554
Opinion of Scalia, J.
Jersey and many other States have such statutes already on the books. E. g., N. J. Stat. Ann. § 56:8-1 et seq. (West 1989); N. Y. Gen. Bus. Law § 349 et seq. (McKinney 1988 and Supp. 1992); Texas Bus. & Com. Code Ann. § 17.01 et seq. (1987 and Supp. 1992).
I would apply to all petitioner's claims what I have called a "proximate application" methodology for determining whether they invoke duties "based on smoking and health"— I would ask, that is, whether, whatever the source of the duty, it imposes an obligation in this case because of the effect of smoking upon health. On that basis, I would find petitioner's failure-to-warn and misrepresentation claims both pre-empted.
III
Finally, there is an additional flaw in the plurality's opinion, a systemic one that infects even its otherwise correct disposition of petitioner's post-1969 failure-to-warn claims. The opinion states that, since § 5(b) proscribes only "requirement[s] or prohibition[s] . . . 'with respect to . . . advertising or promotion,' " state-law claims premised on the failure to warn consumers "through channels of communication other than advertising or promotion" are not covered. Ante, at 528 (emphasis added); see ante, at 524. This preserves not only the (somewhat fanciful) claims based on duties having no relation to the advertising and promotion (one could imagine a law requiring manufacturers to disclose the health hazards of their products to a state public-health agency), but also claims based on duties that can be complied with by taking action either within the advertising and promotional realm or elsewhere. Thus, if—as appears to be the case in New Jersey—a State's common law requires manufacturers to advise consumers of their products' dangers, but the law is indifferent as to how that requirement is met (i. e., through "advertising or promotion" or otherwise), the plurality would apparently be unprepared to find pre-emption as long
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