West Virginia legislators consider banning outdoor tobacco ads

Wednesday, February 23, 2000

A measure in the West Virginia House would ban outdoor tobacco billboards and other public forms of tobacco advertising.

House Bill 4347, introduced earlier this month, provides that “all outdoor advertising billboards; outdoor advertising signs and placards advertising tobacco products in arenas, stadiums, shopping malls and video game arcades; and transit advertisements advertising tobacco products shall be removed from within this state on or before” July 1, 2001.

The measure would also prohibit any “new outdoor advertising for tobacco products or new transit advertisements for tobacco products.”

The measure would exempt ads for tobacco products within “adult-only” facilities provided such ads are “not visible to persons outside the adult-only facility.”

Current West Virginia law on outdoor tobacco ads allows billboards and other forms of tobacco advertising provided they contain certain warnings such as “this product may cause mouth cancer.”

State Rep. Dale Manuel, the lead sponsor of the measure, says the legislation is designed “to protect minors.”

“The purpose of the measure is to prohibit tobacco companies from advertising in youth activities or areas where there will be a lot of young people,” he said.

Manuel said the measure would ban outdoor tobacco billboards because young people cannot help but be exposed to this type of advertising. He said his bill is actually a carry-over measure that he introduced last year, which cleared the House but was never voted on by the Senate.

At least one constitutional law expert finds the current bill constitutionally suspect. Robert O’Neil, founder of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression, said that “if courts conscientiously applied the Central-Hudson test (the test used by the U.S. Supreme Court to determine the constitutionality of laws that regulate commercial speech), they would have trouble with a law this broad.”

O’Neil notes that courts are “increasingly sympathetic to prohibitions on tobacco products and oftentimes don’t ask the tough constitutional questions.”

However, under the 1996 U.S. Supreme Court decision in 44 Liquormart v. Rhode Island, the West Virginia bill would most likely fail constitutional review, he said. In 44 Liquormart, the high court struck down a Rhode Island statute that prohibited alcohol advertisements except at places of business selling the beverages.

Justice John Paul Stevens, the author of the high court’s principal opinion in the case, wrote: “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.”

O’Neil noted that many legislative efforts attempt to regulate zoning of tobacco ads rather than completely banning them, such as the West Virginia bill. “The fact that this is a total ban, particularly in light of 44 Liquormart, makes it constitutionally invalid,” he said.

The measure has been referred to the House Committee on Health and Human Resources.