We have been complaining about the purported “presumption against preemption” ever since the Blog started. Our first major research post demonstrated that, back in 2006, such precedents were primarily on the express side of preemption. In our sandbox, that changed with Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), in which the majority simply ignored any purported presumption against preemption, id. at 326, despite the dissent’s vociferous assertion of one. Id. at 334.
In the nearly twenty years since Riegel, the Supreme Court has not relied on any “presumption” against preemption in an express preemption case. See Coventry Health Care of Missouri, Inc. v. Nevils, 581 U.S. 87, 97 (2017) (rejecting presumption as “blind” to statutory context); Puerto Rico v. Franklin California Tax-Free Trust, 579 U.S. 115, 125 (2016) (where a “statute contains an express pre-emption clause, we do not invoke any presumption against pre-emption”) (citation and quotation marks omitted); Gobeille v. Liberty Mutual Insurance Co., 577 U.S. 312, 325-26 (2016) (finding preemption notwithstanding “[a]ny presumption against pre-emption, whatever its force in other instances”); POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 111 (2014) (“[b]ecause this is a preclusion case, any ‘presumption against pre-emption’ has no force”) (citation omitted); Arizona v. Inter Tribal Council, Inc., 570 U.S. 1, 2 (2013) (rejecting an anti-preemption presumption urged by the dissent; finding “no reason to invoke the presumption”); Tarrant Regional Water District v. Herrmann, 569 U.S. 614, 631 n.10 (2013); Cuomo v. Clearing House Assn, L.L.C., 557 U.S. 519, 534 (2009) (“[w[e have not invoked the presumption against pre-emption, and think it unnecessary to do so in giving force to the plain terms of the [statute at issue]”). But see Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008) (invoking a presumption against preemption without mentioning the word “presumption”) – discussed below.
The last time a Supreme Court justice (Kennedy, who is no longer on the Court) was so bold at to include a “presumption against preemption” in an opinion of the Court, was CTS Corp. v. Waldburger, 573 U.S. 1, 7 (2014), which resulted in only two other justices joining that part of the opinion – and four concurring justices specifically refusing to join that aspect of the opinion. Id. at 19-20 (“The contrary notion − that express pre-emption provisions must be construed narrowly − was extraordinary and unprecedented when this Court announced it two decades ago, and since then our reliance on it has been sporadic at best”) (citations and quotation marks omitted).
The same has been true – if less explicit − in implied preemption cases. See Mutual Pharmaceutical Co. v. Bartlett, 570 U.S. 472, 503 & n.1 (2013) (like Riegel, ignoring the dissent’s reliance on a presumption against preemption); Hillman v. Maretta, 569 U.S. 483, 490186 L. Ed. 2d 43 (2013) (finding preemption notwithstanding an anti-preemption presumption in domestic relations case); Arizona v. United States, 567 U.S. 387, 451 (2012) (giving what the dissent viewed was “short shrift” to any presumption against preemption in a field preemption case); PLIVA, Inc. v. Mensing, 564 U.S. 604, 638 (2011) (like Riegel and Bartlett, ignoring the dissent’s reliance on a presumption against preemption). Indeed, the last Supreme Court implied preemption decision that actually invoked a “presumption against preemption” as part of its reasoning was the benighted Wyeth v. Levine, 555 U.S. 555 (2009), decision. And as we discussed in this post, the Court spent four pages extensively reworking Levine in Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299 (2019), and “conspicuously absent from that description is any express reference to any ‘presumption’ (as opposed to the older ‘assumption’) against preemption.”
But as mentioned above, there is that one exception, Altria Group, Inc. v. Good, 555 U.S. 70 (2008), a tobacco case decided less than a year after Riegel. By a 5-4 vote, the court used a presumption against preemption to import a “predicate duty” gloss on the textually absolute preemption clause (15 U.S.C. §1334) of the Cigarette Labeling Act. Id. at 76-77. Thus, the majority concluded that “the phrase ‘based on smoking and health’ fairly but narrowly construed does not encompass the more general duty not to make fraudulent statements.” Id. at 87. That holding allowed plaintiffs to sue over approved labeling simply by calling their claims “fraud” rather than failure to warn so that their claims were purportedly “predicated on the duty not to deceive.” Id. at 91. The four-justice dissent (the same four as in CTS) was having none of it:
In light of Riegel, there is no authority for invoking the presumption against pre-emption in express pre-emption cases. The majority here thus turns to Lohr to revive the presumption and, in turn, to justify its restrictive reading of the Labeling Act’s express pre-emption provision. But, as Riegel plainly shows, the Court is no longer willing to unreasonably interpret expressly pre-emptive federal laws in the name of “congressional purpose,” or because “Congress has legislated in a field traditionally occupied by the States.” The text of the statute must control.
