Cato Scholar Comments on Court Case on Maine Internet Tobacco Regulations

Wednesday, November 28, 2007

Ilya Shapiro, senior fellow in constitutional studies and editor-in-chief of the Cato Supreme Court Review:

This case pits the idea that states have the power (for good or ill) to regulate commerce within their borders against the principle that the federal government alone regulates interstate commerce and thus no state should be able to impose its particular regulations on its sisters. On first blush, this is a challenging conflict for those who promote liberty and limit the powers of the federal government: If Maine wins, shipping companies (from regional truckers to FedEx and UPS) will incur greater costs that will inevitably affect consumers nationwide. Yet if the carriers win, Maine will have no way of enforcing its legitimate public policy of keeping cigarettes out of minors' hands.

The solution, as often happens, lies in the very technology that caused the problem in the first place. Instead of placing the onus on shippers to verify age, Maine should require the tobacco vendors selling their wares online to do so. How? By employing any of the myriad age-verification software available for just these purposes. Requiring online orders to be paid for with a credit card will also have the same effect (and the issue of a minor illicitly using a parent's card is akin to that of a minor using a fake ID at a store). Thus, the carriers should technically win here through the vehicle of "federal preemption" -- and thus enable technologies freely available in the market to solve the underlying problem instead of heavy-handed regulations (federal or state).

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