Court Voids Local Bans on Outdoor Tobacco Ads

State and local governments cannot prohibit outdoor tobacco advertising, a federal appeals court in San Francisco ruled Friday.

The 3-0 decision by the U.S. 9th Circuit Court of Appeals said such bans are illegal because they are preempted by a 1965 federal law regulating cigarette advertising and labeling.

That law forced manufacturers to put health warning labels on cigarette packages but did not ban outdoor advertising. The judges said Friday that because of the federal law, state and local authorities in the nine Western states covered by the court cannot enact their own prohibitions.

The ruling has no direct impact on the massive 1998 national tobacco settlement, in which the nation’s major cigarette companies agreed to halt most outdoor advertising, including billboards. It does, however, affect local laws that include a city ordinance in Los Angeles designed to prevent retailers from posting billboards or other outdoor advertising.

Hypothetically, as a result of the ruling stores could post outdoor cigarette advertising anywhere from their front window to a billboard on the Sunset Strip. The ruling, however, is likely to be appealed to either a larger panel of 9th Circuit judges or directly to the U.S. Supreme Court.

Friday’s decision resulted from a challenge by the owners of a small convenience store to a Tacoma, Wash., ordinance that barred any outdoor tobacco advertising in an attempt to reduce smoking by minors.

The ruling is at odds with judgments by three federal appeals courts that have upheld similar bans imposed by Baltimore, New York and Chicago, legal scholars said.

That conflict among the federal circuits is likely to eventually prompt the U.S. Supreme Court to review the issue, according to USC constitutional law professor Erwin Chemerinsky and New York attorney Floyd Abrams, who represented the Tacoma shopkeepers challenging the law.

Since Friday’s ruling deals only with the interplay of federal and local laws on tobacco, the decision has no impact on other advertising restrictions, such as a ban on liquor billboards, Chemerinsky said.

Matt Myers, general counsel of the National Center for Tobacco Free Kids, said the decision “demonstrates the problems with the 1998 tobacco settlement’s failure to eliminate all outdoor advertising.”

Anti-tobacco advocates argued unsuccessfully that the settlement should include a provision mandating that cigarette manufacturers not sell their products to retailers who advertise the items outdoors. “I would be stunned if this case wasn’t underwritten by the tobacco manufacturers or one of their allies,” Myers said.

Abrams, one of the nation’s leading 1st Amendment lawyers, declined to comment on who paid his fees but said “nothing in this decision makes any less binding any promise that the tobacco companies have made about outdoor advertising.”

Dr. Federico Cruz-Uribe, health officer for the Tacoma-Pierce County Health Department, said: “We are very disappointed” that the 9th Circuit “has departed from the wise path its sister circuits have blazed. . . . The 9th Circuit has ignored precedent and disregarded the interests of parents and the community to lessen the appeal and access of addictive tobacco to children.”

He said that even though the national settlement “will protect our community from tobacco billboards, [it] does not address the storefront advertising that invades our neighborhoods and attacks our children.”

Tacoma Deputy City Atty. Clifford D. Allo said the health agency would take up the issue of whether to appeal at a meeting next week.

Scott Williams, a spokesman for the tobacco industry, said the ruling showed that the industry had agreed in negotiations to give up its right to advertise outdoors even though it had no legal obligation to do so. He said the industry would continue to “help on the youth smoking front” by urging retailers to forgo sales to minors.

Tacoma adopted an ordinance banning all outdoor tobacco advertising in December 1996. In March 1997, three convenience store owners--who between them had six of the 700 licenses to sell tobacco in the county--sued in federal district court challenging the regulation. The plaintiffs alleged that they had lost profits as a result of having to remove the signs outside their shops.

All three plaintiffs were represented by Byrnes and Keller, a Seattle law firm that defended R.J. Reynolds Tobacco Corp. in a massive suit filed against the nation’s major cigarette makers by the state of Washington. (That case was settled last year as part of a $206-billion, 46-state settlement).

A federal district judge in Seattle issued two rulings in 1997 rejecting the claims of the shopkeepers that the Tacoma ordinance should be struck down. After the first ruling, pretrial discovery began and two of the plaintiffs dropped their suits after declining to respond to questions by Tacoma city attorneys about the extent of their lost profits.

The other plaintiffs, James and Sun Cha Lindsey, continued to pursue the suit, even though their Tacoma convenience store burned in September 1997 and has not reopened, according to a deposition in the case.

Friday’s ruling overturned the earlier decision by U.S. District Judge Robert J. Bryan, who rejected the Lindseys’ claim that the Tacoma law was preempted by the landmark 1965 Federal Cigarette Labeling and Advertising Act. Bryan ruled that the Tacoma ordinance was not preempted because it only regulated the location and not the content of cigarette advertisements.

In the first major ruling on this issue, a federal appeals court in Richmond upheld a Baltimore ordinance that barred “publicly visible” cigarette and alcoholic beverage ads except on property adjacent to an interstate highway, in heavy industrial zones or at sports stadiums.

The U.S. 4th Circuit Court of Appeals ruled in 1996 that government entities could constitutionally impose reasonable restrictions on cigarette and alcoholic beverage ads in order to protect children from being exposed to this type of advertising.

Earlier this year, federal appeals courts in New York and Chicago, which said local laws barring outdoor tobacco advertising were not preempted by the 1965 federal act, also drew a distinction between laws that governed the content of advertising and those regulating its location.

The 9th Circuit flatly rejected that reasoning, calling the distinction an artificial one unsupported by either the text or the purpose of the federal statute.

“The plain language of the [act] preempts any state law that imposes a requirement or prohibition based on smoking and health with respect to cigarette advertising,” wrote Judge Melvin Brunetti, a Ronald Reagan appointee. Judge William Canby, a Jimmy Carter appointee, and Judge Diarmuid F. O’Scannlain, a George Bush appointee, joined in the decision.