Media Backgrounder: 
Supreme Court Decision on Massachusetts Advertising Regulations

June 28, 2001  

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

 

US Supreme Court Undercuts States' Right to Regulate Tobacco Advertising and Leaves this Responsibility to Congress
60% of Current Members of Congress Have Accepted Direct Financial Support from Tobacco Companies since 1995.

(see the decision here)

In a defeat for states wishing to protect children from tobacco advertising, the US Supreme Court ruled today that regulations restricting tobacco advertising within 1000 feet of school and playgrounds were preempted by federal law and violated the tobacco industry's right to free speech.  The Court ruled 5-4 that the Federal Cigarette Labeling and Advertising Act preempts state regulations such as those adopted in Massachusetts.  It also ruled 6-3 that such restrictions violate the tobacco companies' First Amendment right to free speech.

The Court reinterpreted First Amendment law as well as federal preemption law to the benefit of an industry that kills hundreds of thousands of its US customers each year.

Richard Daynard, a law professor at Northeastern University and Chairman of the Tobacco Products Liability Project said, "last year the Court ruled that the FDA cannot regulate tobacco products without Congressional action.  This year it said that states cannot pass reasonable restrictions on advertising, only Congress take such action.  The trouble is, too much of the action in Congress so far has involved accepting tobacco companies' campaign contributions."

Senior Attorney for the Tobacco Products Liability Project, Edward Sweda, noted that, "the Court's right wing majority is known for its support of states' rights.  But apparently its idea of states' rights does not include the right to protect children from the predatory advertising practices of the tobacco industry."

Mark Gottlieb, an attorney with the Tobacco Products Liability Project said, "This unfortunate ruling really plays into the hands of the tobacco industry as the federal government looks for ways to settle its pending racketeering lawsuit against Big Tobacco.  Considering the money that the industry has paid to Congress and the Bush Administration, the public health community needs to watch settlement talks involving Congressional action very carefully because it has become increasingly clear that the fox is guarding the hen house." 

The decision really stifles state and local efforts to limit tobacco advertising.  It does permit restrictions on self-service tobacco displays such as those included in the Massachusetts regulations and enacted in many other places as well.   Such displays have been found to contribute to youth smoking through shoplifting and reduced interaction with retail clerks who are be more likely to check IDs when young people have to ask for a particular brand of tobacco product.

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.  However, the US Supreme Court found that the Massachusetts regulations restricted more speech than necessary, running afoul of the fourth part of the Central-Hudson test.

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.