530
Opinion of Stevens, J.
Conspiracy to Misrepresent or Conceal Material Facts
Petitioner's final claim alleges a conspiracy among respondents to misrepresent or conceal material facts concerning the health hazards of smoking.28 The predicate duty underlying this claim is a duty not to conspire to commit fraud. For the reasons stated in our analysis of petitioner's intentional fraud claim, this duty is not pre-empted by § 5(b) for it is not a prohibition "based on smoking and health" as that phrase is properly construed. Accordingly, we conclude that the 1969 Act does not pre-empt petitioner's conspiracy claim.
VI
To summarize our holding: The 1965 Act did not pre-empt state-law damages actions; the 1969 Act pre-empts petitioner's claims based on a failure to warn and the neutralization
as based on smoking and health, but rather as based on the broader duty "to inform consumers of known risks." Post, at 543. Justice Scalia contends that, again as a matter of consistency, we should construe fraudulent-misrepresentation claims not as based on a general duty not to deceive but rather as "based on smoking and health." Admittedly, each of these positions has some conceptual attraction. However, our ambition here is not theoretical elegance, but rather a fair understanding of congressional purpose.
To analyze failure-to-warn claims at the highest level of generality (as Justice Blackmun would have us do) would render the 1969 amendments almost meaningless and would pay too little respect to Congress' substantial reworking of the Act. On the other hand, to analyze fraud claims at the lowest level of generality (as Justice Scalia would have us do) would conflict both with the background presumption against preemption and with legislative history that plainly expresses an intent to preserve the "police regulations" of the States. See n. 25, supra.
28 The District Court described the evidence of conspiracy as follows: "Evidence presented by [petitioner], particularly that contained in the documents of [respondents] themselves, indicates . . . that the industry of which these [respondents] were and are a part entered into a sophisticated conspiracy. The conspiracy was organized to refute, undermine, and neutralize information coming from the scientific and medical community . . . ." 683 F. Supp., at 1490.
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