The Supreme Court will hear arguments this week on whether states can restrict tobacco advertising directed at adults in order to protect children.
At issue are the regulations Massachusetts adopted in 1999 that prohibit cigarette ads in stadiums, in store windows where they can be seen from the outside, or within 1,000 feet of a public playground, park or school.
Advertising lobby groups argue that such restrictions amount to a ban on ads for a legal product, which violates their right to free speech. "Such restrictions would impose a constitutionally intolerable burden on adult-to-adult communications and would intrude on the rights of parents to control the education of their children," the Association of National Advertisers wrote in a brief filed Feb. 22 to the Supreme Court.
In upholding the Massachusetts regulations, a federal appeals court ruled last year that states can adopt more stringent controls to protect children. Lorillard Tobacco, Brown & Williamson, R.J. Reynolds and Philip Morris have appealed that decision to the Supreme Court.
The Supreme Court must decide whether the restrictions are preempted by the Federal Cigarette Labeling and Advertising Act, which says advertising cannot be restricted on the basis of health reasons. If the court says the federal preemption does not apply, then it will consider the First Amendment issues raised in the case.
Tobacco advertising is also under attack on two other fronts. In California, five states filed suit last week against RJR, alleging the company violated the Master Settlement Agreement between Big Tobacco and the states by advertising cigarettes in Rolling Stone and other magazines where 12- to 17-year-olds account for more than 15 percent of readership.
Meanwhile, Rep. Peter DeFazio, D-Ore., introduced a bill that would eliminate the tax deduction cigarette companies take for the cost of advertising.
Wendy Melillo, Adweek. April 23, 2001
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