
USCA1 Opinion

	




                                For the First Circuit                                ____________________       No. 97-8022             PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO COMPANY,       BROWN & WILLIAMSON TOBACCO CORPORATION, AND LORILLARD TOBACCO COMPANY,                               Plaintiffs, Appellants,                                         v.            L. SCOTT HARSHBARGER, ATTORNEY GENERAL OF THE COMMONWEALTH OF          MASSACHUSETTS, AND DAVID H. MULLIGAN, MASSACHUSETTS COMMISSIONER                                  OF PUBLIC HEALTH,                               Defendants, Appellees.       No. 97-8023              UNITED STATES TOBACCO COMPANY, BROWN & WILLIAMSON TOBACCO         CORPORATION, CONWOOD COMPANY, L.P., NATIONAL TOBACCO COMPANY, L.P.,           THE PINKERTON TOBACCO COMPANY, AND SWISHER INTERNATIONAL, INC.                               Plaintiffs, Appellants,                                         v.            L. SCOTT HARSHBARGER, ATTORNEY GENERAL OF THE COMMONWEALTH OF          MASSACHUSETTS, AND DAVID H. MULLIGAN, MASSACHUSETTS COMMISSIONER                                  OF PUBLIC HEALTH,                               Defendants, Appellees.                                ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. George A. O'Toole, Jr., U.S. District Judge]                                ____________________                                       Before                               Torruella, Chief Judge,                           Campbell, Senior Circuit Judge,                              and Stahl, Circuit Judge.                                ____________________            Henry                    C.                        Dinger,                                P.C., with whom   Cerise                                                         Lim-Epstein,  Goodwin,       Procter & Hoar, LLP, Verne W. Vance, Jr., Foley, Hoag & Eliot, Herbert       Dym, E.                 Edward                        Bruce, David                                     H.                                         Remes, Jarrett                                                        A.                                                           Williams,  Jason                                                                            A.       Levine,  and                      Covington                                 &                                   Burling, were on brief for Philip Morris       appellants.            George                    J.                        Skelly, with whom   Thomas                                                   J.Dougherty,  Skadden,                                                                         Arps,       Slate,               Meagher                       &                         Flom                              LLP, A.                                       Hugh                                            Scott, Denise                                                          W.                                                             DeFranco, Choate,       Hall               &                 Stewart,  John                                 L.                                     Oberdorfer, Stuart                                                         M.                                                             Pape, G.                                                                       Kendrick       MacDowell, and                       Patton                               Boggs,                                      L.L.P., were on brief for United States       Tobacco Company appellants.            Rebecca                     P.                        McIntyre, Assistant Attorney General, with whom Thomas       A.             Barnico, Assistant Attorney General and     L.                                                            Scott                                                                   Harshbarger,       Attorney General, were on brief for appellees.            Carol                   J.                      Bennett,  James                                      P.                                          Jacobson, Ann                                                        Beimdiek                                                                  Kinsella, D.       Douglas                Blanke, Attorneys for State of Minnesota,   Hubert                                                                   H.                                                                      Humphrey       III, Attorney General for State of Minnesota,   Grant                                                               Woods, Attorney       General for State of Arizona,                                     Winston Bryant                                                  , Attorney General for State       of Arkansas,   Daniel                                E.                                    Lundgren, Attorney General for State of       California,  Richard                                Blumenthal, Attorney General for State of       Connecticut,  Robert                              A.                                  Butterworth, Attorney General for State of       Florida, Margery                          S.                             Bronster, Attorney General for State of Hawaii,       James                E.                   Ryan, Attorney General for State of Illinois,     Jeffrey                                                                             A.       Modisett, Attorney General for State of Indiana,    Thomas                                                                    J.                                                                        Miller,       Attorney General for State of Iowa,   J.                                                 Joseph                                                        Curran,                                                                 Jr., Attorney       General for State of Massachusetts,  Frank                                                   J.                                                      Kelley, Attorney General       for State of Michigan,   Mike                                        Moore, Attorney General for State of       Mississippi, Jeremiah                               W.                                  (Jay)                                        Nixon, Attorney General for State of       Missouri, Joseph                          P.                             Mazurek, Attorney General for State of Montana,       Frankie                  Sue                      Del                           Papa, Attorney General for State of Nevada,    Peter       Verniero, Attorney General for State of New Jersey,                                                           Tom Udall                                                                   , Attorney       General for State of New Mexico, Dennis C. Vacco, Attorney General for       State of New York, Heidi Heitkamp, Attorney General for State of North       Dakota, Betty                      D.                         Montgomery, Attorney General for State of Ohio,  W.A.       Drew             Edmondson, Attorney General for State of Oklahoma,   Hardy                                                                        Myers,       Attorney General for State of Oregon,    D.                                                      Michael                                                               Fisher, Attorney       General for State of Pennsylvania,                                          Jeffrey B. Pine                                                        , Attorney General for       State of Rhode Island,                              Mark Barnett                                         , Attorney General for State of South       Dakota, Dan                    Morales, Attorney General for State of Texas,  Jan                                                                       Graham,       Attorney General for State of Utah,  William                                                     Sorrell, Attorney General       for State of Vermont,                              Christine O. Gregoire                                                 , Attorney General for State       of Washington, Darrell                                V.                                   McGraw,                                           Jr., Attorney General for State of       West Virginia,                       James E. Doyle                                    , Attorney General for State of Wisconsin,       Louise H. Renne                      , City Attorney, City of San Francisco, CA,                                                                  Elizabeth D.       Laporte, Chief of Special Litigation, City of San Francisco, CA, and       Andrew Y.S. Cheng, Deputy City Attorney, City of San Francisco, CA, on       brief amici curiae.                                 ___________________                                   August 18, 1997                                 ___________________                      STAHL, Circuit Judge.  This appeal implicates the            constitutionality of a Massachusetts statute requiring            manufacturers of tobacco products to disclose the additives and            nicotine-yield ratings of their products to the state's public            health department.  See Mass. Gen. Laws ch. 94, S 307B (the            "Disclosure Act"). Plaintiffs-appellants, various            manufacturers of cigarette and smokeless tobacco products            (collectively, "the manufacturers"),   appeal the district            court's grant of summary judgment in favor of defendants-            appellees, the Attorney General of the Commonwealth of            Massachusetts and the Massachusetts Public Health Commissioner            (collectively, the "Commonwealth"). The district court ruled            that neither the Federal Cigarette Labeling and Advertising            Act, as amended (the "FCLAA"), 15 U.S.C. SS 1331-41, nor the            Comprehensive Smokeless Tobacco Health Education Act of 1986            (the "Smokeless Tobacco Act"), 15 U.S.C. SS 4401-08, preempts            enforcement of the Disclosure Act. We affirm the district                                            1.  The specific plaintiffs-appellants are Philip Morris            Incorporated, R.J. Reynolds Tobacco Company, Brown & Williamson            Tobacco Corporation, and Lorillard Tobacco Company ("the            cigarette manufacturers") [case no. 97-8022], and United States            Tobacco Company, Brown & Williamson Tobacco Corporation,            Conwood Company, L.P., National Tobacco Company, L.P., The            Pinkerton Tobacco Company, and Swisher International, Inc.            ("the smokeless tobacco manufacturers") [case no. 97-8023].            2.  The specific defendants-appellees are L. Scott Harshbarger,            Attorney General of the Commonwealth of Massachusetts, and            David H. Mulligan, Massachusetts Commissioner of Public Health.                                          -4-                                          4            court's ruling, and hold that the Massachusetts Disclosure Act            survives the manufacturers' preemption challenge.                                         I.                                  Prior Proceedings                      On August 2, 1996, the day Massachusetts enacted the            Disclosure Act, the cigarette manufacturers and smokeless            tobacco manufacturers separately filed complaints in the            district court claiming that the FCLAA and the Smokeless            Tobacco Act preempt the state law by operation of the Supremacy            Clause of the U.S. Constitution. Their complaints also allege            that the Disclosure Act violates the Constitution's Commerce            Clause, Full Faith and Credit Clause, Fourteenth Amendment Due            Process Clause, and Takings Clause. The parties cross-moved            for summary judgment in each case on the preemption claim            only. After denying the manufacturers' motions and granting            the Commonwealth's motions, the district court amended its            orders to certify the rulings for immediate appeal.   See 28            U.S.C. S 1292(b). We accepted interlocutory review of the            orders. This appeal, therefore, presents only the preemption            issue.                                            3.  Because of the Disclosure Act's extended effective date,            now November 1, 1997, the district court deferred consideration            of the manufacturers' contemporaneously filed preliminary            injunction motion.                                         -5-                                          5                                         II.                                 Standard of Review                      We review the district court's summary judgment            ruling de novo.  Grenier v. Vermont Log Bldgs., Inc., 96 F.3d            559, 562 (1st Cir. 1996). The ultimate determination whether            federal law preempts the Massachusetts Disclosure Act presents            a legal question subject to plenary review. See                                                             United States            v. Rhode                      Island                             Insurers'                                       Insolvency                                                   Fund, 80 F.3d 616, 619            (1st Cir. 1996).                                        III.                                     Background                      We begin our discussion with a review of the            Massachusetts Disclosure Act and the allegedly preempting            federal laws, the FCLAA and the Smokeless Tobacco Act. In so            doing, we consider the statutes' respective texts along with            the relevant historical and legislative contexts in which they            were enacted. See                               Wood v.                                       General Motors Corp.                                                          , 865 F.2d 395,            404 (1st Cir. 1988) ("In determining questions of preemption,            a court 'must examine the [act's] language against the                                            4.  When reviewing a district court's ruling on cross-motions            for summary judgment, normally we consider the record evidence            with respect to each motion separately "to determine whether            either of the parties deserves judgment as a matter of law on            facts that are not disputed."                                          Wightman v.                                                      Springfield Terminal            Ry. Co.                  , 100 F.3d 228, 230 (1st Cir. 1996).                                                        See 10A Charles A.            Wright, et al.,                            Federal Practice and Procedure                                                         , S 2720 (1983).            Here, however, because no underlying issue of material fact            exists with respect to the legal preemption issue, we need not            consider each motion separately.                                         -6-                                          6            background of its legislative history and historical context.'"            (quoting California                                 Federal                                         Sav.                                              &                                                Loan                                                     Ass'n v. Guerra, 479            U.S. 272, 284 (1987))). Next, we set forth controlling            preemption principles. Finally, we turn to the question            whether the federal statutes in question either expressly or            impliedly preempt the state statute. We note here that the            Supreme Court's splintered decision in  Cipollone v.  Liggett            Group,                    Inc., 505 U.S. 504 (1992) heavily influences, and in            part controls, much of our analysis.            A.  The Disclosure Act                      The Massachusetts Disclosure Act, the first state law            of its kind, requires "any manufacturer of cigarettes, snuff or            chewing tobacco sold in the commonwealth" to provide the            Massachusetts Department of Public Health with a yearly report            that lists for each brand of product (1) any added constituents            "in descending order according to weight, measure, or numerical            count," and (2) nicotine yield ratings "which shall accurately            predict nicotine intake for average consumers." Mass. Gen.            Laws ch. 94, S 307B. The Disclosure Act permits public access            to the information reported upon an appropriate finding by the            department. Specifically, the Disclosure Act provides:                      The nicotine yield ratings so provided,                      and any other such information in the                      annual reports with respect to which the                      department determines that there is a                                            5.  See Appendix A for the full text of the Disclosure Act,            Mass. Gen. Laws ch. 94, S 307B.                                         -7-                                          7                      reasonable scientific basis for concluding                      that the availability of such information                      could reduce risks to public health, shall                      be public records.            Id.                      The public health department may not reveal the            information, however, "unless and until the attorney general            advises that such disclosure would not constitute an            unconstitutional taking."     Id. Despite the apparent            limitations on the public health department's ability to            disclose reported information, the record evidence strongly            indicates that Massachusetts officials intend to publicize the            information. At oral argument before us, the Commonwealth            avoided direct questions on this issue, asserting that the            department's potential publication of the information was            irrelevant for the purposes of preemption analysis. For the            purposes of this case, we assume that the department will make            the information publicly available at the first legal and            practical opportunity.                      By all indications, the purpose of the Disclosure Act            is to further the public health and education in the use of            tobacco products. Most tellingly, the law prefaces its            requirements with the phrase, "For the purpose of protecting            the public health." Mass. Gen. Laws. ch. 94, S 307B. In            addition, a press release from the Massachusetts Executive            Department released the same day the law was enacted describes            the Disclosure Act as a "consumer protection law" intended to                                         -8-                                          8            foster educated decision-making on the part of the consuming            public when choosing specific tobacco products and brands.            B.  The Federal Laws                      1.  FCLAA                      In 1964, the United States Surgeon General's advisory            committee issued a report that officially acknowledged the            health hazards of cigarette smoking.  See Cipollone, 505 U.S.            at 513. In response, the Federal Trade Commission, as well as            several states, moved to impose various warning requirements in            the advertising and labeling of cigarettes.    Id.; see  also            Palmer v.                      Liggett Group, Inc.                                        , 825 F.2d 620, 622 n.1 (1st Cir.            1987) (noting example of New York State's warning label            requirement). In light of "the potential maze of conflicting            state regulations" on the subject,                                               Palmer, 825 F.2d at 622, and            after "vigorous lobbying by all forms of interested groups and            business,"                       id. at 623, Congress passed the first version of the            FCLAA in 1965 (the "1965 Act").                      