Justices Say States, Cities Can't Limit Tobacco Ads

TIMES STAFF WRITER

The Supreme Court gave the tobacco industry a major victory Thursday, ruling that states and localities may not ban the outdoor advertising of cigarettes and other tobacco products at retail stores or near schools and playgrounds.

The 5-4 ruling knocks down Massachusetts' restrictions, and apparently invalidates local ordinances in New York, Chicago, Los Angeles and at least a dozen other California cities as well.

Three years ago, as part of its settlement with state attorneys general, the tobacco industry agreed to take down its billboard ads for cigarettes and ban caps and T-shirts with cigarette logos. Those voluntary restrictions by the industry remain in effect.

However, Thursday's ruling strips state and local governments of their power to do anything further to restrict the advertising of cigarettes and other tobacco products.

The justices handed down their final written decisions of the term Thursday. They included two other 5-4 rulings, one that strengthened property rights and another that freed some deportable immigrants from being held indefinitely by the government. After issuing a final round of orders today, the high court will go on recess for the summer.

The reverberations of the court's cigarette ruling will likely be felt in cities around the nation, and its effect will be seen near retail stores.

In 1999, the year after the industrywide settlement, cigarette makers spent a record $8.24 billion on advertising and promotions. All of this money was directed away from billboards toward retail stores and more targeted promotions.

But the industry's lawyers faced state and local restrictions on tobacco ads, most of which were adopted in the last few years.

Typically, these ordinances prohibited ads for cigarettes, cigars and smokeless tobacco that would be seen by children and teenagers. They restricted small signs that were not affected by the settlement agreement.

In 1998, the Los Angeles City Council adopted a ban on tobacco ads "in publicly visible locations within 1,000 feet of any residential zone, school, youth center or public park." It also prohibited retail signs that are "visible outside the [retail] building."

Last year, the industry's lawyers went to the Supreme Court to challenge the state and local measures that went beyond the settlement-mandated bans on billboard ads. The Massachusetts regulations at issue prohibited small tobacco ads in and around retail outlets. They also forbade tobacco ads in sports stadiums and retail stores if they could be seen outside in an area that was within 1,000 feet of a playground or school.

In Thursday's decision, the Supreme Court said that these broad bans on advertising violate both the 1st Amendment's guarantee of freedom of speech and the federal cigarette labeling act of the 1960s that first warned Americans that smoking "may be hazardous to your health."

When it set out the exact words for the warning labels, Congress also closed the door to separate regulations by the states, the court said. The labeling law "precludes state or localities from imposing any requirement or prohibition based on smoking and health with respect to advertising and promotion of cigarettes," said Justice Sandra Day O'Connor.

Los Angeles lawyer Mark Haddad called the high court's ruling "very disappointing."

"It means the city of Los Angeles cannot enforce this ordinance." Haddad filed a friend-of-the-court brief in the Massachusetts case on behalf of 30 municipalities in California. They included San Diego, San Francisco and Sacramento.

The free-speech aspect of the ruling is particularly significant, however, because it goes beyond cigarettes. It potentially puts into jeopardy ordinances in Los Angeles and other big cities that restrict billboard ads for beer and liquor.

In recent years, the advertisers have been winning regularly at the Supreme Court. The justices have struck down advertising restrictions on casino gambling, beer prices and now cigarettes.

There is no "vice exception" to the 1st Amendment, the court has said. Because cigarettes, like beer and gambling, are legal for adults, the government may not broadly prohibit the advertising of such products, it has said.

"The message that should be heard is that attempts by the government to broadly restrict advertising of lawful products is going to fail," said Daniel E. Troy, a Washington lawyer who represents the American Advertising Federation. "It's politically popular to attack tobacco, but the court has made it clear it will not sustain these laws."

Justice Clarence Thomas, the court's foremost proponent of protecting advertising as free speech, suggested that attacks on fast food would be next if the court upheld the bans on cigarettes ads. Fatty foods are unhealthful, he said, and McDonald's and other fast-food chains direct their advertising appeals to children.

But "harmful products, [like] harmful ideas, are entitled to the protection of the 1st Amendment," Thomas wrote in a concurring opinion.

Justices Antonin Scalia and Anthony M. Kennedy agreed with Thomas that advertising restrictions are always unconstitutional.

O'Connor and Chief Justice William H. Rehnquist did not go quite as far, but they agreed that the Massachusetts ad restrictions were unconstitutional because they were too broad. In metropolitan areas such as Boston, the ban's 1,000-foot zone around schools and parks makes for "nearly a complete ban" on outdoor tobacco ads, O'Connor said in Lorillard Tobacco Co. vs. Reilly, 00-596.

Free-speech liberals hailed the court's decision four years ago that struck down a federal law restricting sexually explicit messages on the Internet.

Pointedly, O'Connor cited that decision as resting on the same principle as the ban on tobacco ads: "Protecting children from harmful materials . . . does not justify an unnecessarily broad suppression of speech addressed to adults," she wrote.

For anti-cigarette activists, Thursday's ruling marked the second stinging defeat in two years from the Supreme Court.

Last year, the same five justices combined to strike down the Clinton administration's plans to regulate cigarettes and tobacco as dangerous drugs.

That ruling stripped federal regulators of their authority to limit cigarette ads and promotions. Thursday's ruling takes away the authority of local and state officials to regulate cigarette promotions.

"This decision makes clear that if our nation's kids are to be protected, Congress will have to act," said Matthew L. Myers, president of the National Center for Tobacco-Free Kids. Lawmakers could revise the Cigarette Labeling Act to restore the power of state and local officials to restrict ads, he said.

Richard Daynard, a law professor at Northeastern University in Boston and a leader of anti-tobacco litigation, suggested that states turn to other measures, such as raising the age for buying cigarettes from 18 to 21.

"The idea that the marketers of a deadly, addictive product who are doing their damnedest to hook teenagers have a constitutional right to do this is really shocking," Daynard said.

The Supreme Court did hand state and local regulators one small victory.

The justices upheld a provision that required retailers to put their tobacco products behind the counter. This means that teenagers could not pick up cigarettes, at least without the approval of a salesperson. This regulation does not infringe free speech, O'Connor said.

In dissent, Justice John Paul Stevens faulted his colleagues for misreading the Cigarette Labeling Act. It concerns only the content of the warning labels and did not limit the states' regulatory authority, he said. He also disagreed with the majority's 1st Amendment ruling. His dissent was joined by Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

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