                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1520
                        ___________________________

   St. Louis Effort For AIDS; Planned Parenthood of the St. Louis Region and
Southwest Missouri; Consumers Council of Missouri; Missouri Jobs With Justice;
  Jeanette Mott Oxford; Dr. Wayne Letizia; Dr. William Fogarty; Chris Worth

                       lllllllllllllllllllll Plaintiffs - Appellees

                                           v.

  Director John M. Huff, in his official capacity as the Director of the Missouri
  Department of Insurance, Financial Institutions and Professional Registration

                      lllllllllllllllllllll Defendant - Appellant

                             ------------------------------

                    Missouri Association of Insurance Agents

                  lllllllllllllllllllllAmicus on Behalf of Appellant

            AARP; Sargent Shriver National Center on Poverty Law

                   lllllllllllllllllllllAmici on Behalf of Appellees
                                        ____________

                    Appeal from United States District Court
              for the Western District of Missouri - Jefferson City
                                ____________

                           Submitted: January 14, 2015
                              Filed: April 10, 2015
                                 ____________
Before RILEY, Chief Judge, BEAM and COLLOTON, Circuit Judges.
                              ____________

RILEY, Chief Judge.

      St. Louis Effort for AIDS, Planned Parenthood of the St. Louis Region and
Southwest Missouri (Planned Parenthood) (collectively, appellees), and a number of
other individuals and entities brought this facial challenge to Missouri’s Health
Insurance Marketplace Innovation Act (HIMIA), Mo. Rev. Stat. § 376.2000 et seq.
The plaintiffs sought a preliminary injunction, claiming certain portions of the HIMIA
are preempted by federal law, violate the First Amendment to the United States
Constitution, and are void for vagueness under the Due Process Clause of the
Fourteenth Amendment. Enjoining the HIMIA in its entirety, the district court held
the appellees—but not the other named plaintiffs—were likely to succeed on the
merits of their preemption claim. John Huff, in his capacity as Director of the
Missouri Department of Insurance, Financial Institutions and Professional
Registration, appeals. We affirm in part and otherwise vacate the preliminary
injunction and remand the case to the district court.1

I.    BACKGROUND
      The Patient Protection and Affordable Care Act (ACA) created “navigators”—
individuals who assist consumers in purchasing health insurance from state and
federal health care exchanges. See 42 U.S.C. § 18031(i). The ACA granted the
Secretary of the United States Department of Health and Human Services (HHS) the
power to “establish standards for navigators,” id. § 18031(i)(4)(A), and more
generally, to “issue regulations setting standards for . . . the establishment and
operation of Exchanges,” id. § 18041(a)(1)(A). HHS regulations recognize three
categories of individuals who facilitate enrollment in exchanges: federal navigators,

      1
       Judge Colloton joins all but Part II.A.1 of this opinion.
                                         -2-
certified application counselors (CACs), and non-navigator assistance personnel.2 See
45 C.F.R. §§ 155.210, 155.215, 155.225. Because the primary goal of both federal
navigators and CACs is to facilitate enrollment in exchanges, they conduct many of
the same activities. Compare 42 U.S.C. § 18031(i)(3), and 45 C.F.R. § 155.210(e),
with 45 C.F.R. § 155.225(c). Still, federal navigators have a more extensive set of
duties than CACs, and only federal navigators receive federal monetary grants. See
42 U.S.C. § 18031(i)(1), (3). The appellees are both federally certified as counselor
designated organizations and employ individuals working as CACs.3

        Acting under the ACA, the federal government established a Federally-
facilitated Exchange (FFE) in Missouri, and federal navigators and CACs assist in the
operation of this exchange. The Missouri legislature enacted the HIMIA to regulate
“person[s] that, for compensation, provide[] information or services in connection
with eligibility, enrollment, or program specifications of any health benefit exchange