Congress expressly declared its "policy and purpose"            in passing the 1965 Act:                      It is the policy of the Congress, and the                      purpose of this chapter, to establish a                      comprehensive Federal program to deal with                      cigarette labeling and advertising with                      respect to any relationship between                      smoking and health, whereby --                           (1) the public may be adequately                      informed that cigarette smoking may be                      hazardous to health by inclusion of a                      warning to that effect on each package of                      cigarettes; and                                         -9-                                          9                           (2) commerce and the national                      economy may be (A) protected to the                      maximum extent consistent with this                      declared policy 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. S 1331.                      The  Cipollone majority determined that the            congressional purposes expressed in this provision were as            follows:                      (1) adequately informing the public that                      cigarette smoking may be hazardous to                      health, and (2) protecting the national                      economy from the burden imposed by                      diverse, nonuniform, and confusing                      cigarette labeling and advertising                      regulations.            505 U.S. at 514. The Court explained that the 1965 Act            contained specific provisions "[i]n furtherance of" these two            congressional purposes. Id. To further the first purpose, the            1965 Act mandated a specific warning label on each cigarette            package: "CAUTION: CIGARETTE SMOKING MAY BE HAZARDOUS TO YOUR            HEALTH."  Id.  To further the second purpose,   see id., the            statute included a preemption provision, which, in part,            prohibited the requirement of any "statement relating to            smoking and health . . . on any cigarette package" other than            the required warning. 15 U.S.C. S 1334(a). The 1965 Act's            preemption clause further provided:                                            6.  At the time, the warning was not required in cigarette            advertisements.                                        -10-                                         10                      (b) No statement relating to smoking and                      health shall be required in the                      advertising of any cigarettes the packages                      of which are labeled in conformity with                      the provisions of this Act.            15 U.S.C. S 1334(b) (1966),  amended by 15 U.S.C. S 1334(b)            (1969).                      By its own terms, the 1965 Act's provisions            pertaining to advertising were to terminate on July 1, 1969.            See Cipollone, 505 U.S. at 514. As that date approached,            various federal agencies and states proposed new and differing            cigarette advertising regulations.  See id. at 514-15. Faced            with these various initiatives, Congress amended the 1965 Act            by enacting the Public Health Cigarette Smoking Act of 1969            (the "1969 Act"). The 1969 Act strengthened the wording of the            required warning label: "WARNING: THE SURGEON GENERAL HAS            DETERMINED THAT CIGARETTE SMOKING IS DANGEROUS TO YOUR HEALTH."            15 U.S.C. S 1333 (1969). The 1969 Act also prohibited            cigarette advertising on television and radio and any other            "medium of electronic communication subject to the jurisdiction            of the Federal Communications Commission." 15 U.S.C. S 1335.            Relatedly, the 1969 Act replaced subsection (b) of the 1965                                            7.  For example, the Federal Communications Commission            announced its intention to consider a proposed rule that would            ban radio and television cigarette commercials, while the            California Senate "passed a total ban on both print and            electronic cigarette advertisements."  Cipollone, 505 U.S. at            515 & n.11.                                        -11-                                         11            Act's preemption provision with the following language, which            remains unmodified to this day:                      (b) No requirement or prohibition based                      on smoking and health shall be imposed                      under State law with respect to the                      advertising or promotion of any cigarettes                      the packages of which are labeled in                      conformity with the provisions of this                      chapter.            15 U.S.C. S 1334(b).                      The Senate Report accompanying the 1969 Act explained            that the revised preemption provision was necessary "to avoid            the chaos created by a multiplicity of conflicting [cigarette            advertising] regulations." S. Rep. No. 91-566 (1970),            reprinted in 1970 U.S.C.C.A.N. 2652, 2663. Senate Report 566            further explained:                      The State preemption of regulation or                      prohibition with respect to cigarette                      advertising is narrowly phrased to preempt                      only State action based on smoking and                      health. It would in no way affect the                      power of any State or political                      subdivision of any State with respect to                      the taxation or the sale of cigarettes to                      minors, or the prohibition of smoking in                      public buildings, or similar police                      regulations. It is limited entirely to                      State or local requirements or                      prohibitions in the advertising of                      cigarettes.            Id.                                            8.  In part because the new preemption provision banned            restrictions imposed only "under State law," in 1972 the            Federal Trade Commission extended the warning requirements to            print advertisements, as well as package labels.          See            Cipollone, 505 U.S. at 515.                                        -12-                                         12                      After thirteen years of scientific research following            the enactment of the 1969 Act, Congress further amended the            FCLAA in 1984.    See H.R. Rep. No. 98-805, at 12 (1984),            reprinted                         in 1984 U.S.C.C.A.N. 3718, 3725. Renewed            congressional action in this area was in part prompted by            Surgeon General reports identifying cigarette smoking as a            significant risk factor in certain health problems.  See  id.            (citing various reports). In light of the Surgeon General's            findings and testimony before congressional committees on the            adverse health effects of smoking, Congress passed the            Comprehensive Smoking Education Act of 1984 (the "CSEA").            House Report 805 states that the CSEA's purpose was "to assist            the public to make an informed decision about whether or not to            smoke" "[b]y updating the cigarette warning, by giving            visibility and emphasis to smoking research and educational            activities at the Federal level, and by working closer with the            private voluntary health section."  Id.                      Specifically, the CSEA amended the FCLAA by            establishing a new warning system employing four different            smoking and health messages that would alternate quarterly on            both cigarette packages and cigarette advertisements.  See 15            U.S.C. S 1333. To reflect the new multiple-warning system,                                            9.  Specifically, the new required warnings, all preceded by            the phrase "SURGEON GENERAL'S WARNING," are as follows:                      Smoking Causes Lung Cancer, Heart Disease,                      Emphysema, And May Complicate Pregnancy.                                        -13-                                         13            Congress amended the language in the statute's purpose            provision from "a warning . . . on each package of cigarettes            [that] cigarette smoking may be hazardous to health" to            "warning notices on each package of cigarettes and in each            advertisement of cigarettes [to inform the public] about any            adverse health effects of cigarette smoking." S 1331(1);  see            also H.R. Rep. No. 98-805, at 21, 1984 U.S.C.C.A.N. at 3734.                      Significantly, the CSEA inserted an ingredient            reporting provision that requires cigarette manufacturers to            "annually provide the Secretary [of Health and Human Services]            with a list of the ingredients added to tobacco in the            manufacture of cigarettes which does not identify the company            which uses the ingredients or the brand of cigarettes which            contain the ingredients." S 1335a(a). The provision permits,            but does not mandate, "[a] person or group of persons required            to provide [the list] . . . [to] designate an individual or            entity to provide the list."  Id. In other words, to satisfy            their respective reporting obligations, the manufacturers at            their option may submit ingredient lists to a designated agent                                                      Quitting Smoking Now Greatly Reduces                      Serious Risks to Your Health.                      Smoking by Pregnant Women May Result in                      Fetal Injury, Premature Birth, and Low                      Birth Weight.                      Cigarette Smoke Contains Carbon Monoxide.            15 U.S.C. S 1333(a).                                        -14-                                         14            who, in turn, may transmit the information aggregately to the            Secretary. Based on the information provided, the Secretary            must transmit a report to Congress, "[a]t such times as the            Secretary considers appropriate," on research activities            regarding the health effects or risks of cigarette additives            and "any other information which the Secretary determines to be            in the public interest." S 1335a(b)(1).                      The ingredient reporting provision sets forth            comprehensive procedures for the Secretary's handling of the            information provided. Specifically, S 1335(b)(2)(A) provides:                      Any information provided to the Secretary                      under subsection (a) of this section shall                      be treated as trade secret or confidential                      information subject to section 552(b)(4)                      of Title 5 [providing a trade secret                      exemption for disclosure under the Freedom                      of Information Act] and section 1905 of                      Title 18 [criminalizing disclosure of                      confidential information by federal                      officers or employees] and shall not be                      revealed, except as provided in paragraph                      (1) [respecting the Secretary's report to                      Congress], to any person other than those                      authorized by the Secretary in carrying                      out their official duties under this                      section.                                            10.  The legislative history indicates that the ingredient            reporting provision was intended to supply statutory authority            to require the manufacturers to disclose such information and            to "supercede, in all respects, a voluntary agreement entered            into between the Department of [Health and Human Services] and            the tobacco industry in June, 1982." H.R. Rep. No. 98-805, at            21, 1984 U.S.C.C.A.N. at 3734. The House Report further            explains that the provisions "would permit the federal            government to initiate the toxicologic research necessary to            measure any health risk posed by the addition of additives and            other ingredients to cigarettes during the manufacturing            process."  Id.                                        -15-                                         15            Despite the above-quoted section, a different section directs            that the Secretary may not withhold the ingredient information            from a requesting congressional committee or subcommittee.                                                                       See            S 1335a(b)(2)(B).  When faced with such a request, the            Secretary must make the list available "and shall, at the same            time, notify in writing the person who provided the list of            such request."  Id.                      Finally, the ingredient reporting provision requires            the Secretary to ensure the confidentiality of the provided            information through specified procedures, including (1) a            designated custodian of the information who, when the            information is not in use, "shall store it in a locked cabinet            or file" and shall keep a record of those inspecting or using            the information, S 1335a(b)(2)(C), and (2) a requirement that            persons "permitted access to the information shall be            instructed in writing not to disclose the information to anyone            who is not entitled to have access to the information." Id.                                            11.  The extent to which members of Congress are bound, if at            all, by the disclosure prohibitions is unclear.            12.  It appears, however, that the Secretary's efforts to            notify the "person who provided the list" may be made more            difficult by S 1335a(a)'s option for such persons to provide            the list anonymously through a third individual or entity.            13.  In addition to amending the FCLAA, the CSEA also directed            the Secretary to "establish and carry out a program to inform            the public of any dangers to human health presented by            cigarette smoking." 15 U.S.C. S 1341. Pursuant to that            program, the Secretary must,                                         inter                                              alia, coordinate research on            smoking and health and disseminate pertinent information to the            public.  See  id. at S 1341(a). To carry out some of the                                        -16-                                         16                      2.  Smokeless Tobacco Act                      By the mid-1980's, Congress became concerned that the            federal government's activities regarding the health hazards of            cigarette smoking had no parallel with respect to smokeless            tobacco products such as chewing tobacco and snuff.   See S.            Rep. No. 99-209, at 3-4 (1986),                                            reprinted                                                      in 1986 U.S.C.C.A.N.            7, 9-10. According to the Senate Report, the almost-forgotten            smokeless tobacco industry had staged a recent resurgence, and            its products had become popular among youth who apparently            considered such products a safe alternative to cigarette            smoking.  See id. Further evidence suggested that smokeless            tobacco products contained "significant levels of nicotine" and            were linked with serious health problems, including oral            cancer. S. Rep. No. 99-209, at 3, 1986 U.S.C.C.A.N. at 9.            These factors led to regulatory action on various fronts            regarding warning requirements. For example, a Massachusetts            executive order required warning labels on the packages and in            the advertisements of smokeless tobacco products.         Id.            Additionally, prominent health organizations called for            legislation requiring warnings, and the FTC enlisted the            Surgeon General's help in considering a petition seeking                                            program's purposes, the CSEA established an Interagency            Committee on Smoking and Health.  See id. at S 1341(b). The            Secretary also must transmit specified reports to Congress            regarding efforts made to inform the public of the health            hazards of smoking and other information.        See  id. at            S 1341(c).                                        -17-                                         17            warning label requirements.  See S. Rep. No. 99-209, at 4-5,            1986 U.S.C.C.A.N. at 10-11.                      In response to such regulatory efforts, Congress            passed the Comprehensive Smokeless Tobacco Health Education Act            of 1986 (the "Smokeless Tobacco Act"). The Senate Report            explains that the Act, "for the most part, simply extends the            provisions of . . . the Comprehensive Smoking Education Act of            1984, to include smokeless tobacco products." S. Rep. No. 99-            209, at 5, 1986 U.S.C.C.A.N. at 11. Thus, the Smokeless            Tobacco Act contains features similar, but not identical, to            the FCLAA as amended by the CSEA.                      Like the CSEA, the Smokeless Tobacco Act calls for            the Secretary of Health and Human Services to "establish and            carry out a program to inform the public of any dangers to            human health resulting from the use of smokeless tobacco            products." 15 U.S.C. S 4401. The statute bans the advertising            of smokeless tobacco on radio and television,  see 15 U.S.C.            S 4402(f), and establishes a rotating warning requirement for            package labels and advertising, with specific warnings            regarding the potential adverse health effects of smokeless            tobacco products.  See S 4402.                                            14.  The specific texts of the alternative warnings, all            preceded by the word "WARNING," read:                      THIS PRODUCT MAY CAUSE MOUTH CANCER.                      THIS PRODUCT MAY CAUSE GUM DISEASE AND                      TOOTH LOSS.                                        -18-                                         18                      Congress included in the Smokeless Tobacco Act an            express preemption provision which states, in pertinent part:                           No statement relating to the use                           of smokeless tobacco products                           and health, other than the                           statements required by [this                           act], shall be required by any                           State or local statute or                           regulation to be included on any                           package or in any advertisement                           . . . of a smokeless tobacco                           product.            15 U.S.C. S 4406(b). Unlike the FCLAA, the Smokeless Tobacco            Act contains a "savings clause," which provides: "Nothing in            this chapter shall relieve any person from liability at common            law or under State statutory law to any other person." 15            U.S.C. S 4406(c).                        The Smokeless Tobacco Act similarly provides for            anonymous and aggregate ingredient reporting to the Secretary                                                      THIS PRODUCT IS NOT A SAFE ALTERNATIVE TO                      CIGARETTES.            15 U.S.C. S 4402(a)(1).            15.  Additionally, the Smokeless Tobacco Act specifically            precludes any   federal                                       agency from requiring any such            statements.  