In New Hampshire Motor Transport Ass'n v. Rowe, trade associations sought a declaratory judgment that the Federal Aviation Administration Authorization Act of 1994 (FAAAA) preempts a Maine law enacted to facilitate collection of state taxes and restrict the delivery of tobacco products to minors (the Tobacco Delivery Law). The district court granted the plaintiffs' second motion for summary judgment in part, finding that a single provision of little independent consequence escaped preemption, and enjoined enforcement of the preempted provisions. The state appealed to the United States Court of Appeals for the First Circuit, which held that most of Maine's Tobacco Delivery Law is preempted. Maine argued that its efforts to protect the health and welfare of its minor citizens and collect unpaid tobacco taxes cannot be characterized as components of an artificial regulatory structure. To the contrary, the state maintained that its law (1) is foremost a legitimate exercise of Maine's police power that advances a vested interest of the state as a consumer of federal grants and a provider of health-related anti-smoking services for minors, and (2) was duly enacted pursuant to its concurrent jurisdiction-as provided by federal law-to enforce proscriptions on trafficking in contraband cigarettes. Is it possible that Maine over-reached by combining in a single enactment a revenue collection provision and a citizen health provision? Should simpler mechanisms be employed to forestall a future adverse preemption ruling based on a finding of “forbidden significant effect” of state law on interstate carriers? Does New York's law-which proscribes all delivery of cigarettes to consumers-represent a viable model? Congress should clarify the inherent authority of the states to control the importation of harmful tobacco products across their borders. Only by affirming the jurisdiction of states in the quasi-regulation of instrumentalities of interstate commerce-when those instrumentalities choose to deal in notoriously harmful consumer goods-can the seemingly intractable issues raised by the N.H. Motor Transport litigation be put to rest.

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