      2
       Non-navigator assistance personnel exist only in states operating their own
health care exchanges. See 42 U.S.C. § 18031(a); 45 C.F.R. § 155.215(a). Because
Missouri has not created an exchange, non-navigator assistance personnel are not
involved here.
      3
        The district court found the appellees “are Counselor Designated
Organizations, CACs, and Navigators under the ACA.” This finding is clearly
erroneous. See Goss Int’l Corp. v. Man Roland Druckmaschinen Aktiengesellschaft,
491 F.3d 355, 362 (8th Cir. 2007) (explaining that when reviewing “the issuance of
a preliminary injunction . . . [w]e review the District Court’s material factual findings
for clear error” (quotation omitted)). The complaint explicitly asserts the appellees
are “Counselor Designated Organizations”—which must comply with the federal
standards governing CACs, see 45 C.F.R. § 155.225(b)(1)(i). There is no suggestion
in the complaint that either organization received a federal grant, a defining
characteristic of federal navigators, see 42 U.S.C. § 18031(i)(1), and neither
organization employs individuals working as federal navigators. Absent evidence to
support the district court’s finding that these entities are federal navigators, we limit
the scope of our preemption inquiry to CACs and consider only those federal laws and
regulations applicable to CACs.
                                          -3-
operating in [Missouri].”4 Mo. Rev. Stat. § 376.2000.2(4). The HIMIA includes
licensing provisions, see, e.g., id. §§ 376.2004, 376.2006, and regulatory provisions,
see, e.g., id. §§ 376.2002, 376.2008. The regulatory provisions dictate what state
navigators can do, see, e.g., id. § 376.2002.2, and more relevant to this appeal, what
state navigators cannot do unless they are also licensed insurance producers, see, e.g.,
id. § 376.2002.3. The HIMIA also includes a remedial provision, allowing Huff to
impose restrictions on a state navigator’s license or levy a fine of up to $1000 for
certain misconduct “or for other good cause.” Id. § 376.2010.1.

      The appellees brought the current suit seeking to enjoin preliminarily the
HIMIA before its enforcement. The appellees challenged several specific HIMIA
provisions, including: the definition of state navigators, see id. § 376.2000.2(4); three
“substantive provisions,” see id. §§ 376.2002.3(3), (5), 376.2008; and the “remedial
provision,” see id. § 376.2010.1.

       The district court granted the preliminary injunction, stopping the HIMIA’s
enforcement against federal navigators and CACs. Applying the familiar four-part
test for preliminary injunctions, see Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d
109, 113 (8th Cir. 1981), the district court found the appellees were likely to succeed
on the merits5 because the ACA preempts the HIMIA. The district court reasoned:




      4
       All individuals within the HIMIA’s scope are also called “navigators.” See
Mo. Rev. Stat. § 376.2000.2(4) (defining “Navigator”). To avoid confusion, we refer
to the broadly defined Missouri navigators as “state navigators,” recognizing this
phrase encompasses both federal navigators and CACs.
      5
        As for the other named plaintiffs, the district court found it “ha[d] no basis for
believing the other Plaintiffs [were] likely to demonstrate HIMIA imposes any
restrictions or requirements upon them. The Court therefore conclude[d] the other
Plaintiffs ha[d] not demonstrated they [were] likely to succeed on the merits.”
                                           -4-
      [T]he Court is of the view that any attempt by Missouri to regulate the
      conduct of those working on behalf of the FFE is preempted. . . .
      Missouri has opted not to be in the health insurance exchange business.
      Having made the choice to leave the operation of the exchange to the
      federal government, Missouri cannot choose to impose additional
      requirements or limitations on the exchange. Doing so frustrates
      Congress’ purpose of having HHS operate FFEs in states where no
      exchange exists.

Finding the other three prongs of the preliminary injunction test also favored the
appellees, the district court issued the injunction “preliminarily enjoin[ing]” Huff
“from enforcing HIMIA.” Huff appeals, challenging the district court’s conclusion
that the appellees were likely to succeed on the merits. We affirm the district court’s
order enjoining the HIMIA’s enforcement against CACs as to the three challenged
substantive provisions—Mo. Rev. Stat. §§ 376.2002.3(3), (5) and 376.2008—but
reverse to the extent the order applies to federal navigators or any other portion of the
HIMIA.