See 15 U.S.C. S 4406(a).            16.  Senate Report 209 explains that "the Committee [on Labor            and Human Resources" wants to emphasize that by including            provisions in [the Act] which require health warnings on            packages and advertisements for smokeless tobacco products, and            by preempting State and local laws requiring additional health            warnings, it does not intend to preempt a State's ability to            control the promotion or advertising of tobacco products and            does not intend to preempt product liability suits in State or            Federal courts based on failure to warn." S. Rep. No. 99-209,            at 14, 1986 U.S.C.C.A.N. at 13.                                        -19-                                         19            of Health and Human Services. S 4403(a).   Unlike the FCLAA,            however, the Smokeless Tobacco Act also requires smokeless            tobacco manufacturers to specify the nicotine quantity            contained in each product.  Id. The statute's provisions for            the Secretary's handling of the information are essentially            identical to those in the FCLAA, except for the absence of a            cross reference to 18 U.S.C. S 1905, which criminalizes            unauthorized disclosure of confidential information.  Compare            15 U.S.C. S 1335(b)(2)(A) with 15 U.S.C. S 4403(b)(2). The            statute also requires the Secretary to transmit informative and            advisory reports to Congress.  See 15 U.S.C. S 4407.            C.  Preemption Principles                      Having reviewed the federal and state statutes at            issue in this case, we now consider the preemption principles            that control our analysis of the question whether federal law            either explicitly or impliedly preempts the challenged state            law. We begin by noting that the health and safety of each            state's citizens "are primarily, and historically, matters of            local concern."   Medtronic v.  Lohr, 116 S. Ct. 2240, 2245            (1996). Accordingly, "the States traditionally have had great            latitude under their police powers to legislate as to the                                            17.  According to the Senate Report, the Smokeless Act's            ingredient reporting provision is "very similar" to that in the            CSEA and "is included to further the accumulation of knowledge            about the health risks of smokeless tobacco use, particularly            the possible hazards of substances added to tobacco to enhance            flavor and for other purposes." S. Rep. No. 99-209, at 14,            1986 U.S.C.C.A.N. at 13.                                        -20-                                         20            protection of the lives, limbs, health, comfort and quiet of            all persons."  Id. (internal quotation marks, citations, and            alterations omitted). The Massachusetts Disclosure Act            comfortably falls within the "health and safety" realm of            traditional state police powers.       Cf.  Wisconsin  Public            Intervenor v. Mortier, 501 U.S. 597, 605 (1991) (indicating            that regulation of hazardous pesticides are matters of the            states' "historic police powers"); Tart v. Massachusetts, 949            F.2d 490, 501 (1st Cir. 1991) (confirming state's "police            power" to regulate the transshipment of raw fish).                      Nevertheless, Article VI of the United States            Constitution provides that federal law "shall be the supreme            Law of the Land; . . . any Thing in the Constitution or Laws of            any State to the Contrary notwithstanding." U.S. Const. Art.            VI, cl. 2. As a result, "any state law, however clearly within            a State's acknowledged power, which interferes with or is            contrary to federal law, must yield."  Gade v. National Solid            Wastes Mgmt. Ass'n                             , 505 U.S. 88, 108 (1992) (internal quotation            marks and citations omitted). Thus, in this case, we must            determine whether the Disclosure Act sufficiently interferes            with, and therefore must yield either to the FCLAA or the            Smokeless Tobacco Act, or both.                      In any preemption analysis, "[t]he purpose of            Congress is the ultimate touchstone."  Ingersoll-Rand                                                                   Co. v.            McClendon, 498 U.S. 133, 138 (1990) (internal quotation marks                                        -21-                                         21            and citations omitted). The Supreme Court recently framed the            crucial inquiry as follows: "Did Congress, in enacting the            Federal Statute, intend to exercise its constitutionally            delegated authority to set aside the laws of a State?"                                                                   Barnett            Bank v. Nelson, 116 S. Ct. 1103, 1107 (1996). To discern            Congress' intent, "we examine the explicit statutory language            and the structure and purpose of the statute." Ingersoll-Rand            Co., 498 U.S. at 138.                      One method by which Congress may evince preemptive            intent is through explicit preemption language.  See Jones v.            Rath Packing Co.                           , 430 U.S. 519, 525 (1977). Although Congress            need not employ express preemption language to communicate such            intent,                    see                        International Paper Co.                                               v.                                                  Ouellette, 479 U.S. 481,            492 (1987), when Congress so chooses, our task in divining its            intent with respect to the issue at hand may be "an easy one,"            English v. General Elec. Co., 496 U.S. 72, 79 (1990).                      "More often, explicit pre-emption language does not            appear, or does not directly answer the question. In that            event, courts must consider whether the federal statute's            'structure and purpose,' or nonspecific statutory language,            nonetheless reveal a clear, but implicit, pre-emptive intent."            Barnett Bank                       , 116 S. Ct. 1108 (quoting                                                  Jones, 430 U.S. at 525).            Thus, for example, state law is impliedly preempted to the            extent it "actually conflicts" with federal law.          See            Cipollone, 505 U.S. at 516. Actual conflict occurs where                                        -22-                                         22            compliance with both state and federal law is a "physical            impossibility," Florida Lime & Avocado Growers, Inc. v. Paul,            373 U.S. 132, 143 (1963), or where state law "stands as an            obstacle to the accomplishment and execution of the full            purposes and objectives of Congress,"                                                  Hines v.                                                           Davidowitz, 312            U.S. 52, 67 (1941). Additionally, the pervasiveness of a            federal scheme, the dominance of the federal interest, or the            federal goals and obligations may reasonably permit an            inference that Congress intended a federal law to "occupy a            field" of commerce exclusively, disallowing concurrent state            operation or supplementation even where the state law does not            otherwise "conflict" with federal law.  See Rice v. Santa                                                                        Fe            Elevator Corp., 331 U.S. 218, 230 (1947).                      Finally, there exists an assumption that federal law            does not supersede a state's historic police powers "'unless            that [is] the clear and manifest purpose of Congress.'"            Cipollone, 505 U.S. at 516 (quoting                                               Rice, 331 U.S. at 230);                                                                       see            Hillsborough                          County v. Automated                                              Medical                                                      Labs, 471 U.S. 707,                                            18.  The preemption framework described, while providing a            useful backdrop for our analysis, does not reflect "rigidly            distinct" preemption categories. English, 496 U.S. at 79 n.5.            For example, "field pre-emption may be understood as a species            of conflict pre-emption: A state law that falls within a pre-            empted field conflicts with Congress' intent (either express or            plainly implied) to exclude state regulation."  Id.  See also            Hines, 312 U.S. at 67 (stating that "none of these expressions            provides an infallible constitutional test or an exclusive            constitutional yardstick");  Palmer, 825 F.2d 620, 625-26            (describing preemption labels as "[not] necessarily helpful"            and looking to Congress' intent and the effect of state law on            the federal scheme).                                        -23-                                         23            715 (1985) (noting "presumption that state or local regulation            of matters related to health and safety is not invalidated            under the Supremacy Clause");   see  also Buono v.   NYSA-ILA            Medical                     &                       Clinical                                Svcs.                                      Fund, 117 S. Ct. 1747, 1751 (1997).            The "health and safety" presumption applies in both express and            implied preemption analyses.    See  Greenwood                                                             Trust                                                                    Co. v.            Commonwealth, 971 F.2d 818, 823 (1st Cir. 1992) ("Even federal            statutes that contain express preemption clauses must be viewed            through the prism of [the] assumption.");                                                     see                                                         also                                                              Vango Media,            Inc. v.                    City of New York                                   , 34 F.3d 68, 72 (2d Cir. 1994) (noting            that presumption applies "[w]hether preemption under the            Supremacy Clause be explicit, or implied under field            preemption, or under conflict preemption") (involving            preemptive effect of FCLAA over city ordinance respecting            tobacco-product advertising).  The Disclosure Act, being an                                            19.  In                    Cipollone, a majority of the Supreme Court employed the            presumption in analyzing and construing the 1965 Act's express            preemption provision.   See 505 U.S. at 518. In    Wilson v.            Bradlees of New Eng., 96 F.3d 552, 557 (1st Cir. 1996), cert.            denied, 117 S. Ct. 1083 (1997), however, we questioned the            force of the presumption "in the construction of express            preemption clauses" in view of the Justices' apparently            differing opinions on the subject in its post-      Cipollone            decision, Medtronic v.  Lohr.   Compare 116 S. Ct. at 2250            (plurality confirming the presumption as "consistent with both            federalism concerns and the historic primacy of state            regulation of matters of health and safety");                                                          with                                                               id. at 2263            (four Justices, concurring in part and dissenting in part,            employing an analysis suggesting that normal statutory            construction principles apply when construing express            preemption clause). Just last Term, however, the Supreme Court            reaffirmed the applicability of the presumption in interpreting            even an expansive preemption clause.    See California                                                                     Labor            Stds. Enforcement v. Dillingham Constr., 117 S. Ct. 832, 838,                                        -24-                                         24            exercise of the Commonwealth's police powers to protect the            health and safety of her citizens, benefits from the            presumption against preemption.                      While these principles are readily enough stated,            their application in practice can be rather difficult because            each preemption scenario necessarily involves a unique            intersection of federal and state law. See                                                        Hines, 312 U.S. at            67 (explaining that, with respect to preemption analysis, there            is no "rigid formula or rule which can be used as a universal            pattern to determine the meaning and purpose of every act of            Congress"). Thus, our task requires us to scrutinize the            relevant statutory language, in light of Congress' evident            purpose and pertinent case law, to determine whether Congress            intended to preempt state laws such as the Disclosure Act.                                         IV.                                      Analysis            A.  Express Preemption                      Because Congress included express preemption language            in both the FCLAA and the Smokeless Tobacco Act, "our initial            concern is with express preemption and with the reach of the            clause[s] in question." Wilson v.                                               Bradlees of New Eng., Inc.                                                                        ,            96 F.3d 552, 554 (1st Cir. 1996),                                             cert.                                                   denied, 117 S. Ct. 1083            (1997). In this analysis, we compare the Disclosure Act with                                            842 (1997) (unanimous decision) (applying presumption in            interpretation of broad preemption language in the Employee            Retirement Income Security Act of 1974).                                        -25-                                         25            the language of the preemption clauses and cases interpreting            it to determine whether the state law falls within the intended            preemptive scope.  See Grenier, 96 F.3d at 562. We discuss            each statute in turn.                      1.  FCLAA                      Because the Disclosure Act does not require a            "statement relating to smoking and health . . .       on                                                                        any            cigarette                       package," 15 U.S.C. S 1334(a) (emphasis added), we            are concerned only with S 1334(b), which provides:                      No requirement or prohibition based on                      smoking and health shall be imposed under                      State law with respect to the advertising                      or promotion of any cigarettes the                      packages of which are labeled in                      conformity with the provisions of this                      chapter.            15 U.S.C. S 1334(b).                           a.  Cipollone                      We begin with    Cipollone, which concerned the            viability of state common-law damages actions against cigarette            manufacturers for injuries stemming from the lung-cancer death            of Rose Cipollone.    See 505 U.S. 504 (1992). The Court            analyzed the statutory preemption language of both the 1965 and            1969 Acts, but because the plaintiffs' claims arose before            1984, the Court did not consider the CSEA's potential effect on            those claims.  See id. at 508. In the Court's mixed ruling,            Justice Stevens' opinion spoke for a majority of the Court in            certain sections, but largely represented the views of only a                                        -26-                                         26            plurality of the Court. The ruling also produced two separate            opinions concurring in part and dissenting in part.            Principally, the Justices disagreed over whether or not state            common-law damages actions, as opposed to positive enactments            by state legislatures or administrative bodies, fell within the            scope of the express preemption provisions in the 1965 and 1969            Acts. While a majority of the Court held that the 1965 Act did            not preempt state common-law damages actions, see  Cipollone,            505 U.S. at 518-19, a plurality found that the 1969 Act's            "broader" preemption language did encompass some common law            claims, see id. at 520-21.                      To determine whether or not a particular common law            claim fell within the express preemption clause, the plurality            formulated the following "central inquiry": "we ask 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 and promotion,' giving that clause a fair            but narrow reading." Id. at 524. According to the plurality,                                            20.  We acknowledge that the  Cipollone plurality's "narrow"            reading of the preemption provision is not without disagreement            by other members of the Court.  See 505 U.S. at 544 (Scalia,            J., concurring in part, dissenting in part) (stating that            preemption analysis requires the Court "to interpret Congress's            decrees of pre-emption neither narrowly nor broadly, but in            accordance with their apparent meaning");                                                      see                                                          also                                                               id. at 545,            548 (Scalia, J., concurring in part, dissenting in part)            (explaining that, given the express preemption provision, "our            responsibility is to apply to the text ordinary principles of            statutory construction. . . . When [the ordinary meaning of the                                        -27-                                         27            "each phrase within that clause limits the universe of            common-law claims pre-empted by the statute." Id. In  Lohr, a            Court majority approved a similar approach.  See Lohr, 116 S.            Ct. at 2257 (parsing language in express preemption clause to            determine federal statute's preemptive scope);   id. at 2258            (looking to "[t]he legal duty that is the predicate for            [plaintiff's common-law state damages claim]" to determine            whether or not it was preempted by federal requirements).                      On this basis, we apply a modified version of the            test in this case and ask whether or not the "predicate legal            duty" created by the Disclosure Act constitutes a (1) a            "requirement or prohibition . . . imposed under State law," (2)            "based on smoking and health," (3) "with respect to the            advertising or promotion of any [properly labeled] cigarettes."            S 1334(b).                                            statute's language] suggests that the pre-emption provision was            intended to sweep broadly, our construction must sweep broadly            as well. . . . And when it bespeaks a narrow scope of            pre-emption, so must our judgment." (citation omitted));  cf.            Laurence H. Tribe, American Constitutional Law S 6-29, p. 510            (2d ed.) (1988) (indicating that preemption analysis should be            approached as "a matter of statutory construction rather than            free-form judicial policymaking").            21.  