State to Argue U.S. Supreme Court Case Re: Internet Sale of Tobacco

November 27, 2007

Tomorrow, the United States Supreme Court will hear oral arguments in Rowe v. New Hampshire Motor Transport, a case 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.?

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,? (207) 626-8577