Justices To Hear Tobacco Ad Case



WASHINGTON — A fight over tough new Massachusetts advertising restrictions moves to the Supreme Court Wednesday, where tobacco companies hope to upend rules aimed at keeping cigarette ads out of view of children.

Philip Morris Cos. (MO), R.J. Reynolds Tobacco Holdings Inc. (RJR) and other tobacco concerns claim the curbs prohibit virtually all outdoor tobacco ads in the state’s largest cities, trampling federal law and First Amendment free-speech rights.

On the other side of the debate are public-health groups and scores of local and state governments, many of which have enacted similar rules. They say they’re free to restrict ads that promote illegal activities — in this case, underage smoking.

The justices will take up the debate during an hour of arguments Wednesday, and will likely issue a decision sometime before the end of June.

The 1999 Massachusetts regulations forbid outdoor tobacco ads within 1,000 feet of playgrounds, parks and schools. Retailers must place indoor ads at least five feet above the floor and cigarette, cigar and smokeless tobacco displays must be out of the reach of customers.

Advertisers, retailers, newspaper publishers and other industry groups are watching the case with interest. They say it’s time for the high court to bless commercial speech with the same constitutional protections given to political and noncommercial discourse.

“Full First Amendment protection for commercial speech vindicates perhaps the most fundamental tenant of First Amendment jurisprudence: the favored remedy of more speech,” lawyers for American Association of Advertising and the Direct Marketing Association said in a brief.

But the justices may not reach the free-speech issue. Instead, they could decide the restrictions are trumped by the federal Cigarette Labeling and Advertising Act, which says states can’t regulate the “advertising or promotion of any cigarettes” that are properly labeled.

The tobacco companies challenged the rules in federal court, arguing that the prohibition “includes virtually the entire populated area of Massachusetts.” The First U.S. Circuit Court of Appeals in Boston ultimately blessed the curbs.

The First Circuit concluded that the Massachusetts regulations were “location restrictions” not aimed at the kind of “confusing advertising standards” Congress was worried about when it passed the cigarette-labeling statute.

Moreover, the appeals court found no First Amendment violation because the state had a “substantial” interest in reducing tobacco use by youngsters and the restrictions were “narrowly tailored” to “directly advance” that interest. Those guidelines were laid out by the Supreme Court in a 1980 case known as Central Hudson Gas & Electric, a ruling cigarette makers said should be reassessed.

To local governments, such restrictions are a way to cut the demand and use of tobacco by minors.

“This demand is fueled in significant part by pervasive advertising that parents cannot screen and minors cannot avoid,” a group of 30 California cities told the justices in a brief. “Neither federal law nor the First Amendment prevents cities from addressing this problem.”

Public-health groups including the American Medical Association and the American Heart Association also weighed in, urging the high court to uphold the regulations.

Among those filing briefs backing the tobacco appeal was a group including the Newspaper Association of America, the American Civil Liberties Union and Dow Jones & Co. (DJ), the publisher of this newswire.

Cigarette makers in 1998 agreed to stop advertising on billboards and on signs in arenas, stadiums and shopping malls under a $200 billion settlement with Massachusetts and 45 other states. They also agreed to a ban on any advertising outside retail stores that was larger than 14 square feet.

Other tobacco companies involved include Loews Corp.’s (LTR) Lorillard Tobacco Co., Brown & Williamson Tobacco Corp., a unit of British American Tobacco PLC (BTI), UST Inc.’s (UST) United States Tobacco Co. and Swedish Match AB (SWMAY).

Copyright (c) 2001 Dow Jones & Company, Inc.