It is undisputed that the cigarette manufacturers'            cigarette packages are properly labeled under the FCLAA.                                        -28-                                         28                      b.  Application                           (1) " Requirement or prohibition . . . imposed                           under State law."                      Although members of the  Cipollone Court disagreed            over whether a state common-law damages action could constitute            a "requirement" under S 1334(b), the Court unanimously agreed            that "positive enactments" are state-imposed "requirement[s] or            prohibition[s]" within the meaning of that clause.   See 505            U.S. at 521 (plurality opinion); 505 U.S. at 525 (Blackmun, J.,            concurring in part, dissenting in part); 505 U.S. at 548            (Scalia, J., concurring in part, dissenting in part). The            Disclosure Act, being a positive enactment by the Massachusetts            state legislature, therefore constitutes a state-imposed            "requirement" that falls within the universe of state action            potentially preempted by the S 1334(b).                           (2) " Based on Smoking and Health"                      We think it clear that the obligations imposed by the            Disclosure Act are "based on smoking and health," and the            Commonwealth does not dispute this position. The law's stated            purpose, "[f]or the purpose of protecting the public health,"                                            22.  The Disclosure Act constitutes a "requirement" because            unless tobacco product manufacturers comply with its reporting            provisions, they must forgo selling their products in            Massachusetts.  Cf. Vango Media, Inc. v. City of New York, 34            F.3d 68, 72 (2d Cir. 1994) (finding city ordinance pertaining            to tobacco product advertisements "plainly is a 'requirement'"            within the meaning of S 1334(b) because absent compliance with            the ordinance, plaintiff would have to forgo advertising            display).                                        -29-                                         29            and the accompanying text strongly imply that its anticipated            effect will be greater public awareness about the additives and            nicotine in tobacco products and the potential health effects            of those ingredients. Mass. Gen. Laws ch. 94, S 307B. The            Disclosure Act, therefore, bears the requisite relationship to            "smoking and health" within the meaning of S 1334(b).     See            Vango                   Media, 34 F.3d at 73 (finding city ordinance requiring            display of public health messages about health risks of smoking            was "based on smoking and health" because both its purpose and            effect centered on such risks);                                           Lacey v.                                                    Lorillard Tobacco Co.                                                                        ,            956 F. Supp. 956, 962 (N.D. Ala. 1997) (stating that a "list of            ingredients in cigarettes would most likely be material only as            it related to the health of a plaintiff"); Cf. Griesenbeck v.            American                      Tobacco                              Co., 897 F. Supp. 815, 823 (D.N.J. 1995)            (finding that "threat of self-immolation arising from the            negligent care of one's cigarette is a 'health risk'" bearing            the requisite relationship to smoking and health).                      Courts have found the requisite link to smoking and            health lacking where the predicate duty was "a more general            obligation," for example, "the duty not to deceive,"                                                                Cipollone,            505 U.S. at 528-29 (plurality), the "duty not to conspire to            commit fraud," id. at 530 (plurality), and the duty "to not            engage in unfair competition by advertising illegal conduct or            encouraging others to violate the law,"     Mangini v.   R.J.            Reynolds                      Tobacco                              Co., 875 P.2d 73, 80 (Cal. 1994) (involving                                        -30-                                         30            claim that cigarette manufacturer's "Old Joe Camel advertising            campaign targets minors for the purpose of inducing and            increasing their illegal purchases of cigarettes"). Cf.                                                                     Lohr,            116 S. Ct. at 2258 (finding that plaintiffs' negligent            manufacturing claim was predicated on the "general duty of            every manufacturer to use due care to avoid foreseeable dangers            in its products" and thus, the state common-law requirements            were not "with respect to" medical devices).                      Here, the Commonwealth does not argue that the            Disclosure Act imposes an obligation so general as to take it            out of the smoking-and-health nexus of S 1334(b). While the            argument could be made that the Disclosure Act predicates its            obligations upon the general duty to follow state statutory            reporting requirements rather than state-considerations that            are "based on smoking and health," we think such an argument            impermissibly raises the level of generality of the inquiry.            The logical extension of this argument would be that all            obligations stemming from state positive-enactments are            predicated on the "general duty" to "abide by state law," thus            bringing every such requirement outside the scope of the            preemption clause even if it squarely involved otherwise            preempted matters.  Cf. Cipollone, 505 U.S. at 543 (Blackmun,            J., concurring in part, dissenting in part) (criticizing            plurality's "frequent shift in the level of generality at which            it examines the individual claims").                                        -31-                                         31                           (3) "  With                                          Respect                                                   to                                                       the                                                            Advertising                                                                         or                           Promotion of Any Cigarettes"                      Having found that the Disclosure Act is a            "requirement or prohibition based on smoking and health . . .            imposed under State law," we turn to the main dispute            underlying our express preemption analysis: whether or not the            obligations imposed under the Disclosure Act are "with respect            to the advertising or promotion of any cigarettes" within the            meaning of S 1334(b). At first glance, the Disclosure Act's            reporting duties seem entirely unrelated to tobacco industry            advertising and promotion. Certainly, as the district court            found, the compelled furnishing of additive and nicotine-yield            lists to state authorities does not itself constitute            "advertising or promotion."     Although the cigarette                                            23.  In reviewing the FCLAA as a whole, see Crandon v. United            States, 494 U.S. 152, 158 (1990), we observe that the specific            references to the words "advertising," "advertisement," and the            phrase "advertising or promotion," in context, suggest an            interpretation of those concepts significantly more traditional            than furnishing ingredient and nicotine-yield reports to a            state agency.     See,  e.g., S 1331(1) (referring to the            "inclusion of warning notices on each package . . . and                                                                   in each            advertisement of cigarettes" (emphasis added)); S 1333(a)(2)            ("It shall be unlawful for any manufacturer . . . of cigarettes            to advertise or cause to be advertised . . . any cigarette            unless the advertising bears [a required label]") (emphasis            added); S 1333(a)(3) (involving similar requirement for outdoor            billboard advertisements); S 1335 (making it illegal for            manufacturers "to advertise" on radio and television); S 1336            (acknowledging the Federal Trade Commission's authority in the            area of unfair practices "in the advertising of cigarettes")            (emphasis added); S 1337 (requiring the FTC to transmit annual            reports to Congress "concerning . . . current practices and            methods of "cigarette  advertising                                                and                                                    promotion") (emphasis            added).                                        -32-                                         32            manufacturers do not seriously dispute this conclusion, they            submit that the Disclosure Act's requirements are "with respect            to" advertising and promotion within the meaning of S 1334(b).                        The cigarette manufacturers theorize that the            FCLAA, through its mandated warning labels and express            preemption language, exclusively delineates the necessary and            sufficient health information that cigarette manufacturers may            be compelled to communicate to the public. They contend that            section 1334(b), therefore, in addition to preempting            requirements to change cigarette labels or advertisements,            prohibits any additional requirement to communicate to the            public about smoking and health. The manufacturers reason that            the Disclosure Act, although styled as an agency reporting            requirement, essentially compels them to communicate additional            smoking and health information to the public because the health            department will make the information publicly available. They            assert that S 1334(b) would be rendered meaningless if the            Commonwealth may accomplish indirectly what it may not            accomplish directly by using the state agency "as a conduit"            for the manufacturers' compelled communication. In short, they            claim that the Disclosure Act impermissibly requires them to            participate in what amounts to a public service advertising            campaign intended to supplement the federally mandated            warnings.                                        -33-                                         33                      In  Cipollone, two of the Court's opinions            specifically analyzed the phrase "with respect to . . .            advertising and promotion": Justice Stevens' four-vote            plurality opinion, which interpreted the phrase narrowly, and            Justice Scalia's opinion concurring in part and dissenting in            part, in which Justice Thomas joined, which interpreted the            phrase more broadly. We note initially that the six Justices            represented by these two opinions apparently agreed that the            preemption clause reached plaintiffs' failure-to-warn claims,            at least insofar as they required proof that the manufacturers'            "post-1969 advertising or promotions should have included            additional, or more clearly stated, warnings." 505 U.S. at 524            (plurality); see id. at 554 (Scalia, J., concurring in part,            dissenting in part);   see  also  Palmer, 825 F.2d at 627            (explaining that successful failure-to-warn claim effectively            compels manufacturers to alter warning labels).                      The four-member plurality further found, however,            that the preemption clause did not bar "[failure-to-warn]            claims that rely solely on [the cigarette manufacturers']            testing or research practices or other actions  unrelated                                                                        to            advertising                          or                              promotion."   Cipollone 505 U.S. at 524-25            (emphasis added). Moreover, under the plurality's reasoning,                                            24.  Justice Blackmun's concurring and dissenting opinion,            joined by two other Justices, expressed the view that the 1969            Act's preemption clause did not reach state common law claims            at all. Thus, these three Justices expressed no view on the            meaning of the phrase at issue here.                                        -34-                                         34            fraudulent misrepresentation claims survived "insofar as those            claims rely on a state-law duty to disclose such facts                                                                   through            channels of communication other than advertising or promotion                                                                       ."            Id. at 528 (emphasis added). Significantly, the plurality            offered the following by way of illustration: "Thus, for            example, if state law obliged respondents to disclose material            facts about smoking and health  to                                                an                                                   administrative                                                                   agency,            [sec. 1334(b)] would not pre-empt a state-law claim based on a            failure to fulfill that obligation."  Id. (emphasis added).                      Under the plurality's reasoning, there appears to be            little doubt that the Disclosure Act is not "with respect to"            advertising or promotion because the manufacturers do not            satisfy their obligation to file annual reports to the state            health department "through" an advertising or promotion            channel.   See 505 U.S. at 528 (plurality). The agency's            potential release of the information to the public would seem            to raise no concern with the plurality, which was not otherwise            troubled about compelled communication to the public through            alternative, non-advertising, non-promotional channels (i.e.,            in duties underlying certain surviving failure to warn and            fraudulent misrepresentation claims), for the purposes of the            language at issue. Thus, we believe that the plurality's            reasoning militates towards the Commonwealth's position.                      Justice Scalia's opinion, concurring in part and            dissenting in part, disagreed with the plurality's conclusion                                        -35-                                         35            that a state law claim based on the failure to warn consumers            "'through channels of communication other than advertising or            promotion'" would not come within S 1334(b)'s preemptive scope.            Id. at 554 (Scalia, J., concurring in part, dissenting in part)            (quoting plurality opinion, id. at 528). While acknowledging            that the FCLAA clearly does not preempt claims unrelated to            industry advertising and promotion, Justice Scalia reasoned            that it preempts "claims based on duties that can be complied            with by taking action    either within the advertising and            promotional realm                              or elsewhere                                         ."  Id. at 554. Thus, according            to Justice Scalia, although a product warning could be            communicated in many ways, S 1334(b) would preempt the duty as            a whole because it could be satisfied through advertising or            promotion.  See id. at 554-55.                      Justice Scalia's opinion also intimated, however,            that a hypothetical law requiring disclosure of product health-            hazards to a state public-health agency would bear "no            relation" to industry advertising and promotion.  Id. at 554.            He further speculated that such a law "would seem to survive"            a proposed "practical compulsion" test to determine the                                            25.  Noting that manufacturers normally communicate required            product warnings through advertising and promotion, Justice            Scalia found it "implausible that Congress meant to save            cigarette companies from being compelled to convey such data to            consumers through that means, only to allow them to be            compelled to do so through means more onerous still."            Cipollone, 505 U.S. at 555 (Scalia, J., concurring in part,            dissenting in part).                                        -36-                                         36            viability of a state law, which he phrased as: "whether the law            practically compels the manufacturers to engage in behavior            that Congress has barred the States from prescribing directly."            Id. at 555 (Scalia, J., concurring in part, dissenting in            part). Justice Scalia's opinion suggests that because the            hypothetical law's requirements could not possibly be satisfied            through advertising and promotional efforts, the law would not            "practically compel" the manufacturers "to relinquish the            advertising and promotion immunity accorded them by the Act."            Id. at 555.                      In this case, of course, we are presented with an            agency reporting requirement coupled with the probability that            the information provided will be made public. Although the            health department will likely publicize the required reports,            the Disclosure Act does not "practically compel" the            manufacturers to communicate smoking and health information to            the public within Justice Scalia's explication because, while            the communicative action to consumers could alternatively be            achieved through advertising and promotional efforts, the            Disclosure Act itself admits of no such alternative to            compliance. There is no suggestion that the manufacturers            could somehow comply with the Disclosure Act simply by changing            their advertising or promotional materials. Moreover, direct            communication of the additive and nicotine-yield information to            the public through some other means would not excuse the                                        -37-                                         37            manufacturers' duties under the law. Thus viewed, the            Disclosure Act would survive even Justice Scalia's more            expansive, but distinct minority view of the preemption clause.                      While our                                Cipollone-based analysis necessarily draws            upon the dicta of six Justices who were not presented with an            actual agency-reporting scheme, much less a scheme that            contemplates the public release of the information reported, we            believe that the Justices' observations suggest a qualitative            difference, for S 1334(b) purposes, between direct            communication with the public and disclosure to a state agency.            The fact that public health agencies exist to serve the public,            and the absence of any secrecy mandates in the      Cipollone            opinions discussing state agency reporting requirements,            further suggest that the agency's ultimate use of the            information does not bear on the question whether such a            reporting scheme relates to advertising and promotion. In the            end, we believe that                                 Cipollone weighs strongly in favor of the            Commonwealth's position.                      In the wake of Cipollone, several courts have dealt            specifically with the question whether a state statute or            common-law damages action, in various contexts, implicates the            phrase, "with respect to . . . advertising or promotion."            