CIKLIN, C.J.
In this Engle progeny case,
The defendant very broadly argues that, because Congress has expressly sanctioned the sale of cigarettes, and because the practical effect of the Engle progeny litigation is to establish that all cigarettes are inherently dangerous and defective, strict liability and negligence claims are implicitly preempted by federal law allowing the sale of cigarettes.
This court explained federal preemption in Liggett Group, Inc. v. Davis, 973 So.2d 467 (Fla. 4th DCA 2007), as follows:
Id. at 471 (internal citations and quotation marks omitted).
"[W]hether a state law claim is preempted is dependent on the exact nature of that particular claim." Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1193 (11th Cir.2004) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)). In Cipollone, the Supreme Court explained, "The central inquiry in each case is ... whether the legal duty that is the predicate of the common-law damages action constitutes a `requirement or prohibition based on smoking and health ... imposed under State law with respect to... advertising or promotion'...." Cipollone, 505 U.S. at 523-24, 112 S.Ct. 2608 (quoting 15 U.S.C. § 1334(b)). Cipollone addresses causes of action of failure to warn, breach of express warranty, fraudulent misrepresentation, and conspiracy to misrepresent or conceal material facts, and a plurality of the Court "found that state laws which required a showing that warnings on cigarettes should have been more clearly stated, were preempted, and the state law claims based on the manufacturer's practices of testing or research unrelated to advertising were not preempted." Davis, 973 So.2d at 471. Accordingly, not all tobacco claims are preempted, "only certain ones." Id. at 472.
Recently, in Graham v. R.J. Reynolds Tobacco Co., 782 F.3d 1261 (11th Cir.2015), the Eleventh Circuit held that Engle progeny strict liability and negligence claims are implicitly preempted by federal law. Id. at 1280. Rather than defining a legal duty or duties imposed by Florida case law with respect to strict liability and negligence claims pursuant to the test propounded in Cipollone, the Eleventh Circuit identifies "[t]hree aspects of that litigation [that] inform how we characterize the duty it has come to impose on cigarette manufacturers":
Id. at 1279-80. Graham concludes:
Id. at 1282.
We disagree with Graham, and we respectfully note what we believe to be flaws in its reasoning. First, Graham overstates the effect of the past ten years of Florida tobacco case law by equating it to a ban on cigarette sales. As one commentator notes, "tort verdicts (which are hardly uniform), do not always arise to a state law `standard'; sometimes they may only `motivate an optional decision' for a defendant to behave differently." Douglas J. McNamara, What Were They Smoking? Why the Graham Court was Wrong, LAW 360, May 14, 2015 (footnote omitted) (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 445, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005)). "The proper [preemption] inquiry calls for an examination of the elements of the common-law duty at issue, see Cipollone, 505 U.S. at 524, 112 S.Ct. 2608 (plurality opinion); it does not call for speculation as to whether a jury verdict will prompt the manufacturer to take any particular action (a question, in any event, that will depend on a variety of cost/benefit calculations best left to the manufacturer's accountants)." Bates, 544 U.S. at 445, 125 S.Ct. 1788.
Additionally, Graham suggests that state and presumably local governments cannot ban a product that Congress has
Furthermore, Graham relies in part on the 1965 Federal Cigarette Labeling and Advertising Act ("FCLAA"), codified as amended at 15 U.S.C. §§ 1331-1341, to conclude that Congress intended to preempt states from banning the sale of cigarettes. See Graham, 782 F.3d at 1277. In the "Congressional declaration of policy and purpose" of the FCLAA, Congress expressed its policy to ensure that "commerce and the national economy may be (A) protected to the maximum extent consistent with [the objective of adequately informing the public of the risks of smoking] and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health." 15 U.S.C. § 1331. It then imposed regulations for the labeling and advertising of cigarettes, and banned states from imposing any separate regulations on the same activities. We believe this only demonstrates an intent to prevent states from imposing differing laws on the labeling and advertising of cigarettes, which undoubtedly would have been cumbersome for cigarette companies to comply with, and would have in turn stymied interstate commerce of cigarettes. It does not, however, indicate an intent to preempt states from banning the sale of cigarettes, a state right traditionally reserved within a state's police powers, or from permitting state tort claims relating to the production and sale of cigarettes. See, e.g., Richardson v. R.J. Reynolds Tobacco Co., 578 F.Supp.2d 1073, 1077 (E.D.Wis.2008) (holding that the FCLAA did not implicitly preempt plaintiff's strict liability claim and explaining that "Congress clearly intended to `protect the national economy from the burden imposed by diverse, nonuniform, and confusing cigarette labeling and advertising regulations,' Cipollone, 505 U.S. at 514, 112 S.Ct. 2608, but did not clearly intend to extend broad immunity from common law liability to cigarette manufacturers.").
Graham similarly relies in part on language from the 2009 Family Smoking Prevention and Tobacco Control Act ("TCA"), 21 U.S.C. § 387, which grants the Food and Drug Administration ("FDA") authority to regulate cigarettes, but specifically prohibits the FDA from banning cigarettes. See Graham, 782 F.3d at 1278-79. However, it contains no such prohibition to prevent the states from banning cigarettes, if they so choose.
In fact, although the TCA expressly preempts states from regulating certain aspects of cigarette commerce such as labeling and manufacturing,
21 U.S.C. § 387p (2009) (emphasis added). These provisions of the TCA are curiously omitted from Graham.
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," we find no conflict between the applicable state and federal laws. Accordingly, the trial court did not err in rejecting the defendant's argument that negligence and strict liability claims are preempted by federal law.
Recognizing the Eleventh Circuit's decision to the contrary, however, we certify this latest Engle progeny defense as a question of great public importance:
Affirmed; question certified.
GERBER, J., and JOHNSON, LAURA, Associate Judge, concur.