Supreme Court Overturns State Tobacco Ad Ban

The Supreme Court "dealt a major blow" to Massachusetts' "aggressive" underage anti-smoking program yesterday, striking down the state's ban on tobacco advertising within 1,000 feet of elementary and secondary schools, parks and playgrounds, the Boston Globe reports. In the unanimous decision, the high court overturned two lower court decisions, saying that the ban violated tobacco companies' First Amendment rights. The regulations, promulgated in 1999, have not yet been enforced, and tobacco companies have challenged the regulations since their introduction. In another decision, the court ruled 5-4 that Massachusetts "illegally pre-empted" the federal Cigarette Labeling and Advertising Act of 1965, which prevents states from restricting tobacco advertising content. In a majority opinion, Justice Sandra Day O'Connor wrote, "The state's interest in preventing underage tobacco use is substantial, even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. Protecting children ... does not justify an unnecessarily broad suppression of speech addressed to adults." O'Connor added that the state's regulations were "too broad" and "would result in a near-total ban of tobacco advertising in the state's major metropolitan areas," the Globe reports. Rejecting Massachusetts' claim that it "retained zoning powers" to regulate tobacco advertising near schools and parks, O'Connor said that Congress "gave itself sole authority" to regulate tobacco advertising content. But Justice John Paul Stevens, writing the dissenting opinion, said, "I would accord (Massachusetts) some latitude in imposing restrictions that can have only the slightest impact on the ability of adults to purchase a poisonous product and may save some children from taking the first step on the road to addiction" (Leonard, Boston Globe, 6/29).

The majority of the court also struck down a regulation requiring that tobacco ads inside stores be at least five feet from the ground, saying that the restriction was "pointless, since children can look up to see the signs." However, the high court unanimously upheld a state regulation requiring that cigarettes be out of customers' reach. That restriction meets the "state's purpose of denying tobacco to minors without infringing on adults' freedom," O'Connor said (Lane, Washington Post, 6/29). The court's ruling "does not affect other anti-tobacco regulations," such as verifying the age of individuals who appear under age 27 and prohibiting of single cigarette sales. Massachusetts Attorney General Thomas Reilly (D) said those regulations would be implemented "immediately" (AP/Worcester Telegram & Gazette, 6/29).

Philip Morris Co. Vice President and Associate General Counsel William Olemeyer called the high court's decision "very important" to the company, adding, "Tobacco use among children and adolescents is a big issue, but there are limits to what a state can do." The ruling is a "significant defeat" for anti-tobacco groups, the Globe reports (Boston Globe, 6/29). Richard Daynard, a law professor at Northeastern University, said, "The idea that the marketers of a deadly, addictive product who are doing their damnedest to hook teenagers have a constitutional right to do this is really shocking" (Savage, Los Angeles Times, 6/29). Massachusetts Public Health Commissioner Dr. Howard Koh said, "This decision ... is a major disappointment and a primary opportunity lost" (Lawrence, Boston Herald, 6/29). Reilly said the decision "disappointed" him, but added, "We certainly are not going to back off from trying to protect" children. The high court's decision is "a wake-up call" to Congress, which should create an agency with the authority to regulate tobacco products and marketing, Matthew Myers, president of the Campaign for Tobacco-Free Kids, said (Boston Globe, 6/29). Rep. Martin Meehan (D-Mass.) said he intends to introduce federal legislation that would overturn the law banning state regulation of tobacco ads. He said, "Congress hasn't acted because the Congress has been too beholden to the big money that big tobacco contributes to political campaigns" (AP/Worcester Telegram & Gazette, 6/29).