S 1334(b). In general, the cases yield a broad interpretation            of the language at issue. Not surprisingly, therefore, the            manufacturers rely heavily on select language from them.                                        -38-                                         38            Although none of the cases involves a state-agency reporting            scheme, we review them to contextualize the manufacturers'            arguments and to indicate how the cases differ from the instant            dispute.                      In                         Vango Media, Inc.                                          v.                                              City of New York                                                            , 34 F.3d 68,            70 (2d Cir. 1994), the Second Circuit held that the FCLAA            expressly preempted a city ordinance requiring an advertising            business to display a minimum of one public health message            about the dangers of smoking (or the benefits of not smoking)            for every four tobacco advertisements. The court reasoned that            the phrase "with respect to" in S 1334(b) is essentially            synonymous with "relating to," which, in turn, the Supreme            Court has interpreted broadly.  Id. at 74 (citing definitions            such as "referring to" or "having a connection with").            Although the city ordinance did not require changes in the            content of tobacco advertisements, the court found that it            impermissibly impacted advertisers and promoters by "impos[ing]            conditions on their display of cigarette advertisements." Id.            at 75. The court concluded that the city ordinance directly            contravened the FCLAA's purpose of avoiding diverse advertising            regulations and "tread[ed] on the area of tobacco advertising,            even if . . . only at the edges."  Id. at 74.                      In this case, the cigarette manufacturers argue that            Vango Media                       establishes that the FCLAA preempts any attempt to            require anyone to provide smoking and health messages to the                                        -39-                                         39            public through  any                                  media, even media other than industry            advertisements. They argue that the Disclosure Act surely            comes within this vast preempted realm. We do not read  Vango            Media so expansively. In   Vango                                              Media, the very display of            tobacco advertisements invoked the city ordinance requirements,            thus evincing a direct and substantial connection between the            ordinance and industry advertising.   See id. at 74-75. The            Disclosure Act, on the other hand, does not impose conditions            upon tobacco advertising or promotional decisions, which are            irrelevant to the Disclosure Act's obligations.                      Moreover, even assuming (without deciding) that "with            respect to" is synonymous with "relate to," the Disclosure Act            does not "relate to" advertising or promotion because it lacks            the requisite "reference to" or "connection with" the preempted            realm.  See California                                    Labor                                          Stds.                                                Enforcement v.  Dillingham            Constr., 117 S. Ct. 832, 837-41 (1997) (analyzing "relate to"            phrase in express preemption language in Employee Retirement            Income Security Act of 1974 ("ERISA"));    Buono v.  NYSA-ILA            Medical                     and                         Clinical                                   Servs.                                          Fund, 117 S. Ct. 1747, 1751-52            (1997) (same). The Disclosure Act does not make "reference to"            advertising and promotion because it does not "act[]            immediately and exclusively" upon advertising and promotion,            and, unlike the ordinance in                                         Vango Media                                                  , the existence of such            advertising is not "essential to the [state] law's operation."            Dillingham Constr.                             , 117 S. Ct. at 838. The Disclosure Act does                                        -40-                                         40            not have a "connection with" advertising and promotion because            it does not mandate the structure and content of advertising,            see id. at 839, and, while it may somehow "alter[] the            incentives" in advertising decision-making, it "does not            dictate the choices,"                                  id. at 842. Thus, while the ordinance in            Vango Media                       ran afoul of S 1334(b)'s "with respect to" language            by analogy to the Court's "relate to" jurisprudence, the            Disclosure Act does not.                      Several other cases have involved state claims that            sought to impose liability on tobacco product manufacturers for            failing to disclose information to consumers through channels            other than traditional advertising or promotion. A few courts            have found general allegations in this regard insufficient to            escape S 1334(b)'s preemptive reach. See                                                      Cantley v.                                                                 Lorillard            Tobacco                     Co., 681 So.2d 1057, 1061 (Ala. 1996) (finding bare            allegation that cigarette manufacturers concealed material            facts was "inevitably based upon a state law duty to disclose            facts through advertising or promotion" because communication            with consumers normally occurs only through those channels            (internal quotation marks and citation omitted)); Griesenbeck            v. American                         Tobacco                                 Co., 897 F. Supp. 815, 823 (D.N.J. 1995)            (finding that a claim that cigarette manufacturers "should have            warned [of health risk] . . . somehow, presumably through some            variety of mass-notification" was preempted because "[a]            company's attempt to notify its mass market of anything . . .                                        -41-                                         41            is considered 'advertising or promotion' under the general            usage of those terms"); cf. Grenier, 96 F.3d at 564 (finding            failure-to-warn claims preempted under Federal Insecticide,            Fungicide, and Rodenticide Act because plaintiff failed "to set            forth a coherent specific claim" that was not based on the            preempted realm of labeling or packaging).                      In another case, a plaintiff creatively premised her            failure-to-warn claim on the failure to employ specific "non-            promotional communications," such as "public service messages,            seminars on smoking cessation and harmful smoking habits,            direct mail-outs . . ., public advocacy, and lobbying."            Sonnenreich v. Philip Morris Inc., 929 F. Supp 416, 418 (S.D.            Fla. 1996). The court rejected the proffered alternatives,            reasoning that they "employ the same techniques as a            traditional advertising or promotional campaign. . . . [and]            are all undertaken with the effect of promoting and fostering            a product or an ideology."   Id. at 419. The court reasoned            that the plaintiff's theory would render the FCLAA            "meaningless" because it "suggest[ed] that at the same time            [the tobacco manufacturers] were providing the Congressionally-            mandated warnings, they were exposing themselves to state law            tort liability by failing to use 'non-promotional            communications' to disseminate material essentially duplicative            of the Surgeon General's warning."  Id. at 418.                                        -42-                                         42                      In yet another case more closely analogous to this            one, a plaintiff sought an injunction to compel cigarette            manufacturers to disclose to consumers "the nature, type,            extent and identity" of all cigarette additives.    Lacey v.            Lorillard Tobacco Co., 956 F. Supp 956, 958 (N.D. Ala. 1997).            After reviewing the FCLAA's scheme and obligations, the court            found the claim preempted because it was "based upon an alleged            duty . . . to provide to consumers more information regarding            smoking and health than is required by the [FCLAA],"  id. at            963, and because its additional disclosure obligations            "unavoidably attack[ed]" the manufacturers' advertising and            promotion, id. at 962.                      Here, we are presented with more than a vague "tell-            the-consumers-any-way-you-wish" claim. Cipollone, 505 U.S. at            555 (Scalia, J., concurring in part, dissenting in part).            Specifically, the Disclosure Act requires that ingredient            reports be filed with a state agency; the reports themselves            are plainly outside the realm of advertising or promotion.            Unlike plaintiff's theory in Sonnenreich, the Disclosure Act            does not require the manufacturers to produce materials and            disseminate information to consumers through techniques, such                                            26.  The Lacey court acknowledged the  Cipollone plurality's            suggestion that the FCLAA would not preempt a state law            requirement to disclose smoking-and-health facts to an            administrative agency.  See 956 F. Supp at 962. The court            explained, however, that the law of the pertinent state            (Alabama) imposed no such obligation.  See id.                                         -43-                                         43            as seminars or direct mailings, that resemble promotional            efforts and impel the fostering of a product ideology. Unlike            the plaintiff's claim in Lacey, the Disclosure Act does not            impose a duty upon manufacturers to provide additional smoking            and health information directly to the public.                      There would arguably appear to be little difference            between requiring manufacturers to disseminate ingredient            information directly to the public and requiring them to file            such information with a state agency, which, in turn, will make            the information publicly available. Nevertheless, there is a            difference, and we are unpersuaded by the manufacturers'            argument that the difference is not substantively important.            Moreover, we find doubtful their expansive interpretation of            the with-respect-to-advertising-and-promotion condition.                      While we need not decide the issue now, we are            skeptical of the manufacturers' sweeping proposition that the            FCLAA prescribes the exclusive means by which they may be            compelled to communicate health information directly to the            public. On this point, we find informative the      Cipollone            plurality's preservation of some claims that were based, in            part, on the duty to communicate smoking-and-health information            to the public.    See 505 U.S. at 524-25 (failure-to-warn            claims);                     id. at 528 (fraudulent misrepresentation claims). The            survival of such claims undermines the premise that the FCLAA            delineates the exclusive scope of consumer-communication                                        -44-                                         44            duties, and furthermore suggests the very existence of a subset            of such requirements that are wholly unrelated to advertising            and promotion. We also find informative the legislative            history's repeated reference to the "narrow" and "limited"            nature of the preemption provision and declaration that the            provision "is limited entirely to State or local requirements            or prohibitions in the advertising of cigarettes." S. Rep. 91-            566, 1970 U.S.C.C.A.N. at 2663.                      Our skepticism aside, significantly, the Disclosure            Act does not require the manufacturers to communicate directly            with consumers. Of course, a quintessential state requirement            "with respect to . . . advertising and promotion" would be a            law mandating changes or additions to the content of cigarette            advertisements. One step removed from such a law would be a            requirement that manufacturers mass-communicate additional            warnings or other smoking-and-health information directly to            consumers through channels other than advertising or promotion.            At this point, the argument in favor of preemption begins to            weaken given the                             Cipollone plurality's seemingly narrow concern            with requirements specifically involving advertising and            promotional channels.  See 505 U.S. at 524-25, 528. Further            removed yet would be a requirement to disclose such information            to some entity other than the consuming public. While one can            imagine subsequent intermediate steps, at some point we reach            the agency reporting scheme before us.                                        -45-                                         45                      We think that the agency-reporting scheme prescribed            under the Disclosure Act is insufficiently related to the            advertising and promotion realm to bring the state law within            S 1334(b)'s preemptive scope. As noted above, the reports            required under the Disclosure Act do not themselves constitute            or resemble promotional material. Once the manufacturers file            the reports with the state public health agency, their            communicative obligation ceases. They will not be required to            disseminate further the reported information, which becomes            public (if at all), solely through agency action. Thus, unlike            an obligation to advise consumers                                              directly of any information,            which may compel the manufacturers to engage in activity            resembling advertising and promotional efforts, the Disclosure            Act requires no such exertion. In fact, the law separates the            normal source of product advertising and promotion, the tobacco            industry, from any direct communicative action to the public.            That the information contained in the report may eventually            become widely disseminated does not transform the            manufacturer's initial reporting obligation into an advertising            or promotional activity. In our view, an implied            transformation of this sort would distort the language of            S 1334(b) beyond Congress' intent. In short, the line between            "with respect to" and "no relation to" advertising and            promotion must be crossed at some point, and although we need                                        -46-                                         46            not pinpoint that exact location now, we think it has been            crossed here.                      Moreover, we disagree with the manufacturers'            argument that the Disclosure Act meets this condition because            it reflects the Commonwealth's "impermissible judgment" that            the federally-mandated health warnings are inadequate and thus            constitutes an attack upon those warnings. The      Cipollone            plurality specifically rejected the proposition that S 1334(b)            broadly preempts any claim that inevitably questions the            suitability of the manufacturers' advertising and promotion            activities. See 505 U.S. at 525 (discussing breach-of-express-            warranty claim). As the plurality stated: "The appropriate            inquiry is not whether a claim challenges the 'propriety' of            advertising and promotion, but whether the claim would require            the imposition under state law of a requirement or prohibition            based on smoking and health with respect to advertising or            promotion."  Cipollone, 505 U.S. at 525.   This observation            indicates that the relevant inquiry focuses not upon any            relation between advertising and the                                                 motivation behind a state                                            27.  See                     Penn Advertising                                     v.                                         Mayor of Baltimore                                                          , 63 F.3d 1318,            1320-21, 1324 (4th Cir. 1995) (holding that FCLAA did not            preempt city ordinance prohibiting placement of certain forms            of cigarette advertisements in publicly visible places because            the ordinance merely limited the location, and did not address            the content, of cigarette advertisements),                                                      vacated and remanded            on other grounds                           , 116 S. Ct. 2575 (1996),                                                      modified by                                                                 101 F.3d            332 (4th Cir. 1996),                                 cert.                                       denied, 117 S. Ct. 1569 (1997);                                                                       see            also id. at 1324 (noting Cipollone plurality's declination to            focus on whether a claim contests the "propriety" of            advertising or promotion).                                        -47-                                         47            law, but upon the law itself and any connection it might have            with advertising activities.  See Associated                                                          Indus. v.  Snow,            898 F.2d 274, 279 (1st. Cir. 1990) ("Rather than attempt to            divine the Massachusetts Legislature's intent in enacting its            . . . legislation, we look instead to the effect of the            regulatory scheme." (footnote omitted)) (involving express            preemption analysis). Thus, the mere suggestion that state            lawmakers sought passage of the Disclosure Act in part because            of their discontent with federal regulatory efforts does not            affect our preemption analysis.                      We find, therefore, that the reach of the FCLAA's            express preemption clause, S 1334(b), does not preclude            enforcement of the Disclosure Act. We reach this conclusion            even assuming that underlying the state law is discontent with            the federally mandated warnings and the desire to communicate            the additive and nicotine-yield information to the public.            Looking to the actual effect of the state law, the Disclosure            Act does not require alterations in the industry's advertising            and promotional activities, or impose any duty to disclose            information through those channels. The state law's            obligations are neither triggered by advertising decisions, nor            could they be fulfilled by altering cigarette labels or            advertisements. The law does not direct the manufacturers to            employ any mass-marketing or other techniques even remotely            resembling advertising and promotion. In the end, we think                                        -48-                                         48            that had Congress intended to prohibit the public disclosure of            smoking and health information that, at some point, the            tobacco-product manufacturers had disgorged under state law,            the limited phrase "with respect to advertising and promotion"            would be an odd vehicle to reach this end. Thus, we find the            explicit preemption language and legislative history            insufficient to "clear[ly] and manifest[ly]" overcome the            presumption against preemption of a state's traditional powers            to legislate for the health and safety of its citizens.            