Tobacco transport case argued before U.S. SC

By John O'Brien | Nov 28, 2007


WASHINGTON, D.C. - The U.S. Supreme Court was scheduled to hear arguments Wednesday from Maine Attorney General Steven Rowe's office and several motor transport associations over a 2003 state law that concerning online tobacco sales.

Deputy Attorney General Paul Stern was scheduled to be there to defend the law, which requires online tobacco retailers to use carriers that make sure packages containing tobacco products are not delivered to minors. Certiorari was granted in June.

"States have the right and the duty to protect the health and safety of children," Rowe has said. "This state law does just that by preventing youth access to tobacco products."

Motor transport associations in Massachusetts, New Hampshire and Vermont contend that a federal statute concerning the free flow of interstate commerce pre-empted the Maine law. The 1st U.S. Circuit Court of Appeals agreed, though Rowe criticized the decision.

He said it "leaves delivery sales of tobacco to children unregulated by any government, a result nowhere suggested by Congress or supported by common sense."

The Supreme Court will answer two questions. The first is, "Whether the Federal Aviation Administration Authorization Act of 1994... preempts states from exercising their historic public health police powers to regulate carriers that deliver contraband such as tobacco and other dangerous substances to children."

The other is, "Whether the FAAAA preempts states from exercising their historic public health police powers to require shippers of contraband such as tobacco and other dangerous substances to utilize a carrier that provides age verification and signature services to ensure that such substances are not delivered to children."

The Maine Law in question (An Act to Regulate the Delivery and Sales of Tobacco Products and To Prevent the Sale of Tobacco Products to Minors) is being challenged by the New Hampshire Motor Transport Association and other trade associations.

According to a previous report by The Associated Press, President Bush sided with the plaintiffs and asked the justices to reject the appeal. Wednesday, Douglas Hallward-Driemeier was scheduled to represent the Office of the Solicitor General while arguing on behalf of the trade associations.

Others who filed amicus briefs in support of the associations were Federal Express, Air Transport Association of America, American Trucking Associations and the U.S. Chamber of Commerce.

Among those who filed amicus briefs in support of Rowe were the Tobacco Control Legal Consortium, National Conference of State Legislatures and 39 states and the District of Columbia.

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