(Slip Opinion) OCTOBER TERM, 2006 1 

Syllabus 

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 Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

WATSON ET AL. v. PHILIP MORRIS COS., INC., ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

No. 05–1284. Argued April 25, 2007—Decided June 11, 2007 

Petitioners filed a state-court suit claiming that respondents (Philip

Morris) violated Arkansas unfair business practice laws by advertising certain cigarette brands as “light” when, in fact, Philip Morris

had manipulated testing results to register lower levels of tar and

nicotine in the advertised cigarettes than would be delivered to consumers. Philip Morris removed the case to Federal District Court

under the federal officer removal statute, which permits removal of

an action against “any officer (or any person acting under that officer)

of the United States or of any agency thereof,” 28 U. S. C. §1442(a)(1)

(emphasis added). The federal court upheld the removal, ruling that

the complaint attacked Philip Morris’ use of the Government’s 

method of testing cigarettes and thus that petitioners had sued Philip

Morris for “acting under” the Federal Trade Commission. The Eighth

Circuit affirmed, emphasizing the FTC’s detailed supervision of the 

cigarette testing process and likening the case to others in which 

lower courts permitted removal by heavily supervised Government 

contractors. 

Held: The fact that a federal agency directs, supervises, and monitors a 

company’s activities in considerable detail does not bring that company within §1442(a)(1)’s scope and thereby permit removal. Pp. 3– 

14. 

(a) Section 1442(a)(1)’s words “acting under” are broad, and the 

statute must be “liberally construed.” Colorado v. Symes, 286 U. S. 

510, 517. But broad language is not limitless. And a liberal construction nonetheless can find limits in a text’s language, context,

history, and purposes. The statute’s history and this Court’s cases

demonstrate that its basic purpose is to protect the Federal Government from the interference with its “operations” that would ensue 
2 WATSON v. PHILIP MORRIS COS. 

Syllabus 

were a State able, for example, to “arres[t]” and bring “to trial in a

State cour[t] for an alleged offense against the law of the State,” “officers and agents” of the Government “acting . . . within the scope of

their authority.” Willingham v. Morgan, 395 U. S. 402, 406 (internal 

quotation marks omitted). State-court proceedings may reflect “local

prejudice” against unpopular federal laws or officials, e.g., Maryland 

v. Soper, 270 U. S. 9, 32, and States hostile to the Government may

impede enforcement of federal law, see, e.g., Tennessee v. Davis, 100 

U. S. 257, 263, or deprive federal officials of a federal forum in which 

to assert federal immunity defenses, see, e.g., Willingham, supra, at 

407. The removal statute applies to private persons “who lawfully

assist” a federal officer “in the performance of his official duty,” Davis 

v. South Carolina, 107 U. S. 597, 600, but “only” if the private parties

were “authorized to act with or for [federal officers or agents] in affirmatively executing duties under . . . federal law,” City of Greenwood v. Peacock, 384 U. S. 808, 824. Pp. 3–7.

(b) The relevant relationship here is that of a private person “acting under” a federal “officer” or “agency.” §1442(a)(1) (emphasis 

added). In this context, “under” must refer to what the dictionaries 

describe as a relationship involving acting in a certain capacity, considered in relation to one holding a superior position or office, and 

typically includes subjection, guidance, or control. Precedent and 

statutory purpose also make clear that the private person’s “acting

under” must involve an effort to assist, or to help carry out, the federal superior’s duties or tasks. See, e.g., Davis v. South Carolina, supra, at 600. Such aid does not include simply complying with the 

law. When a company complies with a regulatory order, it does not 

ordinarily create a significant risk of state-court “prejudice.” Cf. 

Soper, supra, at 32. A state-court suit brought against such a company is not likely to disable federal officials from taking necessary action designed to enforce federal law, cf. Tennessee v. Davis, supra, at 

262–263, nor to deny a federal forum to an individual entitled to assert a federal immunity claim, see, e.g., Willingham, supra, at 407. 

Thus, a private firm’s compliance (or noncompliance) with federal 

laws, rules, and regulations does not by itself fall within the scope of

the statutory phrase “acting under” a federal “official,” even if the 

regulation is highly detailed and even if the private firm’s activities

are highly supervised and monitored. A contrary determination

would expand the statute’s scope considerably, potentially bringing

within it state-court actions filed against private firms in many 

highly regulated industries. Nothing in the statute’s language, history, or purpose indicates a congressional intent to do so. Pp. 7–9.

