Supreme Court to Hear Challenge of Mass. Tobacco Ad Law
The Supreme Court yesterday agreed to hear an appeal from the tobacco industry challenging a Massachusetts law that places several restrictions on the advertising and sale of tobacco products, the New York Times reports. In doing so, the Court will "decide whether state restrictions on cigarette advertising violate either federal law or the manufacturers' rights of free speech" (Greenhouse, New York Times, 1/9). At issue is a 1999 rule adopted by Massachusetts Attorney General Thomas Reilly (D) that contained three restrictions designed to insulate children from tobacco advertising (AP/Worcester Telegram & Gazette, 1/9). First, all "outdoor tobacco ads" within 1,000 feet of schools, playgrounds or public parks with a playground were banned. Second, all tobacco ads were required to be placed higher than five feet off the ground in retail stores near schools and parks. Third, tobacco products were required to be within the reach only of store clerks and not customers (Denniston, Baltimore Sun, 1/9). Last July, the 1st U.S. Circuit Court of Appeals upheld all of these restrictions, saying "it was enough for the state to show that the regulations advanced the goal of reducing tobacco use among minors and that they were no more restrictive of [free] speech rights than necessary," (Biskupic, USA Today, 1/9). The court will hear the case in April, with a decision expected by early summer (Baltimore Sun, 1/9).
The decision will hinge in part on where tobacco advertising fits into the Court's "evolving approach to commercial speech," the New York Times reports. In upholding the Massachusetts restrictions, the 1st Circuit relied on a 1980 precedent stating that government restriction on commercial speech will be upheld if they are not more extensive than necessary to advance a "substantial" government interest. In their appeal, however, the tobacco companies argue that the Massachusetts restrictions are of such "unparalled breadth and severity [on] truthful, nonmisleading commercial speech" that they violate the First Amendment (New York Times, 1/9). Further, tobacco companies argue that the restrictions effectively ban advertising in "all" of Boston's "public areas," as 91% of the city is with 1,000 feet of a school or park. And the Los Angeles Times reports that the Court, "especially" Justices Antonin Scalia and Clarence Thomas, has "sharply criticized" the 1980 precedent, with these members favoring giving commercial speech the same constitutional protections as political speech (Savage, Los Angeles Times, 1/9). Massachusetts has defended the regulations by saying the regulations were "aimed at children who could not legally buy tobacco products in any event and 'plainly are not directed at dampening the demand for tobacco products among legitimate purchasers" (New York Times, 1/9). The tobacco companies also contend that the Massachusetts rules violate a federal law that says the "states may not impose extra restrictions on the advertising of cigarettes." State lawyers, however, argue that this law applies only to cigarette pack warning labels, not billboard ads. In 1999, however, the U.S. 9th Circuit Court of Appeals cited this law in striking down a ban on tobacco ads in Tacoma, Wash. The industry also "objects" to the Massachusetts restrictions because they go further than those tobacco companies agreed to as part of the 1998 national tobacco settlement (Los Angeles Times, 1/9).
The decision will hinge in part on where tobacco advertising fits into the Court's "evolving approach to commercial speech," the New York Times reports. In upholding the Massachusetts restrictions, the 1st Circuit relied on a 1980 precedent stating that government restriction on commercial speech will be upheld if they are not more extensive than necessary to advance a "substantial" government interest. In their appeal, however, the tobacco companies argue that the Massachusetts restrictions are of such "unparalled breadth and severity [on] truthful, nonmisleading commercial speech" that they violate the First Amendment (New York Times, 1/9). Further, tobacco companies argue that the restrictions effectively ban advertising in "all" of Boston's "public areas," as 91% of the city is with 1,000 feet of a school or park. And the Los Angeles Times reports that the Court, "especially" Justices Antonin Scalia and Clarence Thomas, has "sharply criticized" the 1980 precedent, with these members favoring giving commercial speech the same constitutional protections as political speech (Savage, Los Angeles Times, 1/9). Massachusetts has defended the regulations by saying the regulations were "aimed at children who could not legally buy tobacco products in any event and 'plainly are not directed at dampening the demand for tobacco products among legitimate purchasers" (New York Times, 1/9). The tobacco companies also contend that the Massachusetts rules violate a federal law that says the "states may not impose extra restrictions on the advertising of cigarettes." State lawyers, however, argue that this law applies only to cigarette pack warning labels, not billboard ads. In 1999, however, the U.S. 9th Circuit Court of Appeals cited this law in striking down a ban on tobacco ads in Tacoma, Wash. The industry also "objects" to the Massachusetts restrictions because they go further than those tobacco companies agreed to as part of the 1998 national tobacco settlement (Los Angeles Times, 1/9).
Steve Watson, spokesperson for Lorillard Tobacco Co., one of the appellants in the case, said, "We are pleased that the Supreme Court has decided to review this case, which in our view, restricts the rights of tobacco companies to advertise their product to adult smokers in Massachusetts" (AP/Worcester Telegram & Gazette, 1/9). Antitobacco activists and politicians, however, took a different view. Referring to last year's 5-4 Supreme Court ruling that the FDA could not regulate cigarettes as a drug, Richard Daynard, a law professor at Boston-based Northeastern University and head of the Tobacco Industry Liability Project, said, "It's chilling to consider that these are the same five justices (who) threw out the FDA's ability to regulate tobacco. I think it would be unseemly to use the First Amendment to protect the predatory marketing practices of an industry that makes a deadly product" (Los Angeles Times, 1/9). Reilly promised a "rigorous" defense of the state's regulations in front of the Supreme Court. And state Rep. Rachel Kaprielian (D), chair of the Legislative Tobacco Control Caucus, said, "It's dangerous when you put commercial speech in the same realm as political speech. This is still about profit" (AP/Worcester Telegram & Gazette, 1/9).
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