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