(c) Philip Morris’ two arguments to the contrary are rejected. First, 

it contends that if close supervision is sufficient to turn a Gov-
Cite as: 551 U. S. ____ (2007) 3 

Syllabus 

ernment contractor into a private firm “acting under” a Government 

“agency” or “officer,” as lower courts have held, it is sufficient to 

transform a company subjected to intense regulation. The answer to 

this argument is that the assistance that private contractors provide 

federal officers goes beyond simple compliance with the law and helps 

the officers fulfill other basic governmental tasks. Second, Philip

Morris argues that it is “acting under” FTC officers when it conducts

cigarette testing because, after initially testing cigarettes for tar and

nicotine, the FTC delegated authority for that task to the tobacco industry in 1987 and has thereafter extensively supervised and closely

monitored testing. This argument contains a fatal flaw of omission.

Although it uses the word “delegation,” there is no evidence of any 

delegation of legal authority from the FTC to the tobacco industry to 

undertake testing on the Government agency’s behalf, or evidence of 

any contract, payment, employer/employee relationship, or principal/agent arrangement. The existence of detailed FTC rules indicates regulation, not delegation. The usual regulator/regulated relationship cannot be construed as bringing Philip Morris within the 

statute’s terms. Pp. 9–14. 

420 F. 3d 852, reversed and remanded. 

BREYER, J., delivered the opinion for a unanimous Court. 
_________________ 

_________________ 

Cite as: 551 U. S. ____ (2007) 1 

Opinion of the Court 

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, Washington, 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. 05–1284 

LISA WATSON, ET AL., PETITIONERS v. PHILIP 

MORRIS COMPANIES, INC., ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 11, 2007] 

JUSTICE BREYER delivered the opinion of the Court. 

The federal officer removal statute permits a defendant 

to remove to federal court a state-court action brought 

against the 

“United States or any agency thereof or any officer (or 

any person acting under that officer) of the United

States or of any agency thereof, sued in an official or 

individual capacity for any act under color of such office . . . .” 28 U. S. C. §1442(a)(1) (emphasis added). 

The question before us is whether the fact that a federal

regulatory agency directs, supervises, and monitors a 

company’s activities in considerable detail brings that

company within the scope of the italicized language (“acting under” an “officer” of the United States) and thereby 

permits removal. We hold that it does not. 

I 

Lisa Watson and Loretta Lawson, the petitioners, filed a 

civil lawsuit in Arkansas state court claiming that the

Philip Morris Companies, the respondents, violated state

laws prohibiting unfair and deceptive business practices. 
2 WATSON v. PHILIP MORRIS COS. 

Opinion of the Court 

The complaint focuses upon advertisements and packaging that describe certain Philip Morris brand cigarettes

(Marlboro and Cambridge Lights) as “light,” a term indicating lower tar and nicotine levels than those present in

other cigarettes. More specifically, the complaint refers to 

the design and performance of Philip Morris cigarettes

that are tested in accordance with the Cambridge Filter 

Method, a method that “the tobacco industry [uses] to 

‘measure’ tar and nicotine levels in cigarettes.” App. to 

Pet. for Cert. 63a–64a. The complaint charges that Philip 

Morris “manipulat[ed] the design” of its cigarettes, and

“employ[ed] techniques that” would cause its cigarettes “to

register lower levels of tar and nicotine on [the Cambridge 

Filter Method] than would be delivered to the consumers

of the product.” Id., at 63a–65a. The complaint adds that

the Philip Morris cigarettes delivered “greater amounts of 

tar and nicotine when smoked under actual conditions” 

than the adjective “light” as used in its advertising indicates. Id., at 65a. In view of these and other related 

practices, the complaint concludes that Philip Morris’ 

behavior was “deceptive and misleading” under Arkansas 

law. Id., at 64a, 66a. 

