Cite as: 505 U. S. 504 (1992)
Opinion of Blackmun, J.
of pre-emption from among the common-law claims implicated in this case, and in so doing reaches a result that Congress surely could not have intended.
The most obvious problem with the plurality's analysis is its frequent shift in the level of generality at which it examines the individual claims. For example, the plurality states that fraudulent-misrepresentation claims (at least those involving false statements of material fact in advertisements) are "predicated not on a duty 'based on smoking and health' but rather on a more general obligation—the duty not to deceive," and therefore are not pre-empted by § 5(b) of the 1969 Act. Ante, at 528-529. Yet failure-to-warn claims— which could just as easily be described as based on a "more general obligation" to inform consumers of known risks— implicitly are found to be "based on smoking and health" and are declared pre-empted. See ante, at 524. The plurality goes on to hold that express warranty claims are not preempted because the duty at issue is undertaken by the manufacturer and is not "imposed under State law." Ante, at 525. Yet, as the plurality itself must acknowledge, "the general duty not to breach warranties arises under state law," ibid. (emphasis added); absent the State's decision to penalize such behavior through the creation of a common-law damages action, no warranty claim would exist.
In short, I can perceive no principled basis for many of the plurality's asserted distinctions among the common-law claims, and I cannot believe that Congress intended to create such a hodgepodge of allowed and disallowed claims when it amended the pre-emption provision in 1970. Although the plurality acknowledges that § 5(b) fails to "indicate that any familiar subdivision of common-law claims is or is not preempted," ante, at 523, it ignores the simplest and most obvious explanation for the statutory silence: that Congress never intended to displace state common-law damages claims, much less to cull through them in the manner the plurality does today. I can only speculate as to the difficulty
543
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