Mass., industry to clash in court over tobacco ads
WASHINGTON - Massachusetts and the Marlboro Man are heading for a showdown today in the US Supreme Court.
At stake, state officials say, is their power to protect children's health and prevent them from smoking by enforcing a 1999 ban on tobacco advertising within 1,000 feet of schools, playgrounds, and parks. If upheld by the high court, Massachusetts' far-reaching restrictions could be copied around the nation.
The tobacco industry, in a case it appealed to the Supreme Court, contends that the rules, which bar advertising inside as well as outside retail stores near such facilities, effectively censor them from reaching adult consumers in most urban areas and amount to an unconstitutional violation of their First Amendment free speech rights and an abuse of state authority.
The nine justices will hear arguments from lawyers in the case - Lorillard Tobacco Co., et al., v. Thomas F. Reilly, attorney general of Massachusetts - for one hour today and are expected to issue an opinion before the court's term ends in late June.
''Massachusetts has gone too far in restricting truthful advertising,'' said Mark Berlind, associate general counsel for Philip Morris Inc., one of the petitioners. ''It has tried to regulate it almost out of existence in the most populated areas of the state ... and almost completely shut down our avenues for advertising to adults.''
If it rules in the state's favor, Berlind said, the court will send a chilling message to advertisers of products legal for adults.
Reilly says the regulations drafted by his office do not prohibit advertising to adults. Rather, he said, they are aimed appropriately at preventing children from illegal activity - buying tobacco products - and ''becoming the next generation of smokers induced by the powerful and overwhelming advertising'' of the companies.
''The companies know what they are doing,'' Reilly said, noting that nationally the tobacco industry spent a record $8.2 billion on advertising in 1999, one year after it reached an agreement with 46 states to restrain its marketing and not target youth. ''They have to get kids hooked at an early age or they lose business.''
In ruling last year that the federal Food and Drug Administration does not have authority to control tobacco products, the Supreme Court played a critical role in shifting the enforcement action from Washington to the states. Now the high court is central again, as the Lorillard case is arguably the most important battleground between antismoking, public health advocates and cigarette companies over how far states can go to separate children from tobacco.
Many states and cities have imposed tobacco-advertising restrictions, but none has gone as far as Massachusetts. The Bush administration signaled its support of the state's efforts when it asked the high court for permission to argue against the cigarette companies in the Lorillard case.
Assistant Attorney General William Porter will argue the case for Massachusetts. Jeffrey Sutton, a former Ohio state solicitor who has argued several states-rights cases before the Supreme Court, including Alabama's successful challenge to the Americans with Disabilities Act this term, will represent the tobacco companies.
The American Cancer Society, the National Association of School Boards, and the attorneys general of 39 states have filed briefs supporting Massachusetts. Backing the tobacco industry are the US Chamber of Commerce, the National Association of Convenience Stores, and the American Association of Advertising Agencies.
In their brief on behalf of the cigarette companies, the American Civil Liberties Union and the Newspaper Association of America said: ''The values of free speech require unwavering support for the First Amendment rights of all speakers, including advertisers, even in cases where Americans might disagree with the message being conveyed.''
First Amendment scholars and business groups are watching to see if the court uses the case to change its longtime position that commercial speech is not entitled to the same constitutional protection as political, or core, speech.
Floyd Abrams, a First Amendment lawyer, said some of the court's recent opinions suggest that many of the justices are uncomfortable with a standard that differentiates types of speech and may be inclined to give advertisers more liberty and government agencies less authority over commercial speech.
''You would think the last place for the court to do it would be in a case about tobacco advertising that could adversely affect children,'' Abrams said. ''But when the court is ready for a significant doctrinal change, it is ready.''
The implications of such a change are huge. A new standard for commercial speech could lift existing restrictions on the content of advertising by drug companies, liquor manufacturers, firearms dealers, and the cigarette makers themselves.
According to Gregory Connolly, director of the tobacco-control program in the Massachusetts Department of Public Health, the disputed regulations grew out of the agency's Operation Storefront in 1998. The state surveyed 3,000 vendors in 125 Massachusetts cities and towns, and found tobacco advertising increased with proximity to schools and dominated the displays in and outside convenience stores, particularly in urban, minority neighborhoods.
In 1999, four tobacco companies - Lorillard, Brown & Williamson, R.J. Reynolds, and Philip Morris - and US Smokeless Tobacco Co. sued the state in federal district court, asserting that the attorney general had both preempted the Federal Cigarette Labeling and Advertising Act and violated the First Amendment with rules that banned outdoor and indoor (but visible from outside) tobacco advertising within 1,000 feet of schools, playgrounds, and parks.
When the district court ruled that the outdoor ban could stand, the cigarette makers appealed the case to the First Circuit Court. Last year, that panel upheld the regulations, and months later the tobacco industry took the case to the Supreme Court.
While the courts have stopped the state from enforcing its regulations, teen use of tobacco - an estimated 30 percent of all Massachusetts high school students report smoking in the last 30 days - remains ''unacceptably high,'' Reilly said.
''If we lose, the health of hundreds of thousands of kids in Massachusetts and millions of kids across the nation will be put at risk,'' Connolly said. ''If we prevail, we send the Marlboro Man packing from storefronts across the state.''