Mortier, 510 U.S. at 606;                                      see                                         Dillingham Constr.                                                          , 117 S. Ct. at            842 ("We could not hold pre-empted a state law in an area of            traditional state regulation based on so tenuous a relation            without doing grave violence to our presumption that Congress            intended nothing of the sort.") (construing express preemption            language).                      2.  Smokeless Tobacco Act                      Our inquiry into the scope of the Smokeless Tobacco            Act's preemption clause is considerably simpler than the            preceding analysis. The Smokeless Tobacco Act provides that                      No statement relating to the use of                      smokeless tobacco products and health,                      other than the statements required by                      [this act], shall be required by any State                                            28.  The manufacturers do not argue that the 1984 amendments to            the FCLAA wrought by the CSEA in any manner changed or affected            the meaning of the express preemption clause, last amended in            1969. Thus, we do not address the question whether the            ingredient reporting requirements or other amendments affect            the express preemption analysis.                                        -49-                                         49                      or local statute or regulation to be                      included  on                                      any                                            package or   in                                                              any                      advertisement (unless the advertisement is                      an outdoor billboard advertisement) of a                      smokeless tobacco product.]            15 U.S.C. S 4406(b) (emphasis added).                      We find dispositive the phrases "                                                      on any package" and            "in any advertisement," which differ significantly from the            broader "with respect to" language in the FCLAA's preemption            provision.   Cf.  Cipollone, 505 U.S. at 520 (plurality)            (explaining that the clause, "                                         with respect to                                                        . . . advertising            and promotion," in the 1969 Act was notably broader than its            predecessor, "                         in the advertising," in the 1965 Act);                                                                id. at 554            (Scalia, J., concurring in part, dissenting in part)            (suggesting same). Because the Disclosure Act only requires            the manufacturers to file certain reports to the Massachusetts            Department of Public Health, plainly it does not require a            "statement" of any kind "to be included on any package or in            any advertisement."     Cf.  id. at 518 (majority opinion)            (explaining that similar language in 1965 Act "merely            prohibited . . . particular cautionary statements on cigarette            labels . . . or in cigarette advertisements"). The Smokeless            Tobacco Act's express preemption clause, therefore, does not            invalidate the Disclosure Act.                                            29.  For the reasons stated in our FCLAA express preemption            analysis, we reject the manufacturers' argument that the            publicizing of the ingredient lists effectively transforms the            lists into an "advertisement" within the meaning of S 4406(b).                                        -50-                                         50                       We observe that our holding is wholly consistent            with the Smokeless Tobacco Act's "savings clause" which            preserves,                       inter                             alia, state common-law failure to warn claims.            See 15 U.S.C. S 4406(c); S. Rep. No. 99-209, at 14, 1986            U.S.C.C.A.N. at 13 (also stating that Smokeless Tobacco Act is            not intended "to preempt a State's ability to control the            promotion or advertising of tobacco products"). If claims            directly attacking the adequacy of package labeling and            advertising survive the Smokeless Tobacco Act's express            preemption clause, then the reporting obligations under the            Disclosure Act surely survive as well.                      We conclude that neither the FCLAA nor the Smokeless            Tobacco Act expressly preempts the Massachusetts Disclosure            Act.            B.  Implied Preemption                      1.  A Proper Inquiry?                      Before we turn to the manufacturers' implied pre-            emption arguments, we first address the Commonwealth's            contention that Cipollone precludes any preemption analysis            beyond the scope of the express preemption clause. In            Cipollone, the Court held that "the pre-emptive scope of the            1965 Act and the 1969 Act is governed entirely by the express            [preemption] language in . . . each Act" and explained that            "Congress' enactment of a provision defining the pre-emptive            reach of a statute implies that matters beyond that reach are                                        -51-                                         51            not pre-empted." 505 U.S. at 517. The Court further stated:            "In this case, the other provisions of the 1965 and 1969 Acts            offer no cause to look beyond [the express preemption            provision] of each Act. Therefore, we need only identify the            domain expressly pre-empted by each of those sections."                                                                    Id. at            517.                      Subsequent to  Cipollone, the Court clarified the            appropriate approach to implied preemption issues in cases in            which express preemption language exists. In     Freightliner            Corp. v.                     Myrick, 115 S. Ct. 1483 (1995), the Court acknowledged            Cipollone's holding "that the pre-emptive scope of the two            statutes at issue was governed by the language in each act,"            id. at 1487, but further explained that "[t]he fact that an            express definition of the pre-emptive reach of a statute            'implies' -- i.e., supports a reasonable inference -- that            Congress did not intend to pre-empt other matters does not mean            that the express clause entirely forecloses any possibility of            implied pre-emption,"                                  id. at 1488. Thus, the Court concluded,            "[a]t best, Cipollone supports an inference that an express            pre-emption clause forecloses implied pre-emption; it does not            establish a rule."  Id. at 1488.                      In this case, the manufacturers' implied preemption            arguments are largely based on the ingredient reporting            provisions added to the FCLAA by the CSEA in 1984, which were            not at issue in Cipollone.  See 505 U.S. at 508. Thus, the                                        -52-                                         52            Cipollone Court's refusal to look beyond the express preemption            clauses for the purposes of analysis under the 1965 and  1969            Acts does not per se foreclose an implied preemption analysis            based on the 1984 amendments. Thus, while we might be tempted            to end our preemption analysis here, we feel compelled to            explore the manufacturers' implied preemption theories.                      We are bound, however, by the Cipollone majority's            holding that S 1334(b) governs the preemptive scope of the 1965            and 1969 Acts. Having found that the Disclosure Act falls            outside the domain of S 1334(b), we engage in an implied            preemption analysis only to the extent it relies on the            amendments wrought by the CSEA in 1984. In other words, we are            not at liberty to address any implied preemption theories based            solely on the FCLAA in its 1965 or 1969 versions, independent            of the CSEA. Moreover, given that a majority of the Court has            indicated that the FCLAA's express preemption clause implies            that matters outside its scope are not preempted,         see            Cipollone, 505 U.S. at 517, it becomes apparent that any            attempt to surmount the presumption against preemption of the            state's historic police powers under an implied preemption            theory faces a considerable obstacle.  See Snow, 898 F.2d at            282 ("The burden of overcoming th[e] presumption in favor of            state law is heavy in those cases that rely on implied            preemption, which rests in turn on inference" (internal            quotation marks and citations omitted)).                                        -53-                                         53                      2.  Manufacturers' Arguments                      As detailed above, both the FCLAA and Smokeless            Tobacco Act direct tobacco-product manufacturers to provide to            the Secretary of Health and Human Services an annual            ingredients list which does not identify the manufacturer or            the brand represented by the list, information which may be            submitted aggregately by more than one manufacturer through an            agent.   See 15 U.S.C. SS 1335a(a), 4403(a). Under both            statutes, the information provided is "treated as a trade            secret or confidential information," and its unauthorized            disclosure is forbidden.            See SS 1335a(b)(2)(A),            4403(b)(2)(A).  The laws further require the Secretary to            establish written procedures by which the information will be            safeguarded and specifically mandates that those procedures            include certain custodial, storing, and access arrangements.            See SS 1335a(b)(2)(C), 4403(b)(2)(C). The manufacturers            contend that the Disclosure Act is impliedly preempted in light            of these provisions combined with the structure and purpose of            the statutes.                      The manufacturers do not rely, nor could they rely,            on the theory that compliance with both the Disclosure Act and            federal law presents a "physical impossibility."  See Florida                                            30.  The FCLAA additionally makes such disclosure a felony by            explicit reference to 18 U.S.C. S 1905, which criminalizes            unauthorized disclosure of trade secret or confidential            information by federal officers or employees.  See 15 U.S.C.            S 1335a(b)(2)(A).                                        -54-                                         54            Lime & Avocado Growers, Inc.                                        v.                                           Paul, 373 U.S. 132, 143 (1963).            Rather, they contend that the Disclosure Act impermissibly            conflicts with the purpose and objectives that underlie the            federal statutes. They further contend, albeit less            elaborately, that the state law invades a field of commerce for            which Congress intended exclusive federal regulation.                      Specifically, the manufacturers argue that through            the FCLAA and the Smokeless Tobacco Act, Congress intended to            establish a careful balance between two national interests: (1)            educating the public about the use of tobacco products and            health and (2) limiting commercial burdens on the tobacco            industry. The ingredient reporting and safeguarding            provisions, they contend, further these purposes in a unique            and exclusive manner. They reason that, while the required            ingredient lists allow Congress, with the assistance of the            Department of Health and Human Services ("HHS") and its            research efforts, to determine the continued adequacy of the            mandated warning labels, nonetheless the information provided            is kept in strict confidence through elaborate statutory            protections. These comprehensive provisions, the manufacturers            claim, limit the impact upon commerce associated with reporting            and evaluating ingredient information.                      The manufacturers assert that, by prescribing both an            anonymous form of ingredient disclosure and strict safekeeping            of the information provided, Congress intended to avoid                                        -55-                                         55            "unnecessary invasion of company-specific and brand-specific            trade secret information." They contend that Congress could            have required full ingredient disclosure on all product labels,            or, at the other extreme, no disclosure whatever. Instead, it            chose a specific intermediate position which represents a            "precisely calibrated balance" that, in Congress' judgment,            best served the public.                      The manufacturers further contend that the anonymity            provided them when submitting the ingredient lists indicates            that the additional provisions protecting the confidentiality            of the collected information are not merely matters of            "custody" or "internal housekeeping." While conceding that the            federal statutes do not grant the information "trade secret            status" per se, the manufacturers nonetheless argue that, for            preemption purposes, the exacting confidentiality provisions            reflect Congress' concern for the potential loss of commercial            advantage, which itself is part and parcel of Congress' broader            intent to protect commerce and the national economy.                      According to the manufacturers, enforcement of the            Disclosure Act's obligations to disclose brand-specific and            company-specific ingredient information, without guarantees of            confidentiality, would frustrate the purposes of the FCLAA and            Smokeless Tobacco Act. They contend that the federal statutes'            intricate information-safekeeping provisions "would be utterly            pointless" if a state were permitted to make publicly available                                        -56-                                         56            information that the federal government may not even collect,            much less reveal. Moreover, they claim, it would be "absurd"            for the HHS Secretary to continue to collect the federally            prescribed ingredient information when even more precise, brand            specific information collected pursuant to the Disclosure Act            would be readily available. Because Congress carefully limited            the collection and disclosure of cigarette ingredients in            furtherance of the balance between health education and trade            protection, they argue, collection and disclosure of the type            contemplated by the Disclosure Act would "stand[] as an            obstacle to the accomplishment and execution of the full            purposes and objectives of Congress."                                                  Hines v.                                                           Davidowitz, 312            U.S. 52, 67 (1941). They further assert that the comprehensive            manner in which Congress dealt with the health concern posed by            tobacco-product additives shows its intent to obtain uniformity            in ingredient disclosure requirements, supplanting any            supplemental state efforts, such as the Disclosure Act, in the            area.                      The manufacturers also offer a closely related            argument: the Disclosure Act intrudes into a "field," albeit a            narrow one, that Congress intended federal law to occupy            exclusively. To this end, they assert that the HHS Secretary's            role to review cigarette ingredients from a health standpoint,            the stringent confidentiality procedures, and the balance of            national interests "evince Congress' intent to occupy the field                                        -57-                                         57            of cigarette ingredient reporting, monitoring and review." In            sum, they argue that the very comprehensiveness, complexity,            and specificity of the federal reporting provisions evince a            federal dominance and pervasiveness in ingredient reporting and            disclosure that allows no room for supplemental state laws such            as the Disclosure Act. Ultimately, we find the manufacturers'            arguments unpersuasive.                      3.  Actual Conflict                      Topics that warrant congressional legislation            necessarily entail issues of national concern. See                                                                English v.            General Elec. Co.                            , 496 U.S. 72, 87 (1990);                                                       Hillsborough County            v. Automated                          Medical                                   Laboratories,                                                 Inc., 471 U.S. 707, 719            (1985). "That cannot mean, however, that every federal statute            ousts all related state law."                                          Hillsborough County                                                            , 471 U.S. at            719. Moreover, the mere fact that a subject of federal            legislation requires an "intricate and complex response[] from            the Congress" does not necessarily indicate that Congress            intended its response to be the exclusive means of addressing            the issue. Id. at 719 (quoting                                            Dublino, 413 U.S. at 717);                                                                       see            also                 Ingersoll-Rand Co.                                   v.                                       McClendon, 498 U.S. 133, 143 (1990).            Rather, "we must look for special features warranting            preemption."  Hillsborough County, 471 U.S. at 719 (involving            field-occupation preemption issues),  quoted in English, 496            U.S. at 87 (involving conflict preemption issues);        see            Ingersoll-Rand                            Co., 498 U.S. at 144 (finding that exclusive                                        -58-                                         58            federal remedy "is precisely the kind of special feature that            warrants pre-emption" (internal quotation marks, alterations,            and citations omitted)). The manufacturers' implied preemption            arguments essentially identify into two purported "special            features" in the federal statutes warranting preemption: (1) an            asserted "balance of national interests" effected by the FCLAA            and Smokeless Tobacco Act, and (2) the detailed and stringent            statutory provisions for confidential reporting and protection            of ingredient information.                           a.  