WASHINGTON – The Supreme Court on Thursday placed significant limits on the ability of state and local governments to regulate tobacco advertising in a case from Massachusetts that also appeared to invalidate a similar law in New York City.
All nine justices agreed that smoking by children is a serious public health problem that government policies can appropriately address. But invoking an amalgam of statutory and constitutional reasons, all nine also found invalid the core of a sweeping tobacco advertising ban, the most far-reaching of any state, adopted two years ago in Massachusetts.
The decision was a victory for the tobacco industry as well as for the advertising industry, which had argued on behalf of the cigarette makers for a vigorous First Amendment protection for advertising.
The Massachusetts restrictions, which included banning all advertising that could be seen within a 1,000-foot radius of schools and playgrounds, went considerably beyond those in the 1998 settlement between four major cigarette manufacturers and 46 states.
States would still be free to try other means to limit children’s smoking, such as raising the legal age to buy tobacco or increasing the price of cigarettes, said Richard Daynard, president of the Tobacco Control Resource Center in Boston.
The Massachusetts regulations would have gone further than the 1969 law, and further than the 1998 settlement that stopped billboard advertising and signs in places such as sports stadiums.
The ruling Thursday does not threaten that settlement, but it could complicate efforts to go further at the federal and state levels. Although the industry has not challenged the 32-year-old federal ban on cigarette ads on radio and television, the court’s constitutional analysis of the industry’s right to market its products to an adult audience would appear to make the ban vulnerable if it were attacked on First Amendment grounds.
With a 5-4 majority opinion by Justice Sandra Day O’Connor, the decision Thursday overturned a ruling issued last year by the 1st U.S. Court of Appeals, in Boston, which rejected challenges brought against the Massachusetts regulations by makers of cigarettes, smokeless tobacco and cigars. This array of plaintiffs complicated the case for the Supreme Court because federal pre-emption, one basis for the cigarette industry’s challenge, did not apply to the other two branches of the tobacco industry.
The entire court agreed that the law’s main element, restrictions on outdoor advertising, violated the manufacturers’ right to commercial speech because the restrictions, while aimed at protecting children from exposure to the advertising, interfered with the tobacco industry’s right to address its message to adult consumers, for whom the products are lawful.
In the majority opinion, Justice O’Connor wrote that “in some geographical areas, these regulations would constitute nearly a complete ban on the communication of truthful information” about the products.
Tobacco firms said Thursday the ruling was a relief but will not have much effect on the way they sell their products.
“We’ve already done a lot of things to change the way cigarettes are marketed or advertised,” said William Ohlemeyer, vice president and general counsel of Philip Morris. “This decision [does not mean] an effort to advertise more broadly or aggressively.”