Philip Morris, referring to the federal officer removal 

statute, removed the case to Federal District Court. That 

court, in turn, held that the statute authorized the removal. The court wrote that the complaint attacked Philip 

Morris’ use of the Government’s method of testing cigarettes. For this reason (and others), it held that the petitioners had sued Philip Morris for “act[s]” taken “under”

the Federal Trade Commission, a federal agency (staffed 

by federal “officer[s]”).

The District Court certified the question for interlocutory review. And the United States Court of Appeals for

the Eighth Circuit affirmed. Like the District Court, it 

emphasized the FTC’s detailed supervision of the cigarette 

testing process. It also cited lower court cases permitting 
Cite as: 551 U. S. ____ (2007) 3 

Opinion of the Court 

removal by heavily supervised Government contractors.

See 420 F. 3d 852, 857 (2005); Winters v. Diamond Shamrock Chemical Co., 149 F. 3d 387 (CA5 1998) (authorizing 

removal of a tort suit against private defense contractors 

that manufactured Agent Orange). The Eighth Circuit

concluded that Philip Morris was “acting under” federal 

“officer[s],” namely the FTC, with respect to the challenged conduct. 420 F. 3d, at 854. 

We granted certiorari. 549 U. S. ___ (2007). And we 

now reverse the Eighth Circuit’s determination. 

II 

The federal statute permits removal only if Philip Morris, in carrying out the “act[s]” that are the subject of the 

petitioners’ complaint, was “acting under” any “agency” or

“officer” of “the United States.” 28 U. S. C. §1442(a)(1). 

The words “acting under” are broad, and this Court has

made clear that the statute must be “liberally construed.” 

Colorado v. Symes, 286 U. S. 510, 517 (1932); see Arizona 

v. Manypenny, 451 U. S. 232, 242 (1981); Willingham v. 

Morgan, 395 U. S. 402, 406–407 (1969). But broad language is not limitless. And a liberal construction nonetheless can find limits in a text’s language, context, history, 

and purposes.

Beginning with history, we note that Congress enacted 

the original federal officer removal statute near the end of 

the War of 1812, a war that was not popular in New England. See id., at 405. Indeed, shipowners from that region 

filed many state-court claims against federal customs

officials charged with enforcing a trade embargo with

England. See Wiecek, The Reconstruction of Federal 

Judicial Power, 1863–1875, 13 Am. J. Legal Hist. 333, 337

(1969). Congress responded with a provision that permitted federal customs officers and “any other person aiding 

or assisting” those officers to remove a case filed against

them “in any state court” to federal court. Customs Act of 
4 WATSON v. PHILIP MORRIS COS. 

Opinion of the Court 

1815, ch. 31, §8, 3 Stat. 198 (emphasis added). This initial 

removal statute was “[o]bviously . . . an attempt to protect

federal officers from interference by hostile state courts.” 

Willingham, 395 U. S., at 405. 

In the early 1830’s, South Carolina passed a Nullification Act declaring federal tariff laws unconstitutional and

authorizing prosecution of the federal agents who collected

the tariffs. See ibid. Congress then enacted a new statute 

that permitted “any officer of the United States, or other 

person” to remove to federal court a lawsuit filed against 

the officer “for or on account of any act done under the 

revenue laws of the United States.” Act of Mar. 2, 1833, 

ch. 57, §3, 4 Stat. 633 (emphasis added). As Senator 

Daniel Webster explained at the time, where state courts 

might prove hostile to federal law, and hence to those who 

enforced that law, the removal statute would “give a 

chance to the [federal] officer to defend himself where the

authority of the law was recognised.” 9 Cong. Deb. 461

(1833).

Soon after the Civil War, Congress enacted yet another

officer removal statute, permitting removal of a suit

against any revenue officer “on account of any act done 

under color of his office” by the revenue officer and “any 

person acting under or by authority of any such officer.”

Act of July 13, 1866, ch. 184, §67, 14 Stat. 171 (emphasis 

added). Elsewhere the statute restricted these latter 

persons to those engaged in acts “for the collection of

taxes.” §67, id., at 172. 

In 1948, Congress again revised the statute, dropping 

its limitation to the revenue context. And it included the 

rewritten statute within its 1948 recodification. See Act of 

June 25, 1948, ch. 646, §1442(a), 62 Stat. 938, 28 U. S. C. 

§1442(a). It is this version of the statute that, with the 

exception of a modification in response to this Court’s

decision in International Primate Protection League v. 

