May 30, 2005

PORTLAND, Maine -- A federal judge has struck down portions of a Maine law designed to prevent youths from smoking.

U.S. District Judge D. Brock Hornby said that while Maine's statute is laudable and well-intentioned, it runs afoul of federal interstate commerce laws by impeding delivery services.

Maine's 2003 law requires procedures to verify that those who purchase tobacco by mail are old enough to do so. It was designed in part to prevent youths from ordering cigarettes online and also to assist the state in collecting taxes that would otherwise be unpaid.

Under the Maine law, the person to whom the tobacco products are addressed must be at least 18 years old and must sign for the package. If the buyer is under 27, a government-issued identification must be shown at the time of delivery.

After the law was enacted, United Parcel Service announced it would no longer make consumer tobacco deliveries in Maine because it would have to modify its procedures for one product. The New Hampshire and Massachusetts motor transport associations, and Vermont Truck and Bus Association, whose members include cargo carriers, sued.

In his 37-page ruling Friday, Hornby agreed that Maine's law forces UPS to vary from procedures it uses in its international delivery system, which can affect the prices of its service and interfere with the orderly flow of packages.

The judge agreed that states may regulate the delivery of contraband, but only if it does not "significantly affect a carrier's prices, routes or services."

Hornby noted in his ruling that he had denied a preliminary request to block enforcement of the state law, but "now I conclude that two of the three challenged state provisions cannot survive the broad pre-emptive language of the federal legislation" and two recent decisions by the 1st U.S. Circuit Court of Appeals.

The ruling traces federal pre-emption of interstate commerce to an 1887 law. While Congress has written into the law some areas that are exempt from federal pre-emption, the Maine Tobacco Delivery law "fits none of the exemptions," the judge wrote.
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