II.    DISCUSSION
       When granting a preliminary injunction, district courts apply “‘a flexible
consideration of (1) the threat of irreparable harm to the moving party; (2) balancing
this harm with any injury an injunction would inflict on other interested parties;
(3) the probability that the moving party would succeed on the merits; and (4) the
effect on the public interest.’” Minn. Citizens Concerned for Life, Inc. v. Swanson,
692 F.3d 864, 870 (8th Cir. 2012) (en banc) (quoting Planned Parenthood Minn.,
N.D., S.D. v. Rounds, 530 F.3d 724, 729 n.3 (8th Cir. 2008) (en banc)). “The decision
to grant or deny a preliminary injunction rests within the discretion of the district court
and will not be disturbed on appeal absent a showing of abuse of discretion.” United
States v. Gannaway, 536 F.2d 784, 786 (8th Cir. 1976). “When purely legal questions
are presented, however, this court owes no special deference to the district court,”
Lankford v. Sherman, 451 F.3d 496, 504 (8th Cir. 2006), and we review “its legal
conclusions de novo,” Goss, 491 F.3d at 362.

                                           -5-
       A.     Preemption
       “The general law of preemption is grounded in the Constitution’s command that
federal law ‘shall be the supreme Law of the Land.’” In re Aurora Dairy Corp.
Organic Milk Mktg. & Sales Practices Litig., 621 F.3d 781, 791 (8th Cir. 2010)
(quoting U.S. Const. art. VI, cl. 2). “Congress does not cavalierly pre-empt state-law
causes of action.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). “‘In the interest
of avoiding unintended encroachment on the authority of the States, . . . a court
interpreting a federal statute pertaining to a subject traditionally governed by state law
will be reluctant to find pre-emption.’” Heart of Am. Grain Insp. Serv., Inc. v. Mo.
Dep’t of Agric., 123 F.3d 1098, 1103 (8th Cir. 1997) (quoting CSX Transp., Inc. v.
Easterwood, 507 U.S. 658, 663-64 (1993)). We thus will not find a law preempted
unless it “‘was the clear and manifest purpose of Congress,’” which “‘may be
indicated through a statute’s express language or through its structure and purpose.’”
Aurora Dairy, 621 F.3d at 792 (quoting Medtronic, 518 U.S. at 485, and Altria Grp.,
Inc. v. Good, 555 U.S. 70, 76 (2008)).

        “Because the [ACA] contains an express preemption clause, we focus in the
first instance on the plain language of the statute, because it ‘necessarily contains the
best evidence of Congress’ pre-emptive intent.’” Chapman v. Lab One, 390 F.3d 620,
625 (8th Cir. 2004) (quoting CSX Transp., 507 U.S. at 664). Section 18041(d) of
Title 42—titled “No interference with State regulatory authority”—states, “Nothing
in this title shall be construed to preempt any State law that does not prevent the
application of the provisions of this title.” This preemption clause is a narrow one,
and only those state laws that “hinder or impede” the implementation of the ACA run
afoul of the Supremacy Clause. Black’s Law Dictionary 1226 (8th ed. 2004) (defining
“prevent”).

       The district court ignored § 18041(d)’s limited preemptive effect. After
invalidating the licensing requirements in Mo. Rev. Stat. §§ 376.2002.1, 376.2004,
and 376.2006—even though the appellees did not argue these provisions were


                                           -6-
preempted—and two of the three challenged substantive provisions, the district court
concluded “any attempt by Missouri to regulate” CACs and federal navigators was
preempted by the ACA. (Emphasis added). Based on this conclusion, the district
court held the ACA entirely preempts the HIMIA as it applies to federal navigators,
CACs, and counselor designated organizations and then enjoined the enforcement of
the HIMIA in total as to those individuals.

