Could Maine prohibit tobacco companies from sponsoring community, sporting, recreational, or civic events?

Plain-English summary

In 1987, the Maine Attorney General concluded that L.D. 356, a proposed ban on tobacco-company sponsorship of community, sporting, recreational, and civic events, would violate the Supremacy Clause because federal cigarette advertising law preempted it.

The bill targeted sponsorship and consumer sales promotion under tobacco brand names because those promotions associated tobacco with a healthy and youthful lifestyle. The federal statute expressly barred state requirements or prohibitions based on smoking and health concerning cigarette advertising or promotion.

Because Congress had spoken expressly, the opinion regarded the preemption issue as clear. It did not decide the separate First Amendment question or rely on implied-preemption theories.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

For Maine legislators in 1987

The opinion advised that the proposed event-sponsorship ban fell within an area where federal law expressly displaced state regulation of cigarette advertising and promotion based on smoking and health.

For event organizers and tobacco companies in 1987

The proposed law would have covered brand-name sponsorship and related sales promotion at community, sporting, recreational, and civic events, but the opinion concluded that Maine could not enact it in that form.

For public-health officials in 1987

The opinion did not dispute the bill's health purpose. It concluded that the federal statute required cigarette advertising and promotion rules of this type to remain nationally uniform.

Common questions

Q: Why did federal law preempt the Maine bill? A: The federal statute expressly prohibited state requirements or bans based on smoking and health with respect to cigarette advertising or promotion.

Q: Did event sponsorship count as promotion? A: Yes. The opinion treated tobacco-brand sponsorship and associated sales promotion as activity covered by the federal advertising law.

Q: Did the opinion decide whether the bill violated free speech? A: No. It said the Supremacy Clause issue was clear enough that the First Amendment question did not need to be reached.

Q: Did the opinion rely on implied preemption? A: No. It noted other preemption theories but based its conclusion on Congress's express preemption language.

Background and statutory framework

The Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq., established a national system for cigarette warnings and advertising. The opinion focused on the provision forbidding state advertising or promotion rules based on smoking and health.

Article VI, Clause 2 of the United States Constitution made valid federal law supreme over conflicting state law. The opinion reviewed express, field, and conflict preemption but found express preemption decisive.

Citations and references

Statute and Constitution:

• Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq.
• Article VI, Clause 2 of the United States Constitution

Cases:

• Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982)
• Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 132 (1978)

Source

• Landing page: https://www.maine.gov/legis/lawlib/lldl/agops/agops.htm
• Original PDF: https://lldc.mainelegislature.org/Open/AG/Opinions/1987/ag_19871112.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

87-14
JAMES E. TIERNEY
ATTORNEY GENERAL

STATE OF MAINE
DEPARTMENT OF THE ATTORNEY GENERAL
STATE HOUSE STATION 6
AUGUSTA, MAINE 04333

November-12, 1987

Honorable John E. Baldacci
Senate Chair
Honorable Carol Allen
House Chair
Joint Standing Committee on Business Legislation Maine Legislature State House Augusta, Maine 04333 Dear Senator Baldacci and Representative Allen:
You have inquired as to whether Legislative Document No.
356, "AN ACT to Prohibit Tobacco Companies from Sponsoring Community, Sporting, Recreational or Civic Events," currently pending before your Committee would, if enacted, be unconstitutional. For the reasons which follow, it is the Opinion of this Office that the bill does violate the Supremacy Clause of the United States Constitution by virtue of the operation of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq.!/ The bill would enact a new section of the Maine statutes that would prohibit tobacco companies from "[s]ponsorship of or

1/ Because the unconstitutionality of this bill is so clear under the Supremacy Clause, this Opinion does not address the more complex question of whether the bill is also unconstitutional under the First Amendment's guarantee of freedom of speech. See Posadas de Puerto Rico Assoc. v. Tourism Co. of Puerto Rico, U.S. , ; 106 s.ct. 2968, 2977 (1986) (government regulation of speech relating to activity judged by the legislature to be injurious to public health, safety and welfare (gambling) not violative of First Amendment) .
 -2-
association with any community, sporting, recreational or civic events under the registered brand names of a tobacco product." The unlawful activity would include "all consumer sales promotion of tobacco products by manufacturers,· packers, distributors, importers or sellers of such products, associated with any community, sporting, recreational, or civic event." As set forth in its Statement of Fact, the purpose of the bill is to "prohibit tobacco companies from sponsoring community and recreational events which associate their products with a healthy and youthful life style." The Supremacy Clause, found in Article VI, Clause 2 of the United States Constitution, provides:
This Constitution, and the Laws of the
United States which shall be made in pursuance thereof . . . shall be the supreme Law of the Land . . . .
Thus, in passing legislation within the ambit of its constitutional authority, the Congress has the constitutional power to "preempt" state legislative action on the subject of the federal legislation. The most direct way for the Congress to exercise this power is simply by so stating in express terms. Jones v. Rath Packing Co., 430 u.s! 519, 525 (1977). Even if not so stated, the Court may infer a Congressional intent to preempt because "the scheme of federal regulation may be so pervasive as to make reasonable the· inference that Congress left no room to supplement it, or "because the Act of 11

Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject" or because "the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose." Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982); Rice v. Santa Fe Elevator Corp., 31 U.S. 218, 230 (1947), quoted with approval in Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Commission, 461 U.S. 190 (1983). Finally, "[elven where Congress has not entirely displaced the state regulation in a specific area, state law is preempted to the extent that it actually conflicts with federal law." Id.; Florida Lime & Avacado Growers, Inc. v. Paul, 373 U.S. 13~ 142-143 (1963); Hines v. Davidowitz, 312 U.S. 52, 67 (1941).
Notwithstanding all of this, however, the Court "is generally reluctant to infer preemption, "especially when the basic purposes of the state statute and the [federal statute] are similar." Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 132 (1978). Consequently, this Department has consistently been very reluctant to discourage the Legislature -3- from passing legislation on the ground that it might be f preempted and has not done so unless the question is free from all doubt. See, for example, the State's experience with the Maine Severance Pay Law, 26 M.R.S.A. § 625-B, about which a substantial preemption question was raised, but which was ultimately sustained against preemption challenge by the United States Supreme Court by one vote. Fort Halifax Packing Co. v.
Coyne, -- U.S.--, 55 U.S.L.W. 4699 (June 1, 1987).
Applying these principles to the bill at issue, the basic question presented is whether the Federal Cigarette Labeling and Advertising Act contains any expression of congressional intent with regard to the preemption of state regulation of cigarette industry sponsorship and association with community and recreational events.~/ The purpose behind the Act, set out in 15 u.s.c. S 1331, is to set up a comprehensive Federal plan to deal with cigarette labeling and advertising that shows a relation between smoking and health whereby:
(1) the public may be adequately informed about any adverse health effects of cigarette smoking by inclusion of warning notices on each package of cigarettes and each advertisement of cigarettes; and
(2) commerce and the national economy
(
may be (A) protected to the maximum extent
consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to the relationship between smoking and health.
Further, the Act expressly preempts state regulation or prohibitions on cigarette advertising or promotions based on smoking or health. 15 U.S.C. § 1334(b) reads:
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 chapter.
It is thus clear that the Congress expressly intended that, in - order to prevent a multiplicity of legal requirements

~/ An even more basic question is whether this federal Act's enactment is authorized by the Constitution. Clearly, however, Congress' power to regulate interstate commerce, found in Article I, section 8, clause 3, is sufficient authority in this regard.
 -4- concerning cigarette advertising or promotion, it would r establish such requirements on a national basis and prohibit the states from adding additional ones.
Since the Congress has expressed itself so clearly, it appears that L.D. 356 would certainly run afoul of the first preemption test outlined above. The bill's intent, as set forth in its Statement of Fact, is to regulate the promotional activities of tobacco companies, a form of advertising which is clearly covered with regard to cigarettes, by the federal act.ii Thus, this Department is reluctantly obliged to conclude that the bill, if passed, would be preempted.!/ I hope the foregoing answers your question. Please feel free to reinquire if further clarification is necessary.

JET:sw

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3/ Further mention is made in the Statement of Fact of the belief that "[t]obacco product advertising deceptively portrays the use of tobacco as socially acceptable and healthful," and that " [ s ]uch promotions of tobacco products undermine the credibility of government and private health education campaigns against smoking."
4/ In view of this conclusion, this Opinion does not reach the more arguable question of whether the bill could be invalidated under one of the other tests ·outlined above which contemplate a declaration of implicit preemption. But see Capollone v. Liggett Group Inc., 789 F.2d 181 (3rd Cir. 1986) cert. denied, 55 U.S.L.W. 3474 (U.S. January 13, 1987; Roysden v. R. J, Reynolds Tobacco Co., 623 F. Supp. 1189 (D.C. Tenn. - 1985 }, appeal pending, No. 86-5972 (6th Cir.), holding that the fE;de:ral act implicitly preempted the state common law tort l1ab:ility of cigarette companies for suits for damages based on smok :ing and heal th which challenge the adequacy of the warnings on c::i.garette packages or the propriety of a company's action in promoting. cigarettes.

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