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Published in Print: May 2, 2001, as High Court Hears Case On Tobacco-Ad Ban Near Schools

High Court Hears Case On Tobacco-Ad Ban Near Schools

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The tobacco industry last week urged the U.S. Supreme Court to strike down Massachusetts regulations designed to limit children's exposure to cigarette advertising near schools and parks.

The state's set of rules, which in practical terms mostly affects tobacco advertising at retail stores, is pre-empted by a federal cigarette-advertising law and also violates the tobacco companies' First Amendment rights, said Jeffrey S. Sutton, the lawyer for four major cigarette manufacturers

"It abridges free speech," Mr. Sutton said. "It does suppress a substantial amount of speech directed at adults about a lawful product."

But lawyers for the state and the U.S. Department of Justice told the justices on April 25 that the regulations were legal and justified by the dangers of youth tobacco use.

"The state's interest in preventing school-age children from smoking is truly compelling," said Barbara D. Underwood, the acting U.S. solicitor general.

William W. Porter, a Massachusetts assistant attorney general, said that if the court accepted the tobacco industry's arguments, then no state could ban cigarette ads "from Little League fields or ... near schools."

The showdown in Lorillard Tobacco Co. v. Reilly (Case No. 00-596) is the tobacco industry's second visit to the high court in as many years. Last year, it won a major victory when the court ruled 5-4 that the Food and Drug Administration lacked authority from Congress to begin regulating nicotine as a drug. That ruling brought a swift end to the agency's proposal for broad rules aimed at reducing youth smoking, which included a ban on outdoor tobacco advertising within 1,000 feet of a school or playground.

Rules on Hold

Massachusetts adopted its own tobacco regulations in early 1999, just a few months after the nation's five largest tobacco companies reached a "master settlement agreement" with 46 states in their liability litigation over tobacco-related health costs. The agreement, which Massachusetts officials signed, called for the cigarette companies to pay more than $200 billion over 25 years to the states. The companies also voluntarily accepted restrictions on outdoor advertising, including a ban on billboards and a ban on any outdoor advertising at retail stores larger than 14 square feet.

The Massachusetts rules, which are on hold pending the outcome of the case, prohibit outdoor tobacco advertising at stores within 1,000 feet of a school or park and would ban interior tobacco displays below five feet from the floor in those stores. They were upheld last year by the U.S. Court of Appeals for the 1st Circuit, in Boston.

The state argued in court papers that, despite the settlement's ban on outdoor cigarette advertising, its regulations would advance the battle against youth smoking because tobacco companies were shifting more of their advertising dollars to store ads and point-of-sale promotions.

Joining the state's side were the National School Boards Association and its state affiliate, the Massachusetts Association of School Committees, which said in a friend-of-the-court brief that children merit "special solitude" in balancing their protection against the First Amendment rights of the tobacco companies.

'Highly Addictive'

During a lively oral-argument session, the justices weighed whether the state's restrictions were pre-empted by the Federal Cigarette Labeling and Advertising Act. The 1969 statute says that "no requirement or prohibition based on smoking and health shall be imposed under state law with respect to advertising or promotion of any cigarettes" whose packages carry federally mandated warning labels.

Some justices did not appear convinced that the law was meant to preclude state regulation of outdoor tobacco advertising.

"When you read the federal statute, it does seem to be directed at what was on cigarette labels," Justice Sandra Day O'Connor told Mr. Sutton.

"We're dealing with a commodity like no other," said Justice Ruth Bader Ginsburg. "This is highly addictive and especially dangerous to children, who can get hooked at age 13 and not get off it for the rest of their lives."

But Justice Antonin Scalia said the 1969 statute seems to be "a fairly broad ban against state regulation" of tobacco advertising.

On the First Amendment issue, Justice Scalia made a comparison to regulation of pornography.

"We've been very insistent that you can't keep it away from adults," he said.

Mr. Porter replied that while parents can take steps to keep pornography from their children, "here parents have no opportunity to block tobacco advertising children see as they walk to school each day."

Justice Clarence Thomas, who rarely speaks during arguments, asked Ms. Underwood whether a state could prohibit "fast food joints," such as McDonald's, from advertising to children if the state believed its food was unhealthy.

In response, Ms. Underwood drew a distinction between cigarettes and fast food. The addictive nature of tobacco and the belief that many children pick up the smoking habit between the ages of 14 and 18, she said, were important justifications for the advertising restrictions.

The justices are expected to rule in the case by the end of the court's term in early summer.

Vol. 20, Issue 33, Page 27

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