      In so doing, the district court may have overlooked a tenet of Missouri law:

              The provisions of every statute are severable. If any provision of
      a statute is found by a court of competent jurisdiction to be
      unconstitutional, the remaining provisions of the statute are valid unless
      the court finds the valid provisions of the statute are so essentially and
      inseparably connected with, and so dependent upon, the void provision
      that it cannot be presumed the legislature would have enacted the valid
      provisions without the void one; or unless the court finds that the valid
      provisions, standing alone, are incomplete and are incapable of being
      executed in accordance with the legislative intent.

Mo. Rev. Stat. § 1.140; see also id. § 376.2014.2 (“If any provision of [the HIMIA]
or its application to any person or circumstance is held invalid by a court of competent
jurisdiction or by federal law, the invalidity does not affect other provisions or
applications of [the HIMIA] that can be given effect without the invalid provision or
application. The provisions of [the HIMIA] are severable, and the valid provisions
or applications shall remain in full force and effect.”). Because the challenged
portions of the HIMIA operate independently of the remainder of the law, only those
provisions actually preempted should be invalidated.

       Examining only those HIMIA provisions the appellees directly challenge, see
Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (per curiam)
(explaining a preliminary injunction “must be narrowly tailored . . . to remedy only
the specific harms shown by the plaintiffs, rather than ‘to enjoin all possible breaches
of the law’” (quoting Zepeda v. INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983))), we find

                                          -7-
Mo. Rev. Stat. §§ 376.2002.3(3), (5) and 376.2008, as applied to CACs, are likely
preempted by federal law.6 We uphold the district court’s preliminary injunction only
as to these three provisions.

             1.     2014 Regulations
       On July 28, 2014, six months after the district court issued its order, new HHS
regulations became effective. These new regulations clarified the duties of CACs and
specifically addressed the scope of 42 U.S.C. § 18041(d)’s preemption clause as
applied to CACs. See 45 C.F.R. § 155.225(c), (d)(8); Patient Protection and
Affordable Care Act; Exchange and Insurance Market Standards for 2015 and
Beyond, 79 Fed. Reg. 30240, 30270-72 (May 27, 2014). Because the intervening
regulations are relevant to the current dispute, as a threshold matter, we consider the
new regulations’ applicability in this case.

       “‘That a statute shall not be given retroactive effect, unless such construction
is required by explicit language or by necessary implication, is a rule of general
application.’” Molina Jerez v. Holder, 625 F.3d 1058, 1076 (8th Cir. 2010) (quoting
United States v. St. Louis, S.F. & T. Ry. Co., 270 U.S. 1, 3 (1926)). But “[w]hen the
intervening statute authorizes or affects the propriety of prospective relief, application
of the new provision is not retroactive. . . . ‘[R]elief by injunction operates in futuro,’
and [] the plaintiff ha[s] no ‘vested right’ in the decree entered by the trial court.”

       6
        At oral argument, the appellees urged this court to enjoin the three substantive
provisions, see id. §§ 376.2002.3(3), (5), 376.2008; the remedial provision, see id.
§ 376.2010.1; the definition of state navigators, see id. § 376.2000.2(4); and the grant
of authority to navigators, see id. § 376.2002.2(2). Because the appellees “did not
raise [the definition and grant of authority] claims in their brief, those claims are
deemed abandoned.” Rang v. Hartford Variable Annuity Life Ins. Co., 908 F.2d 380,
383 (8th Cir. 1990); cf. United States v. Johnson, 710 F.3d 784, 787 n.1 (8th Cir.
2013) (declining to address appellee’s argument raised for the first time at oral
argument). The claim concerning the remedial provision was briefed and is discussed
in Part B, infra.

