High court takes up Net regulation

November 29, 2007|By David G. Savage | David G. Savage,LOS ANGELES TIMES

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

Until the past decade, states regulated 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 yesterday 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 relied on 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 hour-long argument that they favored freeing the shipping industry from state regulations.

Under state law, Internet vendors are required to check whether purchasers are adults. However, as the high court was told, a state-supervised test had children try to buy a carton of cigarettes from 234 Web sites, and they succeeded with 129. Most of the sites did nothing more than ask purchasers to certify that he or she was 18 years of age, the state's lawyers said.

Lawyers from 38 states filed a brief that warned against making the shipping industry's "expansive view of [federal] pre-emption ... 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.

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.

David G. Savage writes for the Los Angeles Times.

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