Administrators of Tulane Ed. Fund, 500 U. S. 72 (1991), is 
Cite as: 551 U. S. ____ (2007) 5 

Opinion of the Court 

now before us. While Congress expanded the statute’s 

coverage to include all federal officers, it nowhere indicated any intent to change the scope of words, such as

“acting under,” that described the triggering relationship

between a private entity and a federal officer.

Turning to precedent, we point to three cases, all involving illegal liquor, which help to illustrate the need for, and 

the workings of, the pre-1948 removal statutes. In 1878, a 

federal revenue officer, James Davis, raided an illegal

distillery in Tennessee; was ambushed by several armed 

men; returned the ambushers’ gunfire; and shot one of his

attackers dead. See Tennessee v. Davis, 100 U. S. 257, 261 

(1880). Tennessee indicted Davis for murder. The Court 

held that the statute permitted Davis to remove the case 

to federal court, reasoning that the Federal Government

“can act only through its officers and agents, and they

must act within the States.” Id., at 263. Removal, the 

Court found, would help to prevent hostile States from

“paralyz[ing]” the Federal Government and its initiatives. 

Ibid. 

About the same time, a U. S. Army corporal (also called

Davis, Lemuel Davis) along with several other soldiers

helped a federal revenue officer try to arrest a distiller for 

violating the internal-revenue laws. The soldiers surrounded the house; the distiller escaped through a hole in 

a side wall; Corporal Davis shot the suspect; and South

Carolina indicted Davis for murder. Davis removed the 

case, and this Court upheld the removal. The Court acknowledged that, although Davis was not a revenue officer, he was a person “who lawfully assist[ed]” a revenue

officer “in the performance of his official duty.” Davis v. 

South Carolina, 107 U. S. 597, 600 (1883).

In the 1920’s, Maryland charged a group of prohibition 

agents and a private person acting as their driver with a 

murder committed during a distillery raid. See Maryland 

v. Soper, 270 U. S. 9 (1926). The prohibition agents and 
6 WATSON v. PHILIP MORRIS COS. 

Opinion of the Court 

their driver sought to remove the state murder trial to

federal court. This Court ultimately rejected their removal efforts for reasons not relevant here. But in doing 

so it pointed out that the private person acting “as a

chauffeur and helper to the four officers under their orders 

and . . . direction” had “the same right to the benefit of” 

the removal provision as did the federal agents. Id., at 30. 

Apart from demonstrating the dangers associated with

working in the illegal alcohol business, these three cases— 

Tennessee v. Davis, Davis v. South Carolina, and Maryland v. Soper—illustrate that the removal statute’s “basic” 

purpose is to protect the Federal Government from the 

interference with its “operations” that would ensue were a 

State able, for example, to “arres[t]” and bring “to trial in

a State cour[t] for an alleged offense against the law of the 

State,” “officers and agents” of the Federal Government

“acting . . . within the scope of their authority.” Willingham, 395 U. S., at 406 (internal quotation marks omitted). 

See also ibid. (noting that the “purpose” of the statute “is

not hard to discern”). State-court proceedings may reflect 

“local prejudice” against unpopular federal laws or federal 

officials. Soper, supra, at 32; see Manypenny, 451 U. S., at 

242 (noting that removal permits trials to occur free from

“local . . . prejudice”). In addition, States hostile to the 

Federal Government may impede through delay federal

revenue collection or the enforcement of other federal law. 

See Tennessee v. Davis, supra, at 263; cf. Findley v. 

Satterfield, 9 F. Cas. 67, 68 (No. 4,792) (CC ND Ga. 1877). 

And States may deprive federal officials of a federal forum 

in which to assert federal immunity defenses. See International Primate Protection League, supra, at 86–87; 

Willingham, supra, at 407 (“[O]ne of the most important 

reasons for removal is to have the validity of the defense of

official immunity tried in a federal court”); Jefferson 

County v. Acker, 527 U. S. 423, 447 (1999) (SCALIA, J., 

concurring in part and dissenting in part) (noting that “the 
Cite as: 551 U. S. ____ (2007) 7 

Opinion of the Court 

main point” of the federal officer removal statute “is to

give officers a federal forum in which to litigate the merits 

of immunity defenses”). 

