On appeal from the Superior Court, Law Division, Bergen County, whose decision is reported at 216 N.J. Super. 347.
Petrella, Baime and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
In this cigarette product liability action, plaintiff sought damages from defendant cigarette manufacturer, Brown & Williamson Tobacco Corporation, for the death of her husband. Judge Lucchi granted defendant's motion for partial summary judgment, dismissing that count of plaintiff's complaint which asserted liability based upon defendant's failure to warn of the dangers of smoking its product, Viceroy cigarettes, but denied the balance of defendant's motion. By leave granted, the parties separately appealed from these rulings. For purposes of this opinion we consolidate these appeals and affirm, substantially for the reasons expressed by Judge Lucchi in his written opinion, reported at 216 N.J. Super. 347 (Law Div.1986), and subject to such modifications as intervening law makes necessary.*fn1
We are first satisfied, as was Judge Lucchi, that plaintiff's cause of action for failure to warn is preempted by the 1965 Cigarette Labeling and Advertising Act, 15 U.S.C.A. sec. 1331 et seq. (Labeling Act) (216 N.J. Super. at 350). We recognize that Judge Lucchi's ruling was grounded in his conviction that he was bound by the federal courts in their interpretation of federal statutes, particularly by the opinion of the Third Circuit in Cipollone v. Liggett Group, Inc., 789 F.2d 181, 185-188
(3 Cir.1986), cert. den. U.S. , 107, S. Ct. 907, 93 L. Ed. 2d 857 (1987) (216 N.J. Super. at 351-352).
We need not rule, however, on whether Judge Lucchi was bound by the Third Circuit opinion.*fn2 Our independent review convinces us that the Labeling Act does preempt plaintiff's common law action for failure to warn. 15 U.S.C.A. sec. 1334. See Feldman v. Lederle Laboratories, 97 N.J. 429, 460 (1984); Andre v. Union Tank Car Co., Inc., 213 N.J. Super. 51, 65 (Law Div.1985), aff'd 216 N.J. Super. 219 (App.Div.1987).
Any preemption analysis begins with examining whether the preemption is "express." "Express preemption" is defined as created by Congress's declaration to preclude state regulation in the given area, and "implied preemption" occurs when Congress, "through the structure or objectives of federal law, has impliedly precluded state regulation in the area." L. Tribe, American Constitutional Law, sec. 6-25 at 481 n. 14 (2d ed. 1988).
Because all of the cases construing the preemptive effect of the Act have concluded that what is involved is "implied preemption", we consider Professor Tribe's further words apposite.
These . . . categories of preemption are anything but analytically air-tight. For example, even when Congress declares its preemptive intent in express language,
deciding exactly what it meant to preempt often resembles an exercise in implied preemptive analysis. [ Ibid. ]
The specific preemptive language is:
(a) No statement relating to smoking and health, other than the statement required by [the Act], shall be required on any cigarette package.
(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 chapter. [15 U.S.C.A. sec. 1334].
Admittedly, section 1334 does not expressly prohibit state tort actions which are predicated on asserting that the cigarette manufacturer's required warning on the package is inadequate. In construing the congressional meaning, we look to the nature of the subject. Tort claims are an area traditionally reserved to the states. We acknowledge the presumption against preemption. The United States Supreme Court has repeatedly emphasized that, "'the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" Puerto Rico Dep't of Consumer Affairs v. Isla Petroleum Corp., U.S. , , 108 S. Ct. 1350, 99 L. Ed. 2d 582, (1988), quoting Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 715, 105 S. Ct. 2371, 2376, 85 L. Ed. 2d 714 (1985).
On the other hand, although the extent of the preemption in the Act requires statutory construction, the fact of preemption is express. Not only does the Act say that no "State law" may require a different cigarette warning, it also says that one object of the Act is to prevent "diverse, nonuniform, and confusing cigarette labeling and advertising regulations," 15 U.S.C.A. sec. 1331. Our task, therefore, is to construe this specific preemptive language and to give effect to the Congressional intent there expressed. Cf. California Federal ...