                                           -8-
Landgraf v. USI Film Prods., 511 U.S. 244, 273-74 (1994) (quoting Am. Steel
Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 201 (1921)); accord
Viacom Inc. v. Ingram Enter., Inc., 141 F.3d 886, 888-90 (8th Cir. 1998). Although
we examine regulations, not statutes, these same principles apply. See, e.g., United
States v. Santee Sioux Tribe of Neb., 324 F.3d 607, 615 n.4 (8th Cir. 2003) (applying
“newly-amended regulations” under Landgraf); Grove v. Fed. Bureau of Prisons, 245
F.3d 743, 747 (8th Cir. 2001) (citing Landgraf and considering intervening
regulations). Because the appellees seek only forward-looking injunctive relief, we
consider the 2014 regulations in rendering our decision.

       To the extent Huff claims HHS exceeded its authority to regulate when
promulgating the 2014 regulations, this argument is misplaced. In the ACA, Congress
delegated to HHS broad authority to “establish standards for navigators,” 42 U.S.C.
§ 18031(i)(4)(A), and to “issue regulations setting standards for . . . the establishment
and operation of Exchanges [and] such other requirements as the Secretary determines
appropriate,” id. § 18041(a)(1)(A), (D). As the Supreme Court has explained, its
“jurisprudence has been driven by a practical understanding that in our increasingly
complex society . . . Congress simply cannot do its job absent an ability to delegate
power under broad general directives.” Mistretta v. United States, 488 U.S. 361, 372
(1989) (citing Opp Cotton Mills, Inc. v. Admin. of Wage & Hour Div. of Dept. of
Labor, 312 U.S. 126, 145 (1941)). Given the wide discretion afforded HHS, it was
well within the Secretary’s authority to promulgate these particular regulations.

       That HHS had the authority to issue the regulations does not determine whether
the regulations can preempt the HIMIA. “[A]n agency regulation with the force of
law can pre-empt conflicting state requirements.” Wyeth v. Levine, 555 U.S. 555, 576
(2009). The 2014 regulation describing the duties of CACs, see 45 C.F.R.
§ 155.225(c)(1), is a legislative rule carrying the force of law and can preempt the
HIMIA. See Iowa League of Cities v. EPA, 711 F.3d 844, 873 (8th Cir. 2013); Drake



                                          -9-
v. Honeywell, Inc., 797 F.2d 603, 607 (8th Cir. 1986).7 Section 155.225(d)(8),
however, “simply state[s] what the administrative agency thinks the [ACA’s
preemption clause] means,” and thus is an interpretive rule that does “not have the
force of law.” Iowa League of Cities, 711 F.3d at 873 (quotations omitted).

        Yet despite Huff’s contentions to the contrary, we may accord § 155.225(d)(8)
some weight. See Geier v. Am. Honda Motor Co., 529 U.S. 861, 883 (2000). The
question of whether § 155.225(d)(8) is to be afforded deference falls squarely under
the reasoning of Wyeth. In Wyeth, the Supreme Court refused to defer to a statement
in the preamble of a Food and Drug Administration (FDA) regulation proclaiming that
its rules preempted state tort law, and the Court noted it had “not deferred to an
agency’s conclusion that state law is pre-empted.” Wyeth, 555 U.S. at 576. The
Supreme Court explained:

          While agencies have no special authority to pronounce on pre-emption
          absent delegation by Congress, they do have a unique understanding of
          the statutes they administer and an attendant ability to make informed
          determinations about how state requirements may pose an obstacle to
          the accomplishment and execution of the full purposes and objectives
          of Congress. The weight we accord the agency’s explanation of state
          law’s impact on the federal scheme depends on its thoroughness,
          consistency, and persuasiveness.

Id. at 576-77 (internal citations and quotation omitted).

      Although Wyeth suggests we may give some weight to 45 C.F.R.
§ 155.225(d)(8), we need not do so here because HHS’s understanding of the ACA’s


      7
        Although we consider an amendment to the original rule, “‘an amendment to
a legislative rule must itself be legislative.’” Iowa League of Cities, 711 F.3d at 875
(quoting Nat’l Family Planning & Reproductive Health Ass’n v. Sullivan, 979 F.2d
227, 235 (D.C. Cir. 1992)).

