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Tobacco Industry Wins Ad Victory

The Supreme Court yesterday handed the tobacco industry a major victory over state efforts to restrict tobacco advertising, striking down Massachusetts' regulations that would have banned such advertising near playgrounds and schools.

Massachusetts had argued that the rules were necessary to prevent tobacco makers from inducing children to try a highly addictive and hazardous substance. But the court, dividing 5 to 4, agreed with the industry that the state could not adopt restrictions on top of those imposed by federal law. In addition, the court said, the rules infringed on freedom of speech.

The court's decision effectively prevents state and local governments from unilaterally adding regulations on cigarette advertising, as many have attempted to do in recent years. The court held that Congress reserved that authority to itself in a 1969 law that bans broadcast advertising of cigarettes and require health warnings on cigarette packages and ads.

Justice Sandra Day O'Connor, writing for the court, said it was "understandable for the states to attempt to prevent minors from using tobacco products," but that federal law "places limits on policy choices available to the States."

In addition, she said, "The First Amendment also constrains state efforts to limit advertising of tobacco products, because as long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information."

The ruling leaves in place the restrictions on advertising, including advertising aimed at children, which the industry agreed to in 1998 as part of its settlement of a lawsuit brought by 46 states, including Massachusetts.

Since then, the tobacco industry has enjoyed significant victories in a continuing battle with government and private attorneys. Last year, the Supreme Court decided that federal law did not give the Food and Drug Administration authority to regulate tobacco as a drug. The Bush administration recently signaled it wants to settle a federal lawsuit against cigarette manufacturers.

Steve Watson, vice president for external affairs of Lorillard Tobacco Co., pronounced the company "pleased" with yesterday's ruling that he said blocked the state's effort to "unfairly target a legal industry."

Matthew L. Meyers, president of Campaign for Tobacco-Free Kids, said it was a "setback for state efforts to protect children from the tobacco industry's marketing practices."

Massachusetts Attorney General Thomas Reilly said he was "heartened" that the court's opinion pointed out the dangers of youth smoking. But Reilly acknowledged that Massachusetts and other states are now barred from imposing new regulations unless Congress rewrites federal law.

Issued in 1999, the Massachusetts regulations tried to close what Scott Harshbarger, then the state's attorney general, described as "holes" in the 1998 settlement agreement, such as increased tobacco advertising inside retail stores. The rules would have banned tobacco signs, billboards and posters within 1,000 feet of a school, park or playground, including signs within stores that might be visible from the outside.

They also required that signs inside stores be placed at least five feet above ground level, and that tobacco products be kept where customers could not reach them without a store employee's aid.

The rules were not implemented pending legal challenges by the tobacco companies, which argued, in part, that the area encompassed by the 1,000-foot regulation includes almost all of the territory of the state's three largest cities. This, the companies argued, was tantamount to a de facto ban that would affect adults as much or more than children.

Convenience store owners opposed the rules since the ad ban could have applied to generic signs that merely said "Cigarettes for Sale." The rules could have threatened a major source of their revenue.

The court's opinion was a complicated checkerboard with different justices concurring in, or dissenting from, its various holdings.

Only O'Connor, the opinion's author, endorsed every word of it. Her fellow members of the court's center-right -- Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas -- joined her to form a five-member majority for the holding that federal law preempted the cigarette advertising restrictions and that they were unconstitutional.

Federal law prohibits states from passing a "requirement or prohibition based on smoking and health . . . with respect to the advertising or promotion" of cigarettes. O'Connor said Congress, in passing that law, meant to preempt state cigarette advertising rules such as those in Massachusetts "because they would upset federal legislative choices."

Having decided that the Massachusetts regulations could not survive, as applied to cigarettes, because of the conflict with federal law, the court majority went on to say the rules also infringed on the free-speech rights of smokeless tobacco and cigar manufacturers. That was because they encompassed much more speech than was necessary to meet what the court conceded was the state's legitimate goal of stopping teen smoking, the majority said.

In dissent, Justice John Paul Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, wrote that Congress, in imposing requirements for cigarette makers to detail the potential harm of their products, did not mean to preclude states and localities from restricting billboard or other advertising.

Stevens, in a portion of his dissent joined by Breyer and Ginsburg, said the contention of the makers of cigars and smokeless tobacco of a violation of free speech was a serious one, but should be sent back to a lower court for a trial. Souter said he would also send back to the lower court the question of the constitutionality of the 1,000-foot limit.

Souter joined the majority in striking down the five-foot rule for ads inside a store. The court said they were pointless, since children can look up to see the signs.

The court unanimously upheld one part of the state's plan, the rules requiring cigarettes to be kept out of customers' reach. O'Connor said that met the state's purpose of denying tobacco to minors without infringing on adults' freedom.


Charles Lane, Washington Post. June 29, 2001

Copyright © 2001 The Washington Post Company. All rights reserved.