In Altria Group, Inc. v. Good , the Supreme Court agreed to resolve a split that developed in the circuit courts with regard to whether the Federal Cigarette Labeling and Advertising Act (FCLAA) expressly or impliedly preempted state law claims regarding light or low-tar nicotine descriptors in cigarette advertisements. On December 15, 2008, the Court in Good , by a vote of 5-4, affirmed the First Circuit Court of Appeals' holding that the FCLAA neither expressly nor impliedly preempted the respondents' state common law fraud claim. The Supreme Court has discussed the preemptive effect of the FCLAA in two previous cases, Cipollone v. Liggett Group, Inc. and Lo ri l lard Tobacco Co. v. Reilly . A plurality in Cipollone created a test to determine which common law claims were preempted by the FCLAA; the application of this test was further elucidated in Reilly and became an issue once more in Good . This report first provides an overview of the doctrine of preemption, the history of the FCLAA, and the major Supreme Court decisions that have interpreted the preemption provision (§5) of the act. It then discusses the relevant lower court decisions and the split that arose between the circuit courts. This report examines the Supreme Court's decision in Altria Group, Inc. v. Good and the effect this decision could have on future tobacco litigation and preemption jurisprudence, in addition to the effect of H.R. 1256 , the Family Smoking Prevention and Tobacco Control Act. This section examines the development of the preemption provisions in the FCLAA, the preemption doctrine, as well the two Supreme Court cases, Cipollone and Reilly , that have discussed the preemptive effect of the FCLAA. Congress enacted the FCLAA in 1965 (1965 Act) to establish "a comprehensive Federal Program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health, [so that]: (1) the public may be adequately informed cigarette smoking may be hazardous to health by inclusion of a warning to that effect on each package 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, non-uniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health." To meet these purposes, the 1965 Act mandated a warning on cigarette packages but temporarily (through June 1969) barred the Federal Trade Commission (FTC) from requiring such a warning in cigarette advertising. The act's preemption provisions in §5 provided: (a) Additional Statements: 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) State Regulations: 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. In May 1969, as the congressionally imposed moratorium on including a warning in cigarette advertising was about to expire, the FTC proposed such a warning. Shortly thereafter, Congress enacted the Public Health Cigarette Smoking Act of 1969, which amended the FCLAA by strengthening the health warning on packages, further prohibiting the FTC (through June 1971) from requiring a warning in advertising, and modifying the preemption language in §5(b) to read: (b) State Regulations: 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. It was the scope and effect of these preemption provisions that were at issue in Cipollone , Reilly , and Good . In all three cases, the Court explored the questions that are raised when state statutes or common law causes of action impose requirements that conflict with federal laws. The preemption doctrine is derived from the Supremacy Clause of the United States Constitution, which establishes that the laws of the United States "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding." When considering issues that arise under the Supremacy Clause, the Court "starts with the assumption that the historic police powers of the States [are] not to be superseded by the ... Federal Act unless that [is] the clear and manifest purpose of Congress." In other words, the Court begins a preemption analysis with a presumption against preemption. Traditionally, the Court has recognized both express and implied forms of preemption, which are "compelled whether Congress' command is explicitly stated in the statute's language, or implicitly contained in its structure and purpose." Both types of preemption may apply to state legislation, regulations, and common law. Accordingly, the Supreme Court has held that "whether a certain state action is preempted by federal law is one of congressional intent. The purpose of Congress is the ultimate touchstone. To discern Congress' intent we examine the explicit statutory language and the structure and purpose of the statute." In the express preemption context, a federal statute will be deemed to supplant existing state law to the extent that it contains an explicit provision to that effect, the scope of which is determined by interpreting the language of the provision and analyzing the legislative history as necessary. Absent explicit preemptive language, federal law may preempt state law implicitly. The Court has identified three different categories of implied preemption: (1) where the scheme of the federal law is "so pervasive so as to make reasonable the inference that Congress left no room for the States to supplant it," also known as "field preemption"; (2) where compliance with both federal and state law regulations is a physical impossibility, also known as "conflict preemption"; and (3) where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," also known as "frustration of purpose." Predicting how the courts will apply these standards is highly speculative. The Supreme Court itself has noted that "none of these expressions provide an infallible constitutional test or an exclusive constitutional yardstick. In the final analysis, there can be no one crystal clear distinctly marked formula." Thus, cases involving federal preemption often hinge on the particular factual circumstances of a given case. In 1992, the Supreme Court issued its decision in Cipollone v. Liggett Group, Inc. , where a plurality declared that the FCLAA preempts certain types of tort actions that are brought against cigarette manufacturers under state common law. Among other things, the plaintiff claimed that the defendant cigarette manufacturers had: (1) failed to provide adequate warnings on health consequences; (2) breached express warranties that their cigarettes did not present any significant health consequences; (3) fraudulently attempted to neutralize the federally mandated warning labels through advertising; (4) fraudulently concealed medical and scientific data; and (5) conspired to deprive the public of such medical and scientific data. The defendants argued that the FCLAA preempted these state law claims ( i.e. , federal law prevented these types of state law claims from being brought in court). Because the FCLAA contained express preemptive language in §5 (see above), the Court had to analyze whether these provisions prevented a state from awarding damages on claims for torts, such as failure to warn and fraudulent misrepresentation. To determine the domain expressly preempted, the Court compared the 1965 and the 1969 Acts, as it felt that the language of the two substantially differed. The Court first analyzed the preemption provision of the 1965 Act, determining that neither preemption provision of §5 preempted state damages actions, but "merely prohibited state and federal rulemaking bodies from mandating particular cautionary statements on cigarette labels (§5(a)) or in cigarette advertising (§5(b))." In supporting this interpretation, the Court emphasized that "there is no general, inherent conflict between federal preemption of state warning requirements and the continued vitality of state common law damages actions." With respect to the 1965 Act, the Court determined that "§5 is best read as having superseded only positive enactments by legislatures or administrative agencies that mandate particular warning labels." The Court then analyzed the 1969 Act, stating that the plain language of the preemption provision in §5(b) was much broader than the one in the 1965 Act. The Court treated the two preemption provisions separately. Having concluded that §5(a), which was not amended by the 1969 Act, superseded only positive enactments, it found that §5(a) continued to not preempt state courts from awarding damages that, in effect, could require additional warnings labels on cigarette packages. However, in parts of the opinion to which only a plurality joined, the Court construed §5(b), which prohibits states from imposing any requirement or prohibition with respect to cigarette advertising or promotion, as broader and as intended to preempt some common law claims. The plurality stated that preemption under §5(b) could not be limited to positive enactments of law, and it extended the subsection's preemptive reach to include common law claims, emphasizing that the Court had long recognized "the phrase 'State law' to include common law as well as statutes and regulations." In accordance with this broader reading of "State law" in the 1969 Act to include common law claims, the plurality noted that "[state] regulation can be as effectively exerted through an award of damages as through some form of preventive relief. The obligation to pay compensation can be ... a potent method of governing conduct and controlling policy." The plurality developed the "predicate duty" test to determine when a particular common law claim is preempted.