                                          -10-
preemptive scope is consistent with our independent preemption determination. The
July 28, 2014 regulations reenforce our determination that the ACA preempts the three
challenged substantive provisions of the HIMIA, but these new regulations do not
compel us to reach this result, nor do they supplant our independent preemption
analysis.

      With these principles in mind, we turn to the challenged provisions.

             2.     Missouri Revised Statutes § 376.2002.3(3)—No Advice
       Mo. Rev. Stat. § 376.2002.3(3) states, “[A] navigator shall not . . . [p]rovide
advice concerning the benefits, terms, and features of a particular health plan or offer
advice about which exchange health plan is better or worse for a particular individual
or employer.” The appellees argue this provision conflicts with a CAC’s federally
mandated duty to “[p]rovide information to individuals and employees about the full
range of [Qualified Health Plan]8 options and insurance affordability programs for
which they are eligible,” including the requirement that CACs “clarify[] the
distinctions among health coverage options.” 45 C.F.R. § 155.225(c)(1). Huff
attempts to differentiate between “advice” and “information” and argues there is no
conflict because under the HHS regulations, CACs can give only information, not
advice.

        In support of his position, Huff posits “advice” means a “‘recommendation
regarding a decision or course of conduct.’” (Quoting Webster’s Third New
International Dictionary 32 (1993)). Huff explains under his definition, CACs only
violate § 376.2002.3(3) if they explicitly state, “‘I recommend,’ or ‘this is the plan you


      8
        Qualified Health Plans (QHPs) are plans offered through an exchange. See 45
C.F.R. § 155.20 (“Qualified health plan or QHP means a health plan that has in effect
a certification that it meets the standards . . . issued or recognized by each Exchange
through which such plan is offered.”).

                                          -11-
should get,’ or ‘these are the features you should get.’” Under Missouri law, “‘the
primary rule of statutory interpretation is to give effect to legislative intent as reflected
in the plain language of the statute.’” E&B Granite, Inc. v. Dir. of Revenue, 331
S.W.3d 314, 318 (Mo. 2011) (en banc) (quoting Brinker Mo., Inc. v. Dir. of Revenue,
319 S.W.3d 433, 437-38 (Mo. 2010) (en banc)). While “[t]he plain meaning of a term
may be derived from a dictionary,” id., the ultimate construction must “‘be reasonable
and logical,’” Gash v. Lafayette Cnty., 245 S.W.3d 229, 232 (Mo. 2008) (en banc)
(quoting Donaldson v. Crawford, 230 S.W.3d 340, 342 (Mo. 2007) (en banc) (per
curiam)).

       Huff’s confined reading of § 376.2002.3(3) is unreasonable when the HIMIA
is read as a whole. The subsection directly following the HIMIA’s no-advice
provision—Mo. Rev. Stat. § 376.2002.3(4)—forbids CACs from “[r]ecommend[ing]
or endors[ing] a particular health plan or advis[ing] consumers about which health
plan to choose.” If § 376.2002.3(3) is read only to ban CACs from providing a
recommendation, it would make § 376.2002.3(4) superfluous. “This result would
defy the norm of statutory construction that every word, clause, sentence, and
provision of a statute must have effect. [We] presume[] that the legislature did not
insert idle verbiage or superfluous language in a statute.” Civil Serv. Com’n of St.
Louis v. Members of Bd. of Aldermen of St. Louis, 92 S.W.3d 785, 788 (Mo. 2003)
(en banc) (quotations omitted).

       Given § 376.2002.3(3) cannot be read to prohibit only the giving of a
recommendation, we turn to the next dictionary definition of advice: “information or
notice given.” Webster’s Third New International Dictionary 32 (1993). Under this
definition, § 376.2002.3(3) arguably prevents CACs from giving information about
the various health plans offered through the exchange. The appellees thus are likely
to succeed on the merits in arguing the no-advice provision, § 376.2002.3(3), directly
controverts the duties outlined in 45 C.F.R. § 155.225(c)(1).



