Narrow majority strikes down part of state tobacco ad rules

Narrow majority strikes down part of state tobacco ad rules

• Rules promulgated by the state attorney general to limit billboard advertising ran afoul of the First Amendment by restricting too much speech.

The U.S. Supreme Court protected a narrow segment of the commercial speech rights of tobacco advertisers in one of the court’s final decisions of the term. A five-justice majority ruled on June 28 that a Massachusetts regulation on outdoor and point-of-sale advertising related to smokeless tobacco and cigars violated the First Amendment. The court, however, upheld the constitutionality of another state regulation on the sales practices of all tobacco products.

The court, in an opinion written by Justice Sandra Day O’Connor, said it found no need to break new ground in the area of commercial speech regulations and relied on the legal principles in place for more than two decades.

In 1999, the Massachusetts attorney general imposed new regulations on tobacco advertising, particularly in the proximity of schools. The attorney general argued successfully in the earlier stages of the case that limiting the exposure of children to tobacco advertising would combat the public health problem of underage tobacco use.

The smokeless tobacco and cigar advertisers told the court that the state may have shown the connection between exposing youth to cigarette ads and underage smoking, but not a connection with their products. In dismissing the tobacco company’s argument, the high court specified the contrary findings from numerous Food and Drug Administration studies as well as those by the industry.

O’Connor wrote, “[T]he attorney general has provided ample documentation of the problem of underage use of smokeless tobacco and cigars. [We] disagree with petitioners’ claim that there is no evidence that preventing targeted campaigns and limiting youth exposure to advertising will decrease underage use of smokeless tobacco and cigars.”

However, when it came to outdoor advertising of all tobacco products, the court had a more sympathetic ear to business.

The court invalidated a regulation which carried a 1,000-foot restriction on tobacco advertising near secondary or elementary schools and playgrounds. Calling the regulation an “onerous burden on speech,” the majority said as long as the sale and use of tobacco is lawful for adults, the First Amendment protects the tobacco industry’s right to communicate information about its product to adult consumers.

(Lorillard Tobacco Co. v. Reilly; Petitioners’ counsel: Jeffrey S. Sutton, Columbus, Ohio) — EU

© 2001 The Reporters Committee for Freedom of the Press

Return to: RCFP Home; News Page