Balance of National Interests?                      As indicated above, the FCLAA contains explicit            language setting forth its policy and purpose:                      It is the policy of the Congress, and the                      purpose of this chapter, to establish a                      comprehensive Federal program to deal with                      cigarette labeling and advertising with                      respect to any relationship between                      smoking and health, whereby --                           (1) the public may be adequately                      informed about any adverse health effects                      of cigarette smoking by inclusion of                      warning notices on each package of                      cigarettes; and                           (2) commerce and the national                      economy may be (A) protected to the                      maximum extent consistent with this                      declared policy 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. S 1331.                                            31.  Although the Smokeless Tobacco Act does not contain a            S 1331 counterpart, the smokeless tobacco manufacturers seek to            avail themselves of arguments related to this section because                                        -59-                                         59                      The manufacturers' implied preemption arguments rely            heavily on select phrases from S 1331 and on certain language            in our pre-Cipollone decision, Palmer v. Liggett Group, Inc.,            in which we held that the FCLAA impliedly preempted state            common-law causes of action based on failure-to-warn theories.            See 825 F.2d at 626. In   Palmer, we expansively interpreted            S 1331 and declared that, in passing the FCLAA, Congress sought            "to strike a fair, effective balance between . . . two            competing interests": "health protection (through education)            and trade protection." Id. at 626. We observed, "Congress ran            a hard-fought, bitterly partisan battle in striking the            compromise that became the [FCLAA]. It is inconceivable that            Congress intended to have that carefully wrought balance of            national interests superseded by the views of a single state .            . . ."  Id. We further quoted favorably the Third Circuit's            assertion in                         Cipollone, prior to Supreme Court review, that the            FCLAA "'presents a carefully drawn balance between the purposes            of warning the public of the hazards of cigarette smoking and            protecting the interests of [the] national economy.'"     Id.            (quoting Cipollone v. Liggett                                           Group,                                                  Inc., 789 F.2d 181, 187            (3d Cir. 1986)) (alteration ours). It now appears, however,                                            of the similar substantive provisions in the two statutes.            Because a statute's substantive provisions carry out its            purpose, they argue, Congress must have intended the same            polices and purposes to animate the two statutes. For the sake            of argument, we accept their contention that the same pertinent            purposes animate the two statutes.                                        -60-                                         60            that in Palmer we overstated Congress' purposes evinced in            S 1331.                      On review of the Third Circuit's                                                      Cipollone opinions,            the Supreme Court acknowledged the S 1331-based "protection of            national economy" theory, quoting the same phrase we quoted in            Palmer when reviewing the prior proceedings of the case.  See            Cipollone, 505 U.S. at 511.  None of the court's opinions,            however, either affirmed or elaborated upon this theory.            Rather, a majority of the Court agreed that the two purposes            expressed in S 1331 were "(1) adequately informing the public            [of any adverse health effects of smoking                                                    ], and (2) protecting            the national economy  from                                          the                                               burden                                                      imposed                                                               by                                                                   diverse,            nonuniform,                         and                             confusing                                       cigarette                                                 labeling                                                          and                                                               advertising            regulations." 505 U.S. at 514 (emphasis added). Therefore,            when faced squarely with the opportunity, the majority            recognized neither a statutory purpose to protect the tobacco            industry from all state-imposed commercial burdens, nor some                                            32.  The Third Circuit produced a number of published opinions            for the Cipollone case. Although the Supreme Court discussed            the Court of Appeals' opinion published at 789 F.2d 181 (1986),            it accepted review of the case published at 893 F.2d 541            (1990).            33.  The Court also cited   Palmer as an example of a case            following the Third Circuit's analysis in Cipollone, 789 F.2d            181.  See Cipollone, 505 U.S. at 508 n.2.            34.  We modify the Court's language here in light of the 1984            amendment to S 1331(1) reflecting the new rotating warning            system.                                         -61-                                         61            overarching "balance" from which an expansive domain of            preemption might flow.                      The Court's evident rejection of the lower court's            "balance of national interests theory" is reflected in the            Court's refusal to engage in an implied preemption analysis            even as to those claims not expressly preempted. Had the Court            been inclined to recognize and give preemptive effect to the            asserted balance, it might have found preempted the surviving            failure-to-warn and fraudulent misrepresentation claims which,            if successful, would certainly inflict a burden upon the            tobacco trade. Instead, the Court recognized the limited            purpose of avoiding the burden on the national economy            specifically posed by nonuniform labeling and advertising            regulations.  Moreover, the Court indicated that Congress                                            35.  As indicated earlier, the                                           Cipollone Court did not address            the CSEA and its amendments to the FCLAA. We see no reason,            however, why the CSEA would change the Court's interpretation            of the text of S 1331(2), which has never been amended,            regarding the nature of the burden to the national economy            sought to be avoided under the FCLAA. While the CSEA            necessarily furthers the congressional purposes expressed in            S 1331, nothing in the 1984 amendments suggests that it alters            the scope of the protected interest expressed in S 1331(2), as            interpreted by the Court in Cipollone.            36.  At this point, we will not speculate as to the nature and            character of the burden created should other states impose            differing reporting requirements.  See English 496 U.S. at 90            (finding certain imagined prospects "simply too speculative a            basis on which to rest a finding of pre-emption"). Although            the cigarette manufacturers cite dozens of pending tobacco-            disclosure bills in state legislatures, even if we assume the            bills will become law, see Minn. H.F. 117 S 5, the resulting            burden is qualitatively different, and seemingly significantly            lesser, than that created by varying warning requirements in                                        -62-                                         62            addressed this concern largely, if not solely, through the            express preemption clause, which we have addressed above. See            Cipollone, 505 U.S. at 514; see also S. Rep. No. 91-566, 1970            U.S.C.C.A.N. at 2663 (explaining that preemption clause was            necessary "to avoid the chaos created by a multiplicity of            conflicting [cigarette advertising] regulations").                      We cannot ignore the                                           Cipollone majority's reading of            the congressional purpose evinced in S 1331, which is            considerably more limited than our enunciation in Palmer and            the manufacturers' current contentions. Given the Court's            narrower interpretation, we conclude that the Disclosure Act            does not impede either purpose expressed in S 1331 because it            neither obstructs the congressionally mandated warning labels,            nor (for the reasons expressed previously) impedes the national            economy by imposing a diverse or nonuniform advertising            regulation. Although S 1331 may express some general concern            for protecting commerce and the national economy, we will not            find preemption where a state law merely creates some general            tension with a federal law's abstract objectives.         See            Commonwealth Edison Co.                                   v.                                       Montana, 453 U.S. 609, 633-34 (1981)            (finding no "congressional intent to pre-empt all state            legislation that may have an adverse impact on the use of coal"            despite general national policy to encourage use of coal);                                            the production of labels and advertising for each product and            brand.                                        -63-                                         63            Laurence H. Tribe,                               American Constitutional Law                                                          S 6-26, p. 487-            88 (2d ed.) (1988). Indeed, had Congress intended to protect            the tobacco industry from negative state action generally, then            surviving police regulations, such as prohibitions on smoking            in public buildings or on tobacco use by minors, or state            taxation, would also be preempted.  See S. Rep. 91-566, 1970            U.S.C.C.A.N. at 2663.                      Having found that the purported general national            policy does not yield a special statutory feature that warrants            preemption, we turn to specific statutory provisions with which            the Disclosure Act allegedly conflicts. Cf.                                                         Montana, 453 U.S.            at 634.                           b. Conflict with Federal Reporting Provisions?                      The manufacturers contend that the Disclosure Act            conflicts with, and effectively "repeals," Congress' carefully            wrought ingredient reporting scheme. They argue that the            federal anonymity and confidentiality protections show            congressional intent to oust state laws such as the Disclosure            Act, which demand product-specific and brand-specific            information without protection of confidentiality. Normally,            however, state laws are not preempted "'solely because they            impose liability over and above that authorized by federal            law.'" English, 496 U.S. at 89 (quoting                                                     California v.                                                                   ARC Am.            Corp., 490 U.S. 93, 105 (1989)). Rather, we must find "some            specific suggestion in the text or legislative history" of the                                        -64-                                         64            allegedly preempting federal law to conclude that Congress            intended to preempt additional state liabilities.  Id.                      On their face, the FCLAA and Smokeless Tobacco Act do            not protect generally the confidentiality of tobacco-industry            ingredient information. Rather, they secure only "information            provided to the Secretary under [the reporting provisions]."            15 U.S.C. SS 1335a(b)(2)(A), 4403(b)(2)(A). By like token, the            provisions mandating the Secretary to establish confidentiality            procedures, while notable for their specificity, apply only to            the information provided to her under the statutes.       See            SS 1335a(b)(2)(C), 4403(b)(2)(C). Furthermore, as the            manufacturers concede, the statutes do not confer "trade            secret" or "confidential" status upon the information, but only            "treat[]" it as such.  Id.                      While the statutes strictly forbid unauthorized            disclosure, the proscriptions govern the conduct of only            certain federal officers or employees. For example, the laws            bestow upon the collected information the benefit of the trade            secrets exemption in the Freedom of Information Act ("FOIA").            See 5 U.S.C. S 552(b)(4). The FOIA, however, by its own terms,            applies only to federal executive branch agencies.     See 5            U.S.C. SS 551(1), 552(a). Thus, HHS employees and other            federal employees need not make publicly available the                                            37.  The proscriptions against disclosure are subject to any            request by a congressional committee or subcommittee.  See 15            U.S.C. SS 1335a(b)(2)(B), 4403(b)(2)(B).                                        -65-                                         65            collected information under the FOIA, but the exemption would            not inhibit the conduct of state agencies possessing such            information, which are not governed by the FOIA in the first            instance. The FCLAA further indicates Congress' strong intent            to ensure the confidentiality of the collected information by            incorporation of 18 U.S.C. S 1905, which criminalizes            unauthorized disclosure of confidential or trade secret            information. Again, section 1905 itself applies only to "an            officer or employee of the United States or of any department            or agency thereof" and certain other persons not implicated            here.  Id.                      Moreover, the legislative histories referencing the            reporting provisions make little or no mention of the ancillary            confidentiality protections and certainly do not reveal any            intent generally to safeguard industry ingredient-information            outside of the lists provided to the Secretary. With regard to            the reporting provision in the CSEA, House Report 805            accompanying the CSEA explains only that it "would permit the            federal government to initiate the toxicologic research            necessary to measure any health risk posed by additives and            other ingredients to cigarettes during the manufacturing            process." H.R. Rep. No. 98-805, at 21, 1984 U.S.C.C.A.N. at            3734. Senate Report 209 accompanying the Smokeless Tobacco Act            states only that the provision "is included to further the            accumulation of knowledge about the health risks of smokeless                                        -66-                                         66            tobacco use, particularly the possible hazards of substances            added to tobacco to enhance flavor and for other purposes." S.            Rep. No. 99-209 at 14, 1986 U.S.C.C.A.N. p. 13. The reports            neither discuss nor elaborate upon the purpose of the            confidentiality protections.                      The textual and historical indications lead to the            conclusion that Congress primarily intended the reporting            provisions in the FCLAA and Smokeless Tobacco Act to further            toxicological research. By "treat[ing]" the collected            information as a "trade secret" or "confidential," the statutes            further the primary research objective in a meaningful, but            limited, way: facilitating ready access to the ingredient            information required for research purposes by assuring the            tobacco industry that any trade secret interests in the            information provided to the Secretary will be safeguarded.                                                                      In            our view, the fact that Congress took great care to safeguard            reported ingredient information at most indicates that Congress            presumed the information's confidential nature for the purposes            of its regime. Perhaps Congress even assumed that there was no            question as to the trade secret status of the ingredient            information. Underlying assumptions, however, do not merit            preemptive force; legislative enactments do. Our review of the                                            38.  Furthermore, the mere fact that Congress found an            aggregate form of ingredients disclosure sufficient for its            purposes is no indication that increased state requirements            would conflict with its own scheme.                                        -67-                                         67            statutory text and legislative history does not yield the            requisite clear and manifest congressional intent to speak            nationally and finally on the general confidential status of            tobacco-product ingredients.                      Thus, while Congress proceeded expeditiously with its            health research objectives by treating the ingredient            information as a trade secret, it did not thereby preempt            States from otherwise lawfully obtaining (or attempting to            obtain) such information. Moreover, that Congress did not            intend through the FCLAA and Smokeless Tobacco Act nationally            to protect all tobacco-product ingredients information does not            necessarily force the manufacturers to reveal their purported            trade secrets. The manufacturers may well have valid trade            secret interests that are threatened by the Disclosure Act.            The actual merit of any trade secret claim, however, is not            before us now, and we are not at liberty to speculate as to the                                            39.  We are thus unpersuaded by the manufacturers' citation of            isolated bits of hearing testimony referring to the CSEA's            protection of "trade secret" ingredient information.                                                                 See                                                                     e.g.,            130 Cong. Rec. 24,626 (1984). Such statements, while            indicative of Congress' intent to protect the presumed            confidential status of the information provided to the            Secretary, do not reveal a purpose to grant tobacco-product            manufacturers nationwide immunity from state attempts to obtain            and publicize ingredient information.                                                  Cf.                                                      Mortier, 501 U.S. at            614-15 (finding no actual conflict where frustration of            purported federal purpose relied on "little more than snippets            of legislative history and policy speculations").                                        -68-                                         68            resolution of the issue.  Cf.                                          