Rowe v. New Hampshire Transport--relating to carriers of goods

This case, from the First Circuit Court of Appeals (New England; here is the decision), pits the State of Maine against various motor carriers, especially United Parcel Service. Though there are a few technical issues for decision, the major issue is simply stated: may the State of Maine require deliverers of parcels containing tobacco products to make sure that the recipients of these products and addreesees of the packages are old enough legally to purchase such products?

Background

Some historical background is always useful. A 2000 US Supreme Court decision recognized what we have known for years: "Tobacco use, particularly among children and adolescents, poses perhaps the single most significant public health problem in the US," FDA v. Brown & Williamson, 529 US 120, 161 (2000). In order to be pro-active in handling this problem, the Maine Legislature, in 2003, passed a Tobacco Delivery Law which would require licensed tobacco retailers selling products to consumers via the Internet to take specific steps to make sure the sales aren't made to minors. The law would require the sellers to use a carrier (like UPS) which would ensure that, among other things, the addressee would sign for the package and was old enough to make tobacco purchases (by providing a government-issued ID). Maine also enacted this law because it was losing lots of tax revenue through Internet tobacco sales by unlicensed companies, and thus wanted to clamp down on these entities. The Maine law (MRSA secs 1551, 1555-C and 1555-D) can be read beginning here. As a result of its crackdown on unlicensed sales of tobacco products and delivery restrictions, Maine has been recognized as one of the top states in controlling the proliferation of tobacco products easily available to underage users. Good for Maine..or is it?

One can immediately see that even as Maine is touting its success in this way that the requirements of their law put a real crimp into the business of carriers. UPS, for example, which everyone knows, delivers about 65,000 packages a day in ME, and if they had to stop and get signatures for all packages containing tobacco products, as well as "check for ID" for these packages, their operations would seriously be curtailed. In fact, UPS would not be operating any longer in its traditional role--of men and women in those cute shorts running from truck to home and then jumping back in the truck for the next stop.

Of course, UPS, along with many other motor carriers of property, had major problems with the Maine law and decided, through their professional association New Hampshire Motor Transportation Association (hence the name of the case--Steven Rowe is the ME Attorney General), to bring suit to get a court to declare that Maine's law is invalid. They also sought what is called a "permanent injunction," which would forever bar Maine from enforcing the law. On what grounds? Well, read on...

Federal Law

In 1994 Congress passed a mouthful of a law (The Federal Aviation Administration Authorization Act of 1994; the "FAAAA") which had the following two provisions: a "State...may not enact or enforce a law...related to a price, route, or service of any motor carrier..with respect to the transportation of property" (49 USC sec. 14501(c)(1)). The law provided further that a "State may not enact or enforce a law..related to a price, route, or service of an air carrier or carrier affiliated with a direct air carrier....when such carrier is transporting property by aircraft or by motor vehicle" (49 USC sec. 51713(b)(4)(A). This law was patterned on the Airline Regulation Act of 1978. I only mention that because courts are often inclined to interpret identical provisions in subsequent laws according to the way that courts have interpreted the original law.

We can see the reason for the federal law: to make uniform the practices of carrier regulation in the states so that carriers would not have to memorize 50 separate codes of laws just to try to bring goods to consumers in those states.

This law, however, did have a few exceptions: "the safety regulatory authority of a State with respect to motor vehicles...the authority of a State to impose...highway route controls or limitations based on...the size or weight of the motor vehicle or the ...hazardous nature of the cargo, or the authority...of a State to regulate motor carrier with regard to minimum amounts of financial..responsibility relating to insurance requirements and self-insurance authorization," 49 USC secs. 14501(c)(2) and 41713(b)(4)(B)(i).

"Solving" the Issue

Two issues are presented by these facts. First, does the language of the federal law "cover" the area of regulation in the ME law? And, second, if it does so, does the federal regulation "control" or "preempt" the state law? Normally, federal preemption means that when you have both federal and state laws in the same area, the federal law prevails. But, are they in the same area? The lower court decided that a decision interpreting the 1978 Airline Regulation Act, which focused on the meaning of "relating to," meant that the 1994 FAAAA controlled in this case. Thus, the ME laws were held to be invalid.

The US Supreme Court will review this holding.

3084