Where a private person acts as an assistant to a federal

official in helping that official to enforce federal law, some 

of these same considerations may apply. Regardless, in 

Davis v. South Carolina the Court wrote that the removal 

statute applies to private persons “who lawfully assist” the 

federal officer “in the performance of his official duty.”

107 U. S., at 600. And in City of Greenwood v. Peacock, 

384 U. S. 808, 824 (1966), in interpreting a related removal provision, the Court repeated that the statute

authorized removal by private parties “only” if they were 

“authorized to act with or for [federal officers or agents] in

affirmatively executing duties under . . . federal law.” All 

the Court’s relevant post-1948 federal officer removal

cases that we have found reflect or are consistent with this 

Court’s pre-1948 views. See Mesa v. California, 489 U. S. 

121 (1989); Manypenny, supra; Willingham, supra; Peacock, supra. 

III 

With this history and precedent in mind, we return to

the statute’s language. The relevant relationship is that 

of a private person “acting under” a federal “officer” or 

“agency.” 28 U. S. C. §1442(a)(1) (emphasis added). In 

this context, the word “under” must refer to what has been 

described as a relationship that involves “acting in a certain capacity, considered in relation to one holding a superior position or office.” 18 Oxford English Dictionary 948 

(2d ed. 1989). That relationship typically involves “subjection, guidance, or control.” Webster’s New International 

Dictionary 2765 (2d ed. 1953). See also Funk & Wagnalls

New Standard Dictionary of the English Language 2604

(1942) (defining “under” as meaning “[s]ubordinate or 

subservient to,” “[s]ubject to guidance, tutorship, or direc-
8 WATSON v. PHILIP MORRIS COS. 

Opinion of the Court 

tion of”); 18 Oxford English Dictionary, supra, at 949 

(“[s]ubject to the instruction, direction, or guidance of”). In 

addition, precedent and statutory purpose make clear that

the private person’s “acting under” must involve an effort 

to assist, or to help carry out, the duties or tasks of the 

federal superior. See, e.g., Davis v. South Carolina, supra,

at 600; see also supra, at 5–7. 

In our view, the help or assistance necessary to bring a 

private person within the scope of the statute does not 

include simply complying with the law. We recognize that

sometimes an English speaker might say that one who

complies with the law “helps” or “assists” governmental 

law enforcement. Taxpayers who fill out complex federal 

tax forms, airline passengers who obey federal regulations

prohibiting smoking, for that matter well-behaved federal

prisoners, all “help” or “assist” federal law enforcement 

authorities in some sense of those words. But that is not 

the sense of “help” or “assist” that can bring a private 

action within the scope of this statute. That is in part a 

matter of language. One would usually describe the behavior of the taxpayers, airline passengers, and prisoners 

we have described as compliance with the law (or acquiescence to an order), not as “acting under” a federal official 

who is giving an order or enforcing the law. It is also in 

part a matter of the history and the precedent we have

discussed. See supra, at 3–7. 

Finally, it is a matter of statutory purpose. When a 

company subject to a regulatory order (even a highly 

complex order) complies with the order, it does not ordinarily create a significant risk of state-court “prejudice.”

Cf. Soper, 270 U. S., at 32; Manypenny, supra, at 241–242. 

Nor is a state-court lawsuit brought against such a company likely to disable federal officials from taking necessary action designed to enforce federal law. Cf. Tennessee 

v. Davis, 100 U. S., at 262–263. Nor is such a lawsuit 

likely to deny a federal forum to an individual entitled to 
Cite as: 551 U. S. ____ (2007) 9 

Opinion of the Court 

assert a federal claim of immunity. See, e.g., Willingham, 

395 U. S., at 407. 

The upshot is that a highly regulated firm cannot find a

statutory basis for removal in the fact of federal regulation

alone. A private firm’s compliance (or noncompliance) 

with federal laws, rules, and regulations does not by itself 

fall within the scope of the statutory phrase “acting under” 

a federal “official.” And that is so even if the regulation is

highly detailed and even if the private firm’s activities are

highly supervised and monitored. A contrary determination would expand the scope of the statute considerably, 

potentially bringing within its scope state-court actions

filed against private firms in many highly regulated industries. See, e.g., Federal Insecticide, Fungicide, and 

Rodenticide Act, 7 U. S. C. §136a (2000 ed. and Supp. IV)

(mandating disclosure of testing results in the context of

pesticide registration). Neither language, nor history, nor 

purpose lead us to believe that Congress intended any 

such expansion. 

