States can't ban antismoking ads

In victory for tobacco, high court rules against ban on cigarette billboards near schools.

States are preempted by an existing federal law from passing regulations restricting tobacco advertisements that might appeal to children.

In a major setback to anti-tobacco activists trying to protect young people from the influence of tobacco advertising, the US Supreme Court ruled on Thursday that such regulations are barred by the Federal Cigarette Labeling and Advertising Act.

The act was passed in 1969 as part of a congressional requirement that health warnings be posted on all cigarette packages.

In striking down regulations in Massachusetts aimed at barring tobacco advertisements within 1,000 feet of any school or playground, the nation's highest court in a highly splintered decision offered an array of reasons for its ruling. In addition to the federal law and preemption, the court found that part of the regulations violated the First Amendment rights of the tobacco companies. "From a policy perspective, it is understandable for the states to attempt to prevent minors from using tobacco products before they reach an age where they are capable of weighing for themselves the risks and potential benefits of tobacco use," writes Justice Sandra Day O'Connor for the majority. "Federal law, however, places limits on policy choices available to the states."

The opinion overturns and in part upholds a earlier ruling by a federal appeals court in Boston that had upheld much of the Massachusetts tobacco regulations.

"Congress enacted a comprehensive scheme to address cigarette smoking and health in advertising and preempted state regulation of cigarette advertising that attempts to address that same concern, even with respect to youth," Justice O'Connor writes. "The First Amendment also constrains state efforts to limit advertising of tobacco products, because so 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."

To antitobacco activists, the decision marks a major setback in efforts to counteract the influence on young people of multimillion-dollar advertising campaigns that seek to portray smoking as glamorous, sophisticated, and healthy. Richard Daynard of the Tobacco Control Resource Center at Northestern University says that, combined with the high court's ruling last year throwing out Food and Drug Administration regulation of tobacco, the justices have now thrown out both federal and state efforts to protect young people from smoking.

"This case demonstrates dramatically that the ideological block that runs this court comes down squarely in favor of the predatory tobacco merchants" rather than the nation's youth, Mr. Daynard says.

For the tobacco industry and those supporting its position, the decision is a near home run. Richard Samp of the Washington Legal Foundation says he was not surprised by the preemption decision. He says the First Amendment portion of the ruling is "strong." "They ruled this was essentially a total ban on truthful speech," he says.

At issue in the case, Lorillard Tobacco Co. v. Reilly, were a series of regulations enacted in 1999 by Massachusetts Attorney General Tom Reilly.

The regulations banned outdoor advertising of tobacco products within 1,000 feet of a school or playground. It also barred tobacco ads positioned lower than five-feet high (or roughly at kids' eye level) in stores selling tobacco that are located within 1,000 feet of a school or playground.

The Massachusetts restrictions, according to officials, were aimed at protecting children from the pervasive influence of cigarette advertisements and a life-long addiction to tobacco.

Tobacco companies saw the regulations are as a violation of their First Amendment right to promote a legal product. They argued that even if their product might be harmful to children and even illegal to sell to children, the government has no business blocking adults from viewing tobacco advertisements.

In addition, the companies argued that federal law preempts the Massachusetts regulations. That law bars city and state governments from restricting the location of cigarette advertisements, according to tobacco lawyers.

Lawyers for Massachusetts countered that the tobacco companies were misreading the federal law. They say it doesn't apply to the Massachusetts regulations.

Robert P. Hey contributed to this report.

(c) Copyright 2001. The Christian Science Monitor

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