                                            -12-
       The 2014 HHS regulations confirm our conclusion. HHS considers
“[r]equirements that would prevent [CACs] from providing advice regarding
substantive benefits or comparative benefits of different health plans” preempted.
45 C.F.R. § 155.225(d)(8)(iii). Huff counters this provision by again claiming CACs
are only authorized to give information, not advice. We are not convinced. It is likely
the appellees will succeed in proving Mo. Rev. Stat. § 376.2002.3(3) prevents the
application of the ACA by imposing upon a CAC’s duty to provide information about
different health insurance plans and to clarify the distinctions among these plans. See
45 C.F.R. § 155.225(c)(1).

             3.     Missouri Revised Statutes § 376.2002.3(5)—No Off-Exchange
                    Information

       The HIMIA also forbids CACs from giving “any information or services related
to health benefit plans or other products not offered in the exchange.” Mo. Rev. Stat.
§ 376.2002.3(5). But CACs must “clarify[] the distinctions among health coverage
options, including QHPs [and] help[] consumers make informed decisions during the
health coverage selection process.” 45 C.F.R. § 155.225(c)(1) (emphasis added). The
appellees argue the HIMIA’s ban on providing information about off-exchange health
plans prevents them from fulfilling these duties.

       Contrary to Huff’s claims, the relevant laws and regulations do not limit CACs
to discussing only those plans offered on the exchange. As the appellees explained
in their brief and at oral argument, there are situations where CACs must provide
information about an off-exchange health plan to give consumers a full understanding
of their options. For example, if a consumer already covered by an off-exchange
insurance plan seeks information about switching to an on-exchange plan, the CAC
assisting the consumer necessarily must discuss the off-exchange plan to “clarify[] the
distinctions” between that plan and exchange plans to “help [the consumer] make
informed decisions during the health coverage selection process.” 45 C.F.R.


                                         -13-
§ 155.225(c)(i). Further, the clause “clarif[ies] the distinctions among health coverage
options, including QHPs,” id. (emphasis added), suggests CACs must inform clients
of the differences between a number of health care plans, including—but not limited
to—those offered through the exchange.

       It is likely the appellees will succeed in showing the HIMIA requirement that
state navigators refrain from providing information about health insurance plans not
offered through the exchange may prevent CACs from informing consumers about the
full range of health care available to them and “clarifying the distinctions among
health coverage options,” 45 C.F.R. § 155.225(c)(i).

             4.     Missouri Revised Statutes § 376.2008—Consult an Insurance
                    Producer

       Mo. Rev. Stat. § 376.2008 requires that “[u]pon contact with a person who
acknowledges having existing health insurance coverage obtained through an
insurance producer, a [state] navigator shall advise the person to consult with a
licensed insurance producer regarding coverage in the private market.” It is likely the
appellees will be able to demonstrate this provision contravenes a CAC’s duty to
provide “fair, impartial, and accurate information” about insurance options, 45 C.F.R.
§ 155.225(c)(1).

       Under Missouri law, the term “insurance producer” includes both insurance
brokers and agents. See Mo. Rev. Stat. § 375.012.3. Insurance agents in Missouri
generally represent the interests of insurance companies, not the insured, and thus owe
no duty to the insured. See Emerson Electric Co. v. Marsh & McLennan Cos., 362
S.W.3d 7, 12 (Mo. 2012) (en banc). Insurance brokers do owe fiduciary duties to the
insured, but these duties are limited and do not require brokers to provide complete
and impartial information. See id. at 9-10. For example, in Emerson Electric, the
Missouri Supreme Court found a broker, who was paid by commission, had no “duty
to find insureds the lowest possible cost insurance available to meet their needs.” Id.