IV 

Philip Morris advances two important arguments to the 

contrary. First, it points out that lower courts have held 

that Government contractors fall within the terms of the 

federal officer removal statute, at least when the relationship between the contractor and the Government is an

unusually close one involving detailed regulation, monitoring, or supervision. See, e.g., Winters, 149 F. 3d 387. And 

it asks why, if close supervision is sufficient to turn a 

private contractor into a private firm “acting under” a

Government “agency” or “officer,” does it not do the same

when a company is subjected to intense regulation.

The answer to this question lies in the fact that the

private contractor in such cases is helping the Government to produce an item that it needs. The assistance 

that private contractors provide federal officers goes be-
10 WATSON v. PHILIP MORRIS COS. 

Opinion of the Court 

yond simple compliance with the law and helps officers 

fulfill other basic governmental tasks. In the context of 

Winters, for example, Dow Chemical fulfilled the terms of 

a contractual agreement by providing the Government

with a product that it used to help conduct a war. Moreover, at least arguably, Dow performed a job that, in the

absence of a contract with a private firm, the Government 

itself would have had to perform.

These circumstances distinguish Winters from this case. 

For present purposes that distinction is sufficient. And we 

need not further examine here (a case where private contracting is not at issue) whether and when particular 

circumstances may enable private contractors to invoke 

the statute. 

Second, Philip Morris argues that its activities at issue 

here did not consist simply of compliance with regulatory

laws, rules, and orders. It contends that the FTC, after 

initially testing cigarettes for tar and nicotine, “delegated 

authority” for that task to an industry-financed testing

laboratory in 1987. E.g., Brief for Respondents 31 (emphasis added). And Philip Morris asserts that (along with 

other cigarette companies) it was acting pursuant to that 

delegation. It adds that ever since this initial “delegation” 

the FTC has “extensive[ly] . . . supervis[ed]” and “closely

monitored” the manner in which the laboratory tests 

cigarettes. Id., at 37, 30, 39. Philip Morris concludes that, 

given all these circumstances, just as Dow was “acting 

under” officers of the Department of Defense when it 

manufactured Agent Orange, see Winters, supra, at 399, 

so Philip Morris is “acting under” officers of the FTC when

it conducts cigarette testing. See Brief for Respondents

38. 

For argument’s sake we shall overlook the fact that the

petitioners appear to challenge the way in which Philip 

Morris “designed” its cigarettes, not the way in which it (or

the industry laboratory) conducted cigarette testing. We 
Cite as: 551 U. S. ____ (2007) 11 

Opinion of the Court 

also shall assume the following testing-related facts that

Philip Morris sets forth in its brief: 

(1) In the 1950’s, the FTC ordered tobacco companies

to stop advertising the amount of tar and nicotine contained in their cigarettes. See id., at 3. 

(2) In 1966, the FTC altered course. It permitted

cigarette companies to advertise “tar and nicotine 

yields” provided that the company had substantiated

its statement through use of the Cambridge Filter 

Method, a testing method developed by Dr. Clyde Ogg,

a Department of Agriculture employee. Id., at 4–5. 

(3) The Cambridge Filter Method uses “a smoking 

machine that takes a 35 milliliter puff of two seconds’ 

duration on a cigarette every 60 seconds until the 

cigarette is smoked to a specified butt length.” FTC v. 

Brown & Williamson Tobacco Corp., 778 F. 2d 35, 37 

(CADC 1985). It then measures the amount of tar 

and nicotine that is delivered. That data, in turn, determine whether a cigarette may be labeled as “light.” 

This method, Dr. Ogg has testified, “will not tell a 

smoker how much tar and nicotine he will get from

any given cigarette,” but it “will indicate” whether a 

smoker “will get more from one than from another 

cigarette if there is a significant difference between 

the two and if he smokes the two in the same manner.” Brief for Respondents 5–6 (internal quotation 

marks omitted). 

