Court Strikes Down Tobacco Ad Ban

W A S H I N G T O N, June 28, 2001 -- A state government may not impose its ownadvertising restrictions on tobacco beyond the broad federal lawthat bans cigarette ads on television and requires warning labelson packages, the Supreme Court ruled today.

The unanimous but tangled ruling was a victory for a group ofcigarette makers that had fought proposed ad restrictions inMassachusetts as both a violation of federal law and anunconstitutional limit on the companies' free speech.

The court's ruling focuses narrowly on the language of theMassachusetts ad ban, but the justices' reasoning would extend toany other state contemplating similar restrictions.

The court gave cigarette makers a partial free-speech victory,ruling that the state's plans for bans on outdoor advertising andsigns would violate the First Amendment. The state does have theright to restrict where tobacco products may be displayed insidestores, the justices ruled.

Massachusetts' plan to ban tobacco ads near playgrounds andschools has been on hold pending the high court ruling.

Federal Law 'Limits State Policy Choices'

Massachusetts proposed banning outdoor advertising of alltobacco products within 1,000 feet of schools and playgrounds,including ads outside stores and those inside stores that can beenseen from outside.

The state law also required that tobacco products be kept behindstore counters, and it prohibited advertising at children's eyelevel.

The state cited reports by the Food and Drug Administration andthe surgeon general that tobacco advertising significantlyinfluences children's tobacco use.

"From a policy perspective, it is understandable for the statesto attempt to prevent minors from using tobacco products beforethey reach an age where they are capable of weighing for themselvesthe risks and potential benefits of tobacco use, and other adultactivities," Justice Sandra Day O'Connor wrote. "Federal law,however, places limits on policy choices available to the states."

Turning to the First Amendment question, the court said thatstates cannot simply advertising for a product that remains legalfor sale to adults, and "the tobacco industry has a protectedinterest in communicating information about its products and adultcustomers have an interest in receiving that information."

Companies Sought 'Commercial Speech' Protection

The court upheld part of a lower federal court decision in thecase, overturned part of that lower opinion and sent the case backfor further review.

Tobacco companies said Massachusetts cannot take such aunilateral step because of the way Congress wrote the 1969 law thattook cigarette ads off the airwaves and added warning labels totobacco packaging.

Part of the law prohibits states from passing a "requirement orprohibition based on smoking and health … with respect to theadvertising or promotion" of cigarettes.

The tobacco companies argued that trumps Massachusetts' plan,which would go further than either the 1969 law or the 1998billboard ban negotiated between states and the tobacco industry.

The Supreme Court agreed.

"To the extent that federal law and the First Amendment do notprohibit state action, states and localities remain free to combatthe problems of underage tobacco use by appropriate means,"O'Connor wrote.

The tobacco companies had asked the court to use the case toraise the level of protection for "commercial speech," oradvertising. Many business interests and many conservative legaltheorists would like to see advertising accorded free-speechprotections more like political and artistic expression.

The court generally has held that commercial speech such asadvertising may be regulated under the First Amendment, but notbanned.

Lawyers for Massachusetts and the federal government arguedCongress did not intend to prevent states from regulating thelocation of ads. Only the content of ads is addressed by thefederal law, lawyers for Massachusetts said.

The regulations were to have gone into effect in February, butwere postponed by the tobacco companies' legal challenge.

The cases are Lorillard Tobacco vs. Reilly, 00-596, and AltadisU.S.A. vs. Reilly, 00-597.