A dispute pitting Massachusetts against the tobacco industry could give the U.S. Supreme Court the chance to decide if commercial advertising deserves First Amendment protections similar to political and artistic speech.
At issue are regulations that would severely curtail tobacco advertising inside and outside stores near schools.
Massachusetts Attorney General Thomas Reilly says the regulations are needed to keep tobacco companies from pitching cigarettes to children.
The industry argues it has already agreed to tough advertising regulations, including banning outdoor billboards, as part of a national settlement with the states.
"It's a signal to the tobacco companies throughout this nation that we're not going to back off," Reilly said. "This is about protecting our children."
The companies say the regulations are overkill and that advertising should be protected by the First Amendment right to free speech.
The high court, which has traditionally held that commercial speech can be regulated but not banned, this week will hear a pair of appeals - Lorillard Tobacco Co. v. Reilly and Altadis U.S.A. Inc. v. Reilly - filed by cigarette and cigar companies against Massachusetts' regulations.
Massachusetts' rules are effectively a ban, said Mark Berlind, a lawyer for Philip Morris Inc., one of the tobacco manufacturers who challenged the regulations, which have yet to take effect.
"What's at stake here is whether manufacturers of adult products are allowed to advertise to adult consumers in any meaningful way," he said. "The Massachusetts regulations would take that last sliver of advertising away from cigarette companies and store owners."
The regulations ban outdoor advertising of all tobacco products within a 1,000 feet of schools and playgrounds, including advertising on the outside of stores and advertising inside stores that can been seen from the outside.
The proposal also requires that tobacco products be kept behind the store counter and prohibits advertising at children's eye level, defined as below a height of five feet.
Reilly said the Attorney General's Office adopted the regulations in 1999, citing reports by the U.S. Food and Drug Administration and the U.S. Surgeon General that tobacco advertising is a significant influence in the use of tobacco by children.
The attorney general, as the state's consumer advocate, has the authority to adopt regulations affecting certain products. The regulations initially were to have gone into effect last February, but have been postponed by the lawsuits.
In 1998, the tobacco industry agreed to pay the states almost $250 billion and to stop advertising on billboards or on signs posted in shopping malls, arenas and stadiums. The agreement allowed stores that sell cigarettes to display outdoor signs of no more than 14 square feet.
The companies have also argued that state regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act, which sets uniform labeling requirements and bans broadcast advertising.
The 1st U.S. Circuit Court of Appeals last year upheld Massachusetts' advertising limits and said the federal cigarette advertising law does not prohibit local restrictions on the location of tobacco advertising.
The case is scheduled to be heard by the court on April 25.
Regulations and lawsuits targeting the tobacco industry have increased in Massachusetts in recent years. The most recent lawsuit filed in state court claims all cigarettes are defective because tobacco companies know nicotine is addictive yet don't make nicotine-free cigarettes.
unknown, The Associated Press. April 23, 2001
Copyright © 2001 Associated Press Inc.. All rights reserved.