competitive marketplace to determine which services companies might offer or decline to offer.

"To allow Maine to insist that the carriers provide a special checking system would allow other states to do the same," writes Justice Stephen Breyer in the court's 11-page decision. "To interpret the federal law to permit these, and similar, state requirements could easily lead to a patchwork of state service-determining laws, rules, and regulations."

At least 39 states restrict the sale of tobacco over the Internet as a means to prevent minors from buying cigarettes. Some states ban Internet cigarette sales entirely, while others, like Maine, have tried to confine the sales to adults.

Maine passed its tobacco regulation law in an effort to prevent minors from ordering cigarettes and other age-restricted products on the Internet. It is designed to provide the same safeguard as requiring proof of age for purchasing tobacco products in a store.

Under the Maine law, the shipping company's delivery driver was required to verify that the individual who ordered and was receiving the tobacco was 18 or older.

Three New England trade associations challenged the Maine law, saying it was an illegal restraint on interstate commerce. They complained that age checks would slow down delivery times.

The case, Rowe v. New Hampshire Motor Transport Association, was seen as an important test of federal protections that allow national companies to freely engage in interstate commerce without facing a tangle of different regulations.

On the other side, the case was seen as a test of a state's authority to exercise its traditional powers to protect public health and safety on the Internet, in this case by regulating sales of a dangerous product like tobacco.

Both a federal judge and a three-judge panel of the First US Circuit Court of Appeals in Boston previously struck down the Maine tobacco law. They said the state measure was preempted by a congressional mandate under the Federal Aviation Administration Authorization Act of 1994 (FAAAA) that bars individual states from interfering in the operations of interstate shipping and transport companies. The federal law is aimed at protecting ground and air shipping companies from onerous state and local regulations that can be substantially different from state to state.

In affirming the First Circuit, the high court rejected suggestions by Maine officials that its law could be upheld as an exercise of the state's fundamental powers to protect public health.

"Despite the importance of the public health objective," Justice Breyer writes, "we cannot agree with Maine that the federal law creates an exception on that basis, exempting state laws that it would otherwise exempt."

He adds, "The [FAAAA] says nothing about a public health exception."

In a concurring opinion, Justice Ruth Bader Ginsburg noted that the case points to an urgent need for federal legislation. "Tobacco use by children and adolescents, we have recognized, may be the single most significant threat to public health in the United States," she writes. "But no comprehensive federal law currently exists to prevent tobacco sellers from exploiting the underage market. Instead, Congress has encouraged state efforts."

Such efforts, she continues, may be pre-empted by federal law. "Now alerted to the problem, Congress has the capacity to act with care and dispatch to provide an effective solution."