Supreme Court sides with tobacco companies on ad rules

By The Associated Press

06.28.01

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Attorney Stanley Rosenblatt, left, shows cigarette ad in magazine to jurors during testimony of Martin Orlowsky, right, president and CEO of Lorillard Tobacco Co., in Miami on June 29, 2000. Orlowsky apologized for any misrepresentation or confusion that might have affected anyone's decision to start or quit smoking.

WASHINGTON — A state government may not impose its own broad advertising restrictions on tobacco beyond the federal law that bans cigarette ads on television and requires warning labels on packages, the Supreme Court ruled today.

The tangled ruling was a victory for a group of cigarette makers that had fought proposed ad restrictions in Massachusetts as both a violation of federal law and an unconstitutional limit on the companies' free speech.

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

''We're pleased that the court agreed that these regulations went too far and struck the wrong balance,'' said William S. Ohlemeyer, Philip Morris vice president and general counsel.

The court was unanimous on some points, but splintered on others.

The court, in a 5-4 vote, held that Massachusetts did not have the right to issue its own restrictions despite those contained in federal law.

The five-member conservative-to-moderate wing, led by swing voter Justice Sandra Day O'Connor, ruled that the 1969 federal cigarette ad law trumps the additional rules Massachusetts wanted to impose.

The majority's ruling on that point focused narrowly on the language of the Massachusetts ad ban, but the justices' reasoning would extend to other states contemplating similar restrictions.

Justice John Paul Stevens disagreed, along with Justice Ruth Bader Ginsburg, Stephen G. Breyer and David Souter. In their view, the overarching federal law does not preclude states from imposing separate restriction on the location of tobacco ads.

If the court had chosen to do so, it could have stopped there.

But the justices went on to give cigarette makers a partial free-speech victory in Lorillard Tobacco v. Reilly, and Altadis U.S.A. v. Reilly, ruling that the state's plans for bans on outdoor advertising and signs would violate the First Amendment. The state does have the right to restrict where tobacco products may be displayed inside stores, the justices ruled.

Justice Clarence Thomas wrote separately to reiterate his belief that commercial speech such as advertising deserves the same kind of free-speech protection as political or artistic expression.

The case was the last decided in the term that closed today, and its length and complexity revealed deep ideological differences. Justices may have been revising it until the last minute — the opinion was handed out on regular notebook-size paper instead of in the smaller, bound form that takes more time to prepare.

Massachusetts had proposed banning outdoor advertising of all tobacco products within 1,000 feet of schools and playgrounds, including ads outside stores and those inside stores that can been seen from outside.

The state law also required that tobacco products be kept behind store counters, and it prohibited advertising at children's eye level.

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

''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, and other adult activities,'' O'Connor wrote. ''Federal law, however, places limits on policy choices available to the states.''

Turning to the First Amendment question, the court said that states cannot simply ban advertising for a product that remains legal for sale to adults, and ''the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.''

The court rejected the tobacco companies' claims that the state went too far in trying to restrict sales of cigars and snuff to minors. The court found that there is enough evidence of a problem that the state did have an interest in keeping those products away from children.

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

Tobacco companies said Massachusetts could not unilaterally impose its own restrictions because of the way Congress wrote the 1969 law that took cigarette ads off the airwaves and added warning labels to tobacco packaging.

Part of the law prohibits states from passing a ''requirement or prohibition based on smoking and health ... with respect to the advertising or promotion'' of cigarettes.

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

The Supreme Court agreed.

''To the extent that federal law and the First Amendment do not prohibit state action, states and localities remain free to combat the problems of underage tobacco use by appropriate means,'' O'Connor wrote.

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

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

Update

Mix-and-match majority finds tobacco-ad rules too restrictive
Analysis Supreme Court issues partial free-speech victory but stops short of scrapping traditional commercial-speech test.  06.29.01

Previous

Tobacco ad case not likely to set First Amendment precedent
Analysis Free-speech issues receive little focus during Supreme Court arguments, diminishing chances that ruling will affect commercial-speech protections.  04.26.01