At issue is whether the ban violates federal law and the commercial free-speech guarantees of the First Amendment.
Though the case involves Massachusetts regulations, an eventual Supreme Court ruling would apply nationally and could shape how tobacco products are promoted across the United States.
Massachusetts is only one of a number states and local jurisdictions that have enacted "diverse and increasingly severe limitations on public display of tobacco advertisements," the major tobacco companies told the Supreme Court in a petition filed last year. The restrictions even limit the display of such ads inside "retail establishments," the petition said.
In May 1998, the attorney general of Massachusetts "proposed the sweeping regulations on tobacco advertising that are challenged in this case," the petition said. While the regulations were pending, the state and 45 others settled their massive lawsuit against the four major tobacco companies. The companies agreed to pay the states more than $200 billion over 25 years.
In addition, the settlement with the states included restrictions on outdoor advertising, ads in stadiums, shopping malls and video arcades. It also included a ban on any ad outside a retailer that exceeded 14 square feet.
Despite those agreements, the petition said, Massachusetts went forward with its own proposed regulations that added still more restrictions.
The Massachusetts ban "effectively eliminates the use of outdoor advertising to provide truthful brand, availability, price and other information to adult consumers," and "expressly prohibits" outdoor ads of cigarettes and "smokeless" tobacco within 1,000 feet of any public playground, play area in a public park, elementary school or secondary school.
An additional ban applies to cigar ads.
The zones included in the ban are "so extensive" that they include "virtually the entire populated area of Massachusetts," the tobacco companies contended.
The state regulations also order that tobacco ads not be placed lower than 5 feet from the floor in any retail establishment within the 1,000-foot zones and require that tobacco products be placed "out of the reach" of all customers in an area accessible only to store personnel.
The tobacco companies and cigar manufacturers filed separate challenges to the restrictions in May 1999, citing the First Amendment and the 1969 Federal Cigarette Labeling and Advertising Act.
The act prohibits the states from imposing "any requirement or prohibition based on smoking and health with respect to the advertising or promotion" of cigarettes.
However, a federal judge ruled largely for the state, calling cigarette ads "functional pornography." A federal appeals court largely affirmed the judge, effectively upholding the state regulations.
The tobacco companies and cigar manufacturers then asked the Supreme Court for review in separate cases. The justices combined the two cases for argument.
Speaking for the tobacco companies Wednesday, Columbus, Ohio, attorney Jeffrey Sutton told the justices that the Massachusetts restrictions were pre-empted by the 1969 federal law, and that they violated the commercial free-speech guarantees of the First and 14th Amendments.
Justice Sandra Day O'Connor said Massachusetts was trying to keep juveniles from smoking. "Is the state not entitled to do something," she asked, even given the apparent conflict with federal law? When Sutton replied that state action was limited under the federal law, O'Connor said the case might be better focused on juvenile smoking. "I think the emphasis on 'smoking and health' is way off-base here."
Sutton repeatedly tried to hammer home his free-speech argument, citing Supreme Court precedents protecting commercial speech. The Massachusetts policy "does suppress a substantial amount of truthful speech targeted to adults," he said.
Massachusetts Assistant Attorney General William Porter, arguing for the state, said Sutton and the tobacco companies were misinterpreting the 1969 law. "What Congress was trying to achieve was to obtain control over the health warning in cigarette advertising," not limit what the states could do in restricting the location of ads.
Porter was supported by the Justice Department. Acting Solicitor General Barbara Underwood, a Clinton administration holdover pending Senate confirmation of Bush administration nominee Theodore Olson, said the state has a "compelling" interest in keeping young people from smoking, one of the main criteria for surviving a free-speech evaluation by the courts.
Justice Clarence Thomas asked Underwood whether a state could place similar restrictions on the ads of fast-food restaurants, "including McDonald's," because such food was bad for children.
Underwood responded that the crucial age for children to become addicted to a lifetime of smoking occurred between 14 and 18, which made tobacco unlike any other product.
A Supreme Court decision in the case should come before the current term ends in late June or early July.
(No. 00-596, Lorillard et al vs. Atty. Gen. Reilly; and No. 00-597, Altadis U.S.A. et al vs. Atty. Gen. Reilly)
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