CSX Transp., Inc.                                                           v.                                                               Easterwood,            507 U.S. 658, 675 n.12 (1993) (after finding no preemption,            refusing to speculate as to outcome of state law action).                      The manufacturers insist that enforcement of the            Disclosure Act will circumvent or otherwise nullify federal law            because it potentially allows widespread access to information            that, when in the federal government's hands, would not be            publicly available. Having found, however, that national            trade-secret protection of ingredient information is neither a            feature nor an objective of the statutes, the state law does            not "nullify" the federal confidentiality protections because            the information submitted under the federal regime itself is            not affected by it. In other words, enforcement of the            Disclosure Act neither directly nor indirectly allows access to            the information in the HHS's possession. Moreover, because the            Disclosure Act leaves completely unaffected the requirements,            procedures, and programs of the FCLAA and Smokeless Tobacco            Act, it does not interfere with the methods by which Congress            sought to reach its research and public-education goals.  Cf.            Ouellette, 479 U.S. at 494 (finding preempted state common-law            water pollution action which would impermissibly circumvent the            Clear Water Act's permit system, the method by which federal            statute was designed to eliminate water pollution);  Wood v.                                            40.  From our review of the manufacturers' complaints, it            appears that the merits of any trade secret claims underlie            their takings and full faith and credit claims.                                        -69-                                         69            General                      Motors                              Corp., 865 F.2d 395, 412 (1st Cir. 1988)            (finding preempted negligence lawsuit for failure to install            automobile air bag where claim would interfere with Congress'            scheme to subordinate the states' role in establishing safety            standards where pertinent federal standard exists).                      The manufacturers seek solace in Hyde Park Partners            v. Connolly, 839 F.2d 837 (1st Cir. 1988), involving the            preemptive effect of the Williams Act, the sole purpose of            which is "the protection of investors confronted with a tender            offer."   Id. at 849. The Williams Act requires takeover            bidders to disclose their acquisition of a 5% stake in a            corporation within ten days                                        after the acquisition,                                                               id. at 851,            whereas the state law at issue penalized takeover bidders who            failed to disclose their intent before acquiring a 5% stake,            id. at 840. We explained that the Williams Act struck a            temporal balance "to provide shareholders with the best of both            worlds -- disclosure substantial enough and early enough to            ensure fully informed choices, but not so early that those            choices will be unduly restricted by the chilling effect on            takeover bids." Id. at 852. We held that the state law, which            would likely "discourage takeover attempts to a much greater            extent than that envisioned by Congress" to the detriment of            investors, would intrude upon the federal law's careful "point            of equipoise" and defeat the law's "essential purpose."  Id.                                         -70-                                         70                      The manufacturers contend that, here, Congress            carefully chose a "point of equipoise" between ingredient            reporting and confidentiality, which the Disclosure Act            impermissibly alters. We disagree. First, unlike the temporal            public-disclosure balance in                                         Hyde Park                                                 , the purported "point of            equipoise" itself is not directly disturbed because the            Disclosure Act has no effect on the federal laws' collection            and safeguarding efforts with respect to the information            provided to the Secretary. Second, even assuming the state law            somehow altered the purported balance, "[u]nder                                                            Hyde Park                                                                    , the            question is not whether a congressionally calibrated system is            altered by state law, but   if                                              altered,                                                       whether                                                                the                                                                     change            obstructs the purpose of Congress                                            ." Associated Indus. of Mass.            v. Snow, 898 F.2d 274, 282 (1st Cir. 1990) (emphasis added).            Here, the controlling purpose of the reporting provisions,            which the confidentiality provisions further, is to permit            toxicological research to determine the health risks of            additives. See H.R. Rep. No. 98-805, at 21, 1984 U.S.C.C.A.N.            at 3734; S. Rep. No. 99-209 at 14, 1986 U.S.C.C.A.N. p. 13.            Any alterations to the "balance" between reporting and            confidentiality posed by the Disclosure Act would not frustrate            this purpose. Rather, if the manufacturers' trade secret and            other claims ultimately fail and the ingredient information            that the Disclosure Act mandates becomes public knowledge, the            state law arguably would further Congress' purpose.                                        -71-                                         71                      Finally, we find no evidence that Congress intended            to effect national "uniformity" in ingredient reporting and            disclosure regulations. In  Wood, both the statutory language            and legislative history indicated Congress' intent to effect            uniform federal motor-vehicle safety standards throughout the            country.  See 865 F.2d at 412;  see  also Rini v. United                                                                       Van            Lines, Inc.                      , 104 F.3d 502, 504 (1st Cir. 1997) (explaining that            "the principal purpose of the [Carmack] Amendment was to            achieve national uniformity in the liability assigned to            carriers"), petition for cert. filed, 65 U.S.L.W. 3422 (U.S.            Mar. 28, 1997) (No. 96-1800). In this case, while the            statutory language and legislative history show that Congress            plainly intended to effect uniform labeling and warning            requirements,                          see 15 U.S.C. SS 1331, 1333, 1334, 4402, 4406(b),            no such intent regarding ingredient disclosure is apparent.            Had Congress desired similar uniformity in reporting and            disclosure efforts, it plainly knew how to accomplish that end.            The fact remains, however, that it did not.                      In sum, the reporting provisions protect only the            particular information provided to the HHS while in the hands            of HHS employees, and only from disclosure by HHS or certain            federal government employees. Congress considered the                                            41.  We note the observation that a congressional determination            to effect a nationally uniform standard presents "a situation            similar in practical effect to that of federal occupation of a            field." Tribe,  supra S 6-26, at 486.                                        -72-                                         72            submission of aggregate and anonymous ingredient information            sufficient for its research purposes, and, to be sure, intended            to safeguard the confidentiality of the information once            provided. Although Congress apparently accepted any claim to            the trade secret status of tobacco industry ingredient-            information, it did not intend to immunize manufacturers            nationally from any additional reporting or disclosure            requirements, or to prevent the public from becoming aware of            such information other than that particularly provided to the            HHS under the federal schemes. While enforcement of the            Disclosure Act may ultimately make the confidentiality            protections somewhat redundant, it does not frustrate the            controlling congressional purpose to initiate toxicological            research on the effects of tobacco-product additives. In light            of the strong presumption against preemption of state health-            and-safety regulations that governs our analysis, we find that            the federal statutes' provisions to protect the confidentiality            of tobacco-product ingredient information do not constitute a            "special feature" overcoming that presumption.  See  English,            496 U.S. at 72; Snow, 898 F.2d at 282.                      4.  Field Occupation                      Having found no actual conflict between the federal            laws and the Disclosure Act, we turn to the argument that the            Disclosure Act nonetheless treads upon an exclusive federal            regulatory domain. "'Where . . . the field which Congress is                                        -73-                                         73            said to have pre-empted' includes areas that have 'been            traditionally occupied by the states,' congressional intent to            supersede state laws must be '"clear and manifest."'"                                                                  English,            496 U.S. at 79 (quoting Jones v.  Rath                                                    Packing                                                            Co., 430 U.S.            519, 525 (1977)) (in turn quoting  Rice v. Santa                                                              Fe                                                                  Elevator            Corp., 331 U.S. at 230).                      It is evident that the FCLAA and Smokeless Tobacco            Act preempt state regulation in the area of tobacco-product            labeling and warnings. The statutes do not purport, however,            to regulate exclusively all other aspects of tobacco-product            use or sales.   While the reporting provisions address            ingredient collection and safekeeping "in considerable detail,"            id., those provisions simply further the statutory goal of            toxicological research on the part of HHS, with a view toward            potential additional federal regulatory action. Although the            federal scheme is in some respects comprehensive, it is not            "'so pervasive as to make reasonable the inference that            Congress left no room for the States to supplement it.'"            Mortier, 501 U.S. at 613 (quoting                                              Rice, 331 U.S. at 230).  See            id. (explaining that while Federal Insecticide, Fungicide, and            Rodenticide Act had evolved into a "comprehensive regulatory            statute," it contains "ample room" for supplemental state                                            42.  Although the statutes also contain provisions to further            health education through research, we find no indication that            Congress intended to oust supplemental state efforts in this            regard as well.                                        -74-                                         74            efforts); Tart v. Massachusetts, 949 F.2d 490, 501 (1st Cir.            1991) (preserving state law prohibition on permitless landing            of raw fish in state because federal fishing licensing statute,            which authorizes the navigation and taking of fish from state            territorial waters, does not "occupy the field" of coastal            fishing).                      Nor can the manufacturers maintain that the            Disclosure Act treads upon the preempted domain of labeling and            advertising. On this point, the Court's analysis in                                                                English is            instructive. In   English, respondent argued that a federal            provision forbidding retaliation for making a nuclear-safety            complaint was an integral part of the preempted field of            nuclear safety, and thus, state law remedies for conduct            covered under the federal retaliation provision were preempted.            See 496 U.S. at 82. The Court disagreed, acknowledging that            while the federal provision "obviously bears some relation to            the field of nuclear safety, its 'paramount' purpose was the            protection of employees."   Id. at 83. Moreover, while the            state law "in some remote way may [have] affect[ed] . . .            nuclear safety decisions made by those who build and run            nuclear facilities," it did not fall within the preempted realm            because it did not have a "direct and substantial effect" on            the decisionmakers.  Id. at 85.                      Here, while the federal reporting provisions bear            some relation to the field of labeling and advertising, their                                        -75-                                         75            "paramount purpose" is to initiate toxicological research into            the health hazards posed by additives. It would be            speculative, at best, to envision how the manufacturers'            reporting obligations to the Massachusetts Department of Public            Health under the Disclosure Act might have a remote effect,            much less a direct and substantial one, on federal efforts in            the area of labeling and advertising.  Cf. Schneidewind, 485            U.S. at 308 ("Of course, every state statute that has some            indirect effect on [a preempted realm] is not pre-empted.").                      Thus, we find no indication in the federal statutes            that Congress intended to supplant any and all state            involvement in the area of tobacco-product ingredient            collecting, monitoring, and review. In the absence of such            indication, the mere detail by which the statutes collect and            safeguard ingredient information is insufficient to establish            a "clear and manifest" intent on the part of Congress to            supersede state laws, English, 496 U.S. at 79, or otherwise            overcome the presumption against preemption, see Hillsborough            County, 471 U.S. at 715. "Given this statutory scheme, it is            for Congress to rethink the division of regulatory authority in            light of its possible exercise by the States to undercut a            federal objective." Pacific Gas & Electric                                                      v.                                                          Energy Resources            Comm'n, 461 U.S. 190, 223 (1983).                                            43.  The cigarette manufacturers also assert that the            Disclosure Act is not a matter of "local concern" because it            addresses an issue of national significance as to which                                        -76-                                         76                                         V.                                     Conclusion                      Although Congress sought through the FCLAA and the            Smokeless Tobacco Act to achieve several goals on the subject            of tobacco-product use and health, preventing states from            obtaining information regarding product additives and            disclosing such information to the public was not one of them.            Congress is free, of course, to enact legislation to bar the            operation of laws such as the Disclosure Act. We are            satisfied, however, that it has not done so yet, and "[t]he            courts should not assume the role which our system assigns to            Congress."  Pacific Gas & Electric, 461 U.S. at 223.                      For the foregoing reasons, we  affirm the district            court's ruling that the Massachusetts Disclosure Act survives            the manufacturers preemption challenge.  Costs to Appellees.                                            Massachusetts has no special or unique interest and that, by            its very nature, it will necessarily have nationwide impact            thereby contradicting a policy decision made for the nation by            Congress. To the extent this argument touches upon the            "balance of national interests" theory, we have disposed of            that above for the purposes of preemption analysis. To the            extent the argument touches upon any Commerce Clause claims,            see generally Hyde Park, 825 F.2d at 843-48, the issue is not            properly before us here.                                        -77-                                         77                                     Appendix A            In its entirety, the Massachusetts Disclosure Act provides:            S 307B. Manufacture of tobacco products; annual reports            including added constituents and nicotine yield ratings;            disclosure; exclusions                      For the purpose of protecting the public health, any            manufacturer of cigarettes, snuff or chewing tobacco sold in            the commonwealth shall provide the department of public health            with an annual report, in a form and at a time specified by            that department, which lists for each brand of such product            sold the following information:            (a) The identity of any added constituent other than tobacco,            water or reconstituted tobacco sheet made wholly from tobacco,            to be listed in descending order according to weight, measure,            or numerical count; and            (b) The nicotine yield ratings, which shall accurately predict            nicotine intake for average consumers, based on standards to be            established by the department of public health.                      The nicotine yield ratings so provided, and any other            such information in the annual reports with respect to which            the department determines that there is a reasonable scientific            basis for concluding that the availability of such information            could reduce risks to public health, shall be public records;            provided, however, that before any public disclosure of such            information the department shall request the advice of the            attorney general whether such disclosure would constitute an            unconstitutional taking of property, and shall not disclose            such information unless and until the attorney general advises            that such disclosure would not constitute an unconstitutional            taking.                      This section shall not require a manufacturer, in its            report to the department or otherwise, to identify or disclose            the specific amount of any ingredient that has been approved by            the Food and Drug Administration, Public Health Service, United            States Department of Health and Human Services ("FDA"), or its            successor agency, as safe when burned and inhaled or that has            been designated by the FDA, or its successor agency, as            generally recognized as safe when burned and inhaled, according            to the Generally Recognized As Safe list of the FDA.            Mass. Gen. Laws ch. 94, S 307B.                                        -78-                                         78
