Media Backgrounder: 
Massachusetts Tobacco Advertising Restrictions to be Reviewed by US Supreme Court

January 8, 2001  

Contact:  Richard A. Daynard
Edward L. Sweda, Jr. or
Mark A. Gottlieb
617-373-2026
 media@tplp.org

 

CASE BACKGROUND

On January 22, 1999, the Massachusetts Attorney General, pursuant to his rulemaking authority, adopted regulations on tobacco advertising and promotions.  The regulations "declare certain types of conduct by manufacturers, distributors, and sellers of tobacco products to be per se 'unfair or deceptive acts or practices' prohibited under chapter 93A, section 2(a) of the Massachusetts General Laws."

The regulations do the following:

  • ban outdoor tobacco ads within 1000 feet of schools or playgrounds;

  • require cigar packages to carry health warnings;

  • for stores close to schools or playgrounds, ban in-store tobacco ads that face out;

  • ban the handing out of samples of tobacco products;

  • ban the distribution of tobacco products by mail, unless there is provided a copy of a government-issued identification showing that the purchaser is 18 or older;

  • ban self-service displays of tobacco products except in adult-only establishments;

  • require any in-store tobacco ads to be at least 5 feet above the floor.

 The tobacco industry filed suit in federal court, challenging the validity of the regulations.

 On December 2, 1999, the District Court (Young, J.) rejected the industry's argument that the regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act.  See Lorillard Tobacco Co. v. Reilly, 76 F.Supp. 2d 124 (D. Mass. 1999).  On January 24, 2000, the District Court rejected most of the industry's claims that the regulations violate the free speech provisions of the First Amendment.  See Lorillard Tobacco Co. v. Reilly, 84 F. Supp. 2d 180 (D. Mass. 2000) (Lorillard II).  That decision began with a secton titled: "Cigarette Advertising is Functional Pornography." The District Court, however, rejected the provision that in-store ads must be at least 5 feet above the floor. (see article in Tobacco Control Update).

 The tobacco industry appealed the District Court's rulings.  On July 17, 2000, the U.S. Court of Appeals for the First Circuit held that the Attorney General's regulations are not preempted by federal law, do not violate the commercial speech protections under the First Amendment and do not violate the Commerce Clause except for warning requirements for cigar packages and advertisements. (see Backgrounder on First Circuit decision from TobaccoControl.neu.edu) The tobacco industry appealed.

 On January 8, 2001, the United States Supreme Court announced that it accepted the tobacco industry's application for a writ of certiorari.  It will consider arguments both on the First Amendment -- and the application of the Central Hudson test -- and preemption.

 The four-part Central Hudson test is as follows: 

  1. Does the commercial speech in question concern lawful activity and is the speech truthful?

  2. Is the asserted governmental interest substantial?

  3. Does the law directly advance the government's interest?

  4. Does the law reasonably not restrict more speech than necessary?

 

The key questions related to Lorillard are numbers 3 and 4.  The U.S. Court of Appeals for the First Circuit found that cigarettes, smokeless tobacco and cigars present a real harm, and that regulating advertising of such products strongly affects use.  The Court of Appeals also concluded that the 1000-foot zone effectively advances the government's interest in protecting youth from being targeted via tobacco advertising.  Noting that the tobacco companies had voluntarily agreed to keep their billboards 500 feet from schools, the Court of Appeals ruled that the 1000-foot zone does not violate the tobacco companies' commercial speech rights under the First Amendment.

 The Court of Appeals also ruled that the regulations' provisions for health warnings for cigar packages and advertisements were allowed under the First Amendment but not allowed under the Commerce Clause.

WHAT IS THE IMPORTANCE OF THIS APPEAL?

At stake is the ability of states or localities to narrowly restrict tobacco advertising  in situations involving likely exposure of children to such messages.  In addition to the First Circuit, the Second, Fourth, and Seventh Circuits have allowed these types of measures to stand.  The US Court of Appeals for the Ninth Circuit reached the opposite conclusion, however. (clicking on these links will open the Circuit opinions in a new window)  If the US Supreme Court lets the decision stand, it will give the go-ahead to other states or localities to pass similar legislationon or regulations.  A reversal could protect tobacco advertising and significantly expand the notion of "commercial free speech."

WHEN IS  THE COURT GOING TO ISSUE AN OPINION?

Oral arguments will take place on April 25, 2001 and the Court will rule before the end of June.

 COMMENTARY:

Edward L. Sweda, Senior Attorney for the Tobacco Control Resource Center, said "the fact that the tobacco companies have literally made a Supreme Court case out of regulations designed to protect  children from tobacco ads shows that these companies are still targeting kids for nicotine addiction. They can spend tens of millions of dollars and say a thousand times that they don't want kids to smoke but, their actions belie their words."