- The Washington Times - Friday, June 29, 2001

States cannot place special restrictions on cigarette advertising and store displays because the federal government has primary power over "smoking and health" regulations, the Supreme Court ruled yesterday.
The court decreed unconstitutional provisions of Massachusetts law governing cigar and chewing-tobacco ads, but — because federal law already regulates cigarette ads — could only say in passing that state curbs targeting cigarette billboards and retail ads likewise violate the First Amendment.
"So long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information," the court said in an opinion so splintered that Justice Sandra Day O'Connor, who wrote it, declined to analyze the vote.
On the main issue of pre-emption, Justice O'Connor was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.
Justice John Paul Stevens wrote a dissent, joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
"You need a road map to know which justices agree with which parts of this opinion," Justice O'Connor said in announcing from the bench the last case decided before the justices began summer recess.
Because it was printed on eight-and-a-half-inch-by-eleven-inch paper instead of the smaller, bound format, it appeared to have been finished at the last minute.
The justices were unanimous that state zoning that applies to all businesses may govern smoke shops and the general location of billboards, but not much else. Three other opinions explained individual views at length, and the vote on the main opinion had four separate lineups.
A 1969 federal law forbids broadcast cigarette ads and requires health warnings on packages and advertising, but the law that imposes those restrictions stakes out the entire turf relating to cigarettes as a matter for federal regulation, the Supreme Court decided.
Among restrictions Massachusetts sought to impose in a law that never went into effect were a ban on ads visible outside a retail store within 1,000 feet of playgrounds and schools, which virtually included all urban areas of the state. It also require promotional material in stores to be displayed more than five feet above the floor.
"From a policy perspective, it is understandable for the states to attempt to prevent minors from using tobacco products before they reach an age where they are capable of weighing for themselves the risks and potential benefits of tobacco use, and other adult activities. Federal law, however, places limits on policy choices available to the states," the court said.
The justices upheld Massachusetts' regulation that clerks personally complete sales of cigarettes, cigars and smokeless tobacco.
"We're pleased that the court agreed that these regulations went too far and struck the wrong balance," said William S. Ohlemeyer, Philip Morris vice president and general counsel.
The National School Boards Association, which filed a brief in the case that opposed marketing tobacco near schools, called immediately on the tobacco industry not to exploit the decision.
"We hope that tobacco companies do not view this as an invitation to overwhelm children with advertising messages," said Anne Bryant, executive director of the association.
Stephen A. Bokat, executive vice president of the U.S. Chamber of Commerce Litigation Center, called the case "a major victory for commercial free speech," a category which is not accorded as much freedom as individual speech.
"Truthful commercial messages about lawful products and services should be accorded the same constitutional protection as is noncommercial speech," Mr. Bokat said.

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