U.S. Supreme Court To Hear State's Appeal In Internet-Tobacco Sales Case

June 25, 2007

Today, the United States Supreme Court announced that it has agreed to review the case Rowe v. New Hampshire Motor Transport, 06-457 filed against the State of Maine by motor transport associations in Massachusetts, New Hampshire and Vermont. The associations challenged the 2003 Maine law that requires that internet tobacco retailers utilize carriers who take specific actions to ensure that packages containing tobacco products are not delivered to minors. Attorney General Steve Rowe stated "We are pleased that the Supreme Court has agreed to hear this important case. States have the right and the duty to protect the health and safety of children. This state law does just that by preventing youth access to tobacco products." In the brief petitioning the Supreme Court to take the case, the Attorney General had criticized the lower court decision by stating that it ''leaves delivery sales of tobacco to children unregulated by any government, a result nowhere suggested by Congress or supported by common sense.'' Rowe also noted: "The state law also levels the playing field between "bricks and mortar" retail stores in Maine and internet and mail order retailers when it comes to age verification." Attorney General Rowe said that his office will likely file the State's brief in August and that the Supreme Court will likely hear the oral argument in the case in December. Background

In 2003, the Maine Legislature found that internet and telephone sales of tobacco products had become a serious problem and that, by means of delivery services, enterprising retailers were seeking to avoid over-the-counter age verification requirements by selling the tobacco products to minors and delivering them not over-the-counter, but rather through third-party carriers such as UPS. In response to this dangerous practice, the Legislature enacted "An Act To Regulate the Delivery and Sales of Tobacco Products and To Prevent the Sale of Tobacco Products to Minors," Me. Pub. L. 2003, c. 444.

One section of the Act requires retailers who ship tobacco products to use a delivery service that requires the purchaser to be the addressee, the addressee to be of legal age to purchase tobacco products and sign for the package, and, if the addressee is under 27 years old, to present a valid identification showing proof of age.

The Act also requires retailers who ship tobacco products to clearly indicate on the package that it contains tobacco products, and carriers must check packages to determine whether they bear such markings.

On October 10, 2003, three trade associations whose members include such companies as UPS, Federal Express and DHL filed a lawsuit in the United States District Court for the District of Maine and claimed that the state Act is preempted by the Federal Aviation Administration Authorization Act of 1994.

On May 27, 2005, the District Court held that the state law was preempted by the federal law and ruled in favor of the trade associations. The Attorney General appealed to the United States Court of Appeals for the First Circuit. On May 19, 2006, the First Circuit issued its decision effectively affirming the lower court's decision. The Attorney General then filed a petition asking the United States Supreme Court to review the matter.

David Loughran, Special Assistant to the Attorney General
(207) 626-8577 or david.loughran@maine.gov