Massachusetts tobacco restrictions being challenged
Washington -- The U.S. Supreme Court will be the staging area for the latest skirmish in the tobacco wars, as cigarette makers yet again square off against anti-smoking forces, this time over a Massachusetts state regulation restricting tobacco advertisin
The outcome will have broad implications for public health efforts at the state and local level to control tobacco marketing aimed at young people.
Massachusetts' limitations, which took effect in January 1999, do not address the actual content of advertisements but stipulate where billboards and other signage can be placed. For example, outdoor tobacco advertising is banned within 1,000 feet of schools and playgrounds. In addition, in-store ads cannot face outward if located near such facilities and must be at least five feet above the floor.
With Lorillard Tobacco Co. v. Reilly, the tobacco industry filed suit in federal court to block the rule, maintaining that the Federal Cigarette Labeling and Advertising Act preempted state action. The tobacco firms also asserted that, on First Amendment grounds, the regulations are too broad and violate constitutional commercial speech protections by restricting truthful speech about a lawful product. A district court rejected this argument and the industry appealed.
Meanwhile, public health advocates argue that state and local government authority to restrict the location of advertising is crucial to efforts to protect young people from being tempted to start smoking.
"We're trying to limit the amount of advertising that kids see," said Thomas Houston, MD, director of the AMA's science and community health advocacy programs. "Think about the local 7-11 or corner market where children go to buy their soda and their bubble gum. The outside of these buildings shouldn't be plastered with tobacco advertising."
The AMA -- along with organizations such as the American Heart Assn., American Lung Assn., American Cancer Society, Center for Science in the Public Interest and Massachusetts Medical Society -- have filed a friend-of-the-court brief in support of the Massachusetts regulation.
"The restriction of intrusive forms of tobacco advertising serves values so profoundly important that this court should accord them great respect when considering the reach of the First Amendment and federal preemption," says the summary of the brief's argument. "When young children are constantly and involuntarily bombarded with seductive messages appearing on neighborhood storefronts that promote a lifelong addiction, not only is their health endangered, but their right to be free from having adult choices foisted upon them is not so subtly infringed."
Much at stake
Anti-smoking advocates are closely watching how the court reacts in the wake of last year's decision in which it ruled that the Food and Drug Administration did not have jurisdiction to regulate tobacco products unless and until Congress expressly gives the agency that authority.
"It is particularly important in light of the fact that the Supreme Court took the FDA out of the equation," said Richard Daynard, PhD, president of the Tobacco Control Resource Center and a professor at Northeastern University School of Law, Boston. State and local governments are the only entities that can advance advertising restrictions beyond those agreed to in the 1998 master settlement agreement between tobacco companies and state attorneys general. If the court now limits this power, it will be "really happy days again for tobacco companies," he said.
Until now, the public health community's arguments have fared well. Early last year, a district court rejected most of the industry's claims that the regulations violated free speech provisions of the First Amendment. The court, however, also rejected the provision that in-store ads must be at least five feet above the floor. Then, on July 17, 2000, the U.S. Court of Appeals for the 1st Circuit held that the Massachusetts regulations are not preempted by federal law and do not violate the commercial speech protections under the First Amendment.
Meanwhile, in similar cases, courts in the first, second, fourth and seventh circuits have allowed such restrictions to stand. Only the U.S. Court of Appeals for the 9th Circuit ruled against such regulations.
The U.S. Supreme Court announced in January that it would hear arguments in the Lorillard case based on First Amendment questions, preemption issues and the application of the "Central Hudson" test.
This test is a standard that weighs whether commercial speech is lawful and truthful, whether restrictions advance a substantial government interest, and whether the limits restrict more speech than necessary to achieve that interest.
So far, courts have held that cigarettes, smokeless tobacco and cigars present a real harm, and that regulating advertising of such products strongly affects use. They have also concluded that the 1,000-foot zone effectively advances the government's interest in protecting youth from being targeted by tobacco advertising.
The most vulnerable element of the regulations, then, is where the signs can be placed, Dr. Daynard explained. It's in that area that tobacco firms are making their First Amendment claims. And, in recent years, the court has been expanding First Amendment commercial speech rights. "That's the fear here," he added.
Under the best-case scenario, the court would determine that the Massachusetts regulations are neither preempted by federal law nor in violation of the First Amendment, Dr. Daynard said. The public health implication of such a decision would be to give "a go-ahead" for other states to put similar restrictions and regulations in place, he said. A reversal could protect tobacco advertising and significantly expand the notion of commercial free speech.
The Supreme Court was scheduled to hear oral arguments April 25. A decision is expected this summer.