(4) In 1967, the FTC began to use its own laboratory 

to perform these tests. See id., at 6. And the Cambridge Filter Method began to be referred to as “the 

‘FTC Method.’” Id., at 4. 

(5) The FTC published the testing results periodically 

and sent the results annually to Congress. See id., at 

7. 

(6) Due to cost considerations, the FTC stopped test-
12 WATSON v. PHILIP MORRIS COS. 

Opinion of the Court 

ing cigarettes for tar and nicotine in 1987. Simultaneously, the tobacco industry assumed responsibility 

for cigarette testing, running the tests according to

FTC specifications and permitting the FTC to monitor 

the process closely. See ibid. 

(7) The FTC continues to publish the testing results

and to send them to Congress. See ibid. 

(8) The tobacco industry has followed the FTC’s requirement that cigarette manufacturers disclose (and 

make claims about) tar and nicotine content based exclusively on the results of this testing. See id., at 8–9. 

Assuming this timeline, Philip Morris’ argument nonetheless contains a fatal flaw—a flaw of omission. Although Philip Morris uses the word “delegation” or variations many times throughout its brief, we have found no

evidence of any delegation of legal authority from the FTC 

to the industry association to undertake testing on the 

Government agency’s behalf. Nor is there evidence of any 

contract, any payment, any employer/employee relationship, or any principal/agent arrangement.

We have examined all of the documents to which Philip 

Morris and certain supporting amici refer. Some of those 

documents refer to cigarette testing specifications, others

refer to the FTC’s inspection and supervision of the industry laboratory’s testing, and still others refer to the FTC’s

prohibition of statements in cigarette advertising. But 

none of these documents establish the type of formal

delegation that might authorize Philip Morris to remove

the case. 

Several former FTC officials, for example, filed an 

amicus brief in which they state that “[i]n 198[7] the FTC 

delegated testing responsibility to the private Tobacco 

Industry Testing Lab (the ‘TITL’).” Brief for Former Commissioners and Senior Staff of the FTC 11. But in support

of this proposition the brief cites a single source, a letter 
Cite as: 551 U. S. ____ (2007) 13 

Opinion of the Court 

from the cigarette manufacturers’ lawyer to an FTC official. That letter states: 

“[M]ajor United States cigarette manufacturers, who 

are responsible for the TITL’s operations and on

whose behalf we are writing, do not believe that 

Commission oversight is needed . . . . Nevertheless, as 

an accommodation and in the spirit of cooperation, the 

manufacturers are prepared to permit Commission

employees to monitor the TITL testing program . . . .” 

Letter from John P. Rupp to Judith P. Wilkenfeld

(June 30, 1987), online at http://tobaccodocuments. 

org/nysa_ti_s1/TI57900738.html (as visited June 7,

2007, and available in Clerk of Court’s case file). 

Nothing in this letter refers to a delegation of authority. 

And neither Congress nor federal agencies normally delegate legal authority to private entities without saying that

they are doing so.

Without evidence of some such special relationship,

Philip Morris’ analogy to Government contracting breaks

down. We are left with the FTC’s detailed rules about 

advertising, specifications for testing, requirements about 

reporting results, and the like. This sounds to us like 

regulation, not delegation. If there is a difference between 

this kind of regulation and, say, that of Food and Drug 

Administration regulation of prescription drug marketing 

and advertising (which also involve testing requirements), 

see Serono Labs., Inc. v. Shalala, 158 F. 3d 1313, 1316 

(CADC 1998), that difference is one of degree, not kind. 

As we have pointed out, however, differences in the

degree of regulatory detail or supervision cannot by themselves transform Philip Morris’ regulatory compliance into 

the kind of assistance that might bring the FTC within the

scope of the statutory phrase “acting under” a federal 

“officer.” Supra, at 8. And, though we find considerable 

regulatory detail and supervision, we can find nothing 
14 WATSON v. PHILIP MORRIS COS. 

Opinion of the Court 

that warrants treating the FTC/Philip Morris relationship

as distinct from the usual regulator/regulated relationship. This relationship, as we have explained, cannot be 

construed as bringing Philip Morris within the terms of 

the statute. 

For these reasons, the judgment of the Eighth Circuit is

reversed, and the case is remanded for further proceedings 

consistent with this opinion. 

It is so ordered.