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R.J. Reynolds Tobacco Co. v. Phil J. Marotta, as Personal Representative, Case No. 4D13-1703 (4th DCA)

In Marotta, the defendant tobacco company appealed a final judgment entered in favor of the plaintiff. The Fourth District affirmed on all issues, but wrote to address the defendant's argument that federal law implicitly preempts state law tort claims of strict liability and negligence based on the sale of cigarette. The Fourth District additionally certified the question of federal preemption to the Florida Supreme Court as one of great public importance.

The Fourth District explained federal preemption:

"The doctrine of conflict preemption prevents state laws which conflict with federal statutes from being applied. Conflict preemption occurs where a federal statute implicitly overrides state law either when the scope of a statute indicates that Congress intended federal law to occupy a field exclusively or when state law is in actual conflict with federal law. Conflict preemption turns on the identification of actual conflict and not an express statement of preemptive intent. If Congress gives express sanction to an activity, the states cannot declare that activity tortious."

The Fourth District noted that the Eleventh Circuit, in Graham v. R.J. Reynolds Tobacco Co., recently held that Engle progeny strict liability and negligence claims are implicitly preempted by federal law. The Fourth District, however, disagreed with the Eleventh Circuit's ruling. It found thatGraham "overstate[d] the effect of the past ten years of Florida tobacco case law by equating it to a ban on cigarette sales." In addition, "Graham suggests that state and presumably local governments cannot ban a product that Congress has chosen to regulate." The Fourth District, however, pointed out that states regularly ban products that are regulated by federal law, such as alcohol. Furthermore, the 1965 Federal Cigarette Labeling and Advertising Act, upon which Graham relies, only intended to prevent states from imposing differing laws on labeling and advertising of cigarettes, and did not intend to preempt states from banning the sale of cigarettes or permitting state tort claims relating to the production and sale of cigarettes.

"In sum, because Engle progeny cases do not support a conclusion that strict product liability claims amount to a ban on the sale of cigarettes, and because federal tobacco laws expressly preserve a state's ability to regulate tobacco in ways other than manufacturing and labeling while declining to 'modify or otherwise affect any action or the liability of any person under the product liability law of any State,' [the Fourth District found] no conflict between the applicable state and federal laws."

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