                                         -14-
at 9. Sending consumers to insurance providers may prevent CACs from providing
those consumers with only “fair, impartial, and accurate information,” 45 C.F.R.
§ 155.225(c)(1).

       In addition, the 2014 regulations declare as preempted any “[r]equirements that
[CACs] refer consumers to other entities not required to provide fair, accurate, and
impartial information,” which apparently includes Missouri insurance producers.
45 C.F.R. § 155.225(d)(8)(i). Huff contends the HIMIA does not prevent the
application of § 155.225(d)(8)(i) because it does not require CACs to “refer” clients
to insurance producers and instead requires CACs to “advise [clients] to consult with”
insurance producers, Mo. Rev. Stat. § 376.2008. This distinction is unpersuasive. As
written, the HIMIA requires CACs to recommend certain clients consult with private
insurance producers—an act falling within the plain meaning of “refer.” Webster’s
Third New International Dictionary 1907 (1993) (defining refer as “to send [or] direct
for treatment, aid, information, or decision”).

      As with the other provisions discussed, it is likely the appellees can establish
Mo. Rev. Stat. § 376.2008 interferes with federal law by preventing CACs from
performing their federally required duties.9




      9
        The appellees express concern that §§ 376.2002.3(3), (5) and 376.2008 may
also impose upon their freedom of speech, as guaranteed by the First Amendment.
Because we find these sections are likely preempted by federal law, we do not reach
the First Amendment issue.

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      B.     Missouri Revised Statutes § 376.2010.1—Due Process Void for
             Vagueness

       Because it enjoined the entire act on preemption grounds, the district court did
not reach the appellees’ due process claim. The appellees challenge the HIMIA’s
remedial provision—Mo. Rev. Stat. § 376.2010.1—as being void for vagueness in
violation of the Due Process Clause. Section 376.2010.1 states:

             The director may place on probation, suspend, revoke, or refuse
      to issue, renew, or reinstate a navigator license or may levy a fine not to
      exceed one thousand dollars for each violation, or any combination of
      actions, for any one or more of the causes listed in section 375.141,
      375.936 or for other good cause.

(Emphasis added). The appellees claim the phrase “or for other good cause” is
impermissibly vague, in violation of due process, because it “does not provide fair
notice of what is prohibited” and “creates the opportunity for arbitrary and
discriminatory enforcement.”

       “‘It is well established that vagueness challenges to statutes which do not
involve First Amendment freedoms must be examined in the light of the facts of the
case at hand.’” Gallagher v. City of Clayton, 699 F.3d 1013, 1021 (8th Cir. 2012)
(quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)); accord Maynard v.
Cartwright, 486 U.S. 356, 361 (1988) (“Vagueness challenges to statutes not
threatening First Amendment interests are examined in light of the facts of the case
at hand; the statute is judged on an as-applied basis.”). Although the appellees argue
this provision will chill speech because it “empowers the Director to penalize
individuals who wish to talk about insurance but not to be licensed as navigators,” this
argument is based on a misreading of § 376.2010.1.

    The appellees interpret the statute as penalizing individuals who violate the
HIMIA’s other sections. However, § 376.2010.1 only allows the director to limit a

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state navigator’s license for misconduct such as fraud, misrepresentation,
misappropriation of funds, and unfair practices. See Mo. Rev. Stat. §§ 375.141.1,
375.936. The appellees’ fear that § 376.2010.1 empowers the director to punish them
merely for engaging in the speech required of a CAC is unfounded.

       Because § 376.2010.1 does not implicate the First Amendment “in light of the
facts of the case at hand,” Maynard, 486 U.S. at 361, the appellees are not likely to
succeed on the merits of their facial vagueness claim. See Gallagher, 699 F.3d at
1021-22.

III.  CONCLUSION
      We affirm the order preliminarily enjoining the enforcement of Mo. Rev. Stat.
§§ 376.2003.3(3), (5) and 376.2008 against CACs, and we vacate the remainder of the
preliminary injunction, remanding the case back to the district court.
                       ______________________________




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