506
Syllabus
promotions should have included additional, or more clearly stated, warnings, those claims rely on a state-law "requirement or prohibition . . . with respect to . . . advertising or promotion" within § 5(b)'s meaning and are pre-empted. Pp. 524-525. (c) To the extent that petitioner has a viable claim for breach of express warranties, that claim is not pre-empted. While the general duty not to breach such warranties arises under state law, a manufacturer's liability for the breach derives from, and is measured by, the terms of the warranty. A common-law remedy for a contractual commitment voluntarily undertaken should not be regarded as a "requirement . . . imposed under State law" under § 5(b). Pp. 525-527. (d) Because § 5(b) pre-empts "prohibition[s]" as well as "requirement[s]," it supersedes petitioner's first fraudulent-misrepresentation theory, which is predicated on a state-law prohibition against advertising and promotional statements tending to minimize smoking's health hazards, and which alleges that respondents' advertising neutralized the effect of the federally mandated warning labels. However, the claims based on petitioner's second fraudulent-misrepresentation theory— which alleges intentional fraud both by false representation and concealment of material facts—are not pre-empted. The concealment allegations, insofar as they rely on a state-law duty to disclose material facts through channels of communication other than advertising and promotions, do not involve an obligation "with respect to" those activities within § 5(b)'s meaning. Moreover, those fraudulent-misrepresentation claims that do arise with respect to advertising and promotions are not predicated on a duty "based on smoking and health" but rather on a more general obligation—the duty not to deceive. Pp. 527-529. (e) Petitioner's claim alleging a conspiracy among respondents to mis-represent or conceal material facts concerning smoking's health hazards is not pre-empted, since the predicate duty not to conspire to commit fraud that underlies that claim is not a prohibition "based on smoking and health" as that § 5(b) phrase is properly construed. P. 530.
Justice Blackmun, joined by Justice Kennedy and Justice Souter, concluded that the modified language of § 5(b) in the 1969 Act does not clearly exhibit the necessary congressional intent to preempt state common-law damages actions, and therefore concurred in the judgment that certain of petitioner's failure-to-warn and fraudulent-misrepresentation claims, as well as his express warranty and conspiracy claims, are not pre-empted by that Act. Pp. 533-534.
Justice Scalia, joined by Justice Thomas, concluded that all of petitioner's common-law claims are pre-empted by the 1969 Act under ordinary principles of statutory construction, and therefore concurred in the judgment that certain of his post-1969 failure-to-warn claims
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