Tobacco ad case could test commercial-speech standard

Tuesday, January 9, 2001

Commercial-speech advocates said yesterday they are warily optimistic
that the Supreme Court will strike down sweeping restrictions on tobacco
advertising imposed by the state of Massachusetts.

The court announced
yesterday it would weigh a pair of appeals filed by cigarette and cigar
companies against the regulations, which ban billboards for tobacco products
within 1,000 feet of schools or playgrounds, and restrict point-of-sale
advertising in stores that sell tobacco products. Under the regulations, store
signs must be more than 5 feet from the floor, and all tobacco products must be
out of the customers’ reach. The 1,000-foot rule also applies to signs in store
windows that are visible outside.

The regulations, first promulgated in 1999, are more sweeping than the
restrictions tobacco companies agreed to in 1998 as part of the settlement with
most of the states over the sale and marketing of their products.

The tobacco companies argue that the Massachusetts regulations cover
as much as 90% of populated areas in the state and “prohibit virtually all
outdoor advertising” for tobacco, in violation of their First Amendment

In a brief to the high court, the companies’ lawyer, Kenneth Geller,
said, “The significance — and the severity — of the (Massachusetts)
Attorney General’s regulations are magnified by the fact that they were imposed
on top of the already stringent provisions of the Master Settlement Agreement.
The regulations effectively eliminate all of the remaining outdoor advertising
that the MSA permits.”

But the 1st U.S. Circuit Court of Appeals upheld the regulations,
citing the state’s “substantial” interest in reducing tobacco consumption by
minors. That ruling set the stage for the appeal accepted by the Supreme Court
yesterday. The court will likely hear the case in April with a decision
expected in June.

“When you combine the issues of tobacco and kids, judicial minds can
get clouded,” said Seattle lawyer Cameron DeVore, a leading advocate for
commercial-speech rights. “But I can’t see how the Supreme Court can do
anything but strike down these regulations.

The cases, Lorillard Tobacco v. Reilly, and Altadis U.S.A. Inc. v.
could also prove to be an important test of the
Central Hudson test for evaluating
restrictions on commercial speech. Derived from the 1980 case
Central Hudson Gas & Elec. Corp. v. Public
Service Commission,
the standard states that governments can
restrict truthful advertising only if a substantial government interest is
served, the regulation directly serves that interest and the regulation is no
more extensive than necessary.

Another element of the test is that restrictions on commercial speech
do not receive the usually fatal “strict scrutiny” of the courts, but rather a
more relaxed level of scrutiny that allows more regulations of speech to pass
constitutional muster.

Advertising advocates say the Massachusetts case reveals the
inadequacy of the Central Hudson
test, because the 1st Circuit applied it and still found the regulations

“The shortcomings of the Central Hudson test could not be more starkly
illustrated than they are in this case,” says Richard Samp of the Washington
Legal Foundation, which filed a friend-of-the-court brief in support of the
tobacco companies. “Applying that test in an apparently good-faith manner, the
First Circuit upheld a virtually total ban on outdoor tobacco
advertising… Any First Amendment test that could even arguably be applied
to uphold sweeping restrictions of the type at issue in this case has little to
recommend itself.”

Several justices have questioned the adequacy of the
Central Hudson test in subsequent
cases, and some justices — notably Clarence Thomas — appear ready
to apply strict scrutiny in commercial-speech cases, elevating commercial
speech to the same level of First Amendment protection as political speech.

DeVore thinks the court may not go that far in the Massachusetts case,
because it can strike down the regulations without applying strict scrutiny. In
recent years, the Supreme Court has declined to consider legal challenges to
other tobacco advertising
restrictions in Baltimore, Chicago and New York. But DeVore speculates
that, as with the Florida presidential election recount dispute last month, the
Supreme Court may have finally decided, “We’re the court of last resort, these
cases keep bouncing up here, and we’d better decide it.”

The tobacco companies also say that the advertising restrictions are
preempted by the Federal Cigarette Labeling and Advertising Act. The appeals
court disagreed.

Massachusetts Attorney General Thomas Reilly expressed confidence that
the justices will sympathize with the state’s goals in imposing the

“We are optimistic that the Supreme Court will uphold these
regulations, which are an important part of our effort to address the serious
problem of tobacco use by children,” Reilly said. “It is well-documented that
tobacco advertising has a powerful appeal to children and teenagers.”