Id. at 102-03 (citations omitted) (Thomas, J., the Chief Justice, Scalia, and Alito, JJ. dissenting).
Well, three of the four Good dissenters are still on the Court, as opposed to … well, none of the five who supported a presumption against preemption in its (hopefully) last hurrah in Good. That’s significant because the Good presumption against preemption recently led to the decision in Fontaine v. Philip Morris USA Inc., 277 N.E.3d 585 (Mass. 2026), which affirmed a large cigarette-related verdict:
The preemptive scope of the Labeling Act is governed entirely by the express language . . ., which is to be read narrowly in light of the presumption against the pre-emption. . . . Both statutory and common-law State claims based on theories that a defendant should have included additional, or more clearly stated, warnings than those required by the Labeling Act, or that are based on theories that a defendant’s advertising neutralized the effect of federally mandated warning labels, are preempted. . . . But the Labeling Act does not preempt claims that are “predicated not on a duty ‘based on smoking and health’ but rather on a more general obligation, such as “the duty not to deceive. In other words, the Labeling Act “pre-empts only requirements and prohibitions − i.e., rules − that are based on smoking and health,” not claims that assert “harms related to smoking and health.” Altria Group, Inc. v. Good, 555 U.S. 70, 84 (2008).
Id. at 608 (other citations omitted) (emphasis original). As in Good, that meant that warning claims repackaged as “fraud” escaped preemption. Id. at 609 (admitting that the same “evidence might have also been relevant to an unasserted preempted [warning] claim”).
But there’s hope for us product liability preemption afficionados. Fontaine is being appealed to the United States Supreme Court, with the defendants/petitioners expressly arguing that Good should be overruled, and the presumption against preemption rejected across the board in express preemption cases (and perhaps entirely). Bexis coordinated PLAC’s amicus curiae brief in Fontaine (if he wasn’t semi-retired he probably would have written it).
There’s more. Beyond cigarette preemption, a circuit conflict – one of the things that the United States Supreme Court exists to adjudicate – has opened up on the presumption against preemption in our sandbox. Three years ago, in our post “Trying to Make Some Sense Out of OTC Economic Loss Decisions,” we pointed out that the distinctly pro-plaintiff approach to OTC preemption in such cases can be traced to the pre-PR v. Franklin (but not by much) decision in Astiana v. Hain Celestial Group., Inc., 783 F.3d 753, 758 (9th Cir. 2015). Astiana justified allowing plaintiffs to use the FDCA’s generalized “misbranding” and “adulteration” provisions to make blatantly non-“identical” labeling claims based on a presumption against preemption:
In analyzing express preemption, we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. The FDCA proscribes any . . . labeling that is false or misleading in any particular.
783 F.3d at 757. Thus, the use of broad, vague “false or misleading” statutory language as an express preemption dodge is allowed in the Ninth Circuit in direct reliance on the now non-existent anti-preemption presumption in express preemption cases. It’s what we call “zombie” presumption against preemption precedent.
Recently, however, in Yousefzadeh v. Johnson & Johnson Consumer Inc., 184 F.4th 130 (2d Cir. 2026), the Second Circuit expressly rejected any presumption against preemption in the same statutory context – OTC preemption.
When a federal law contains an express preemption clause − as here − we focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent. In other words, when an express preemption clause exists, the plain text of the statute begins and ends our analysis, and courts should not invoke the presumption against preemption.
Id. at 145 (citing, inter alia, PR v. Franklin). Moreover, Yousefzadeh specifically disagreed with the Ninth Circuit’s “opposite route” approach to OTC preemption. Id. at 148 n.12 (“we do not agree” with that circuit’s “reason[ing] that the plaintiffs were enforcing the FDCA’s . . . misbranding provision”). If the United States Supreme Court does not accept the petition in Fontaine (always a iffy proposition at best), then perhaps OTC preemption becomes the next, best shot at overturning left-over anti-preemption presumptions in prescription medical product liability litigation.
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