High court hears Web sales case

Times Staff Writer

The Supreme Court took up a little-noted case Wednesday that could prove a boon in the era of Internet commerce -- and deal a setback to states’ efforts to keep cigarettes, drugs and other harmful products out of the hands of minors.

Until the last decade, states restricted sales of certain products by regulating the sellers. For example, retailers were banned from selling cigarettes to those under age 18.

But cigarettes, like nearly every other product, now can be bought over the Internet and sent directly to the consumer, which means the seller cannot verify the age of the purchaser. The number of Web vendors of cigarettes rose from 88 in 2000 to 772 early last year, according to the California attorney general’s office.


As a fallback, states increasingly have turned to shippers and delivery services, such as UPS or FedEx, and said they must see to it that certain products, including tobacco, are delivered only to adults, not minors. Maine, for example, adopted a law requiring shippers who deliver tobacco products to obtain a signature from an adult and see a government-issued identification card.

But Bush administration lawyers joined the trucking industry Wednesday in urging the high court to throw out Maine’s law and to shield shippers from all such state regulation of delivery services. This would speed the flow of Internet sales and reduce costs, they said.

Forcing delivery services to check on who is receiving a particular product disrupts “the timely and cost-effective flow of packages to our businesses and homes,” lawyers for the shippers said.

They referred to an industry-friendly measure passed by Congress in 1994 that bars states from enforcing any law “related to the price, route or service” of a trucker or a shipping firm. The administration’s lawyers say this broad deregulatory measure goes beyond economic regulation. There is no “exception for state health and safety regulations,” they argued.

Most of the justices signaled during the hourlong argument that they favored freeing the shipping industry from state regulations.

“We are very worried,” California Deputy Atty. Gen. Laura Kaplan said after the argument. “We don’t know how far the Supreme Court will go, but there are a lot of other dangerous products besides cigarettes. And this could leave a big void.”

California does not regulate delivery services as strictly as required Maine does. “We don’t have anything exactly like” Maine’s law, Kaplan said.

Under California law, Internet vendors are required to check whether purchasers are adults. However, as the Supreme Court was told, a test of the state law had children try to buy a carton of cigarettes from 234 websites, and they succeeded with 129. Most of the sites did nothing more than ask purchasers to certify that they were 18 or older, the state’s lawyers said.

“The law has not been as effective as we’d like,” Kaplan said.

The California lawyers, joined by those from 37 other states, filed a brief that warned against making the shipping industry’s “expansive view of [federal] preemption . . . the law of the land.”

Doing so would threaten “state restrictions on the delivery of a myriad of other dangerous products, including explosives, liquor, drugs, poisonous reptiles and wild animals,” they said.

Justice Antonin Scalia made clear that he did not share the states’ concern. “Maybe Congress wanted the regulatory void,” he told the Maine lawyer who was defending the state’s efforts to regulate delivery services.

Comments and questions by Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, David H. Souter and Samuel A. Alito Jr. suggested similar views.

“Congress wanted to end a category of regulation,” Souter said.

Breyer said states were unlikely to set exactly the same rules for delivery services. He added: “If every state does it differently, it’s going to be a nightmare.”

With the steady growth of sales over the Internet, the case has been seen as the key test of whether delivery services can be required to enforce some of the state sales restrictions imposed on retailers.

The Maine law was struck down by two lower courts, but the justices agreed to hear an appeal from the state’s attorney general, Steven Rowe.