Rowe v. New Hampshire Motor Transport Association
Issues
1. Does the Federal Aviation Administration Authorization Act of 1994 ("FAAAA") prevent states from regulating commercial tobacco product transportation?
2. Does the FAAAA prevent states from requiring shippers of tobacco to require their carrier to ensure that the addressee is old enough to purchase tobacco products?
Under Maine law, mail-order tobacco product retailers must require their delivery service to verify that the purchaser is not a minor. Delivery services are deemed to know that a package contains tobacco products under certain circumstances. The New Hampshire Motor Transport Association, together with other trade associations representing air and motor carriers of property ("Associations"), have challenged these provisions, arguing that they impinge upon exclusive federal authority over carriers under the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"). The Attorney General of Maine, G. Steven Rowe ("Attorney General"), responds that Congress did not intend the FAAAA to limit state public health regulations such as tobacco controls. The Court of Appeals for the First Circuit agreed with the Associations and invalidated Maine's law. The Supreme Court's holding in this case likely will clarify the line between federal authority over carriers and state authority over public health matters. If the Attorney General prevails, Maine will be able to continue its strategy of controlling mail-order sales of tobacco products by regulating tobacco product transportation. On the other hand, a victory for the Associations would protect carriers from the potentially costly threat of inconsistent state laws. The health of the economically crucial package carrier industry and the health of minors exposed to tobacco products lie in the balance.
Questions as Framed for the Court by the Parties
1. Whether the Federal Aviation Administration Authorization Act of 1994 ("FAAAA"), 49 U.S.C. ยง14501(c)(1) and 41713(b)(4)(A), 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.
2. 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.
In 2003, Maine adopted a law regulating the shipping and delivery of mail-order tobacco products. See N.H. Motor Transp. Ass'n v. Rowe, 448 F.3d 66, 69-70 (1st Cir. 2006) (describing "An Act to Regulate the Sale of Tobacco Products and to Prevent the Sale of Cigarettes to Minors," codified as Me. Rev. Stat. Ann. tit.