Court strikes down state tobacco ad restrictions |

Court strikes down state tobacco ad restrictions

WASHINGTON (AP) – State efforts to ban tobacco advertising near playgrounds and schools violate both federal law and free-speech rights, the Supreme Court ruled Thursday, concluding its 2000-2001 term with a victory for tobacco companies.

On the first and most practical point, the court ruled that states may not add their own restrictions to the federal law that bans cigarette ads on TV and requires warning labels on packages.

That finding, by a vote of 5-4, would have been enough to defeat a proposed ban on tobacco ads near playgrounds and schools in Massachusetts.

But the court went on to rule that the state’s plan would violate the First Amendment guarantee of free speech, because in the course of limiting children’s exposure to tobacco ads, the state would prevent adults from seeing information about a product they have the legal right to buy.

The court focused first on the scope and wording of the 1969 national law passed by Congress to limit the way cigarettes are marketed and to increase public awareness of the dangers of tobacco.

The cigarette companies claimed that the national ad law trumped state efforts to pile on their own restrictions, and the Supreme Court agreed.

”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,” Justice Sandra Day O’Connor wrote for the court.

”Federal law, however, places limits on policy choices available to the states.”

That reasoning apparently also invalidates similar local ad bans in New York City, Chicago and Baltimore, said Richard Daynard, president of the Tobacco Control Resource Center in Boston.

States would still be free to try other means to limit children’s smoking, such as raising the legal age to buy tobacco, and increasing the price of cigarettes, Daynard said.

The Massachusetts regulations would have gone farther than the 1969 law, and farther than the 1998 settlement between tobacco companies and states that stopped billboard advertising and signs in places such as sports stadiums.

The plan has been on hold while the tobacco companies fought it in court.

Massachusetts Attorney General Tom Reilly said he will ask Congress to change the 1969 federal law.

”It’s about time Congress stepped up and took on the tobacco companies,” Reilly said.

Other tobacco opponents noted that the same court majority threw out a Clinton administration anti-smoking initiative last year, ruling that the government does not have the authority to regulate tobacco as an addictive drug.

The court upheld one part of the Massachusetts plan. The state may ban self-service displays of cigarette cartons or other tobacco products in stores, and may require that the products be kept behind the counter or otherwise out of children’s easy reach, the court ruled.

O’Connor also wrote that states and cities retain the right to apply various zoning restrictions to cigarettes, so long as tobacco is ”on equal terms with other products.”

Tobacco firms said Thursday the ruling was a relief but will not have much effect on the way they market their products.

”We’ve already done a lot of things to change the way cigarettes are marketed or advertised,” said William S. Ohlemeyer, vice president and general counsel of Philip Morris. ”This decision (does not mean) an effort to advertise more broadly or aggressively than we do now.”

Although large portions of Thursday’s lengthy opinion were unanimous, the court divided 5-4 along ideological lines on the two most crucial points. The conservative-led voting bloc prevailed in both instances.

The case afforded the court an opportunity to grant ”commercial speech” such as advertising the same free-speech rights as political or artistic expression.

But the court’s overlapping statements on the First Amendment portion of the tobacco case are too tangled to be the broad new statement on commercial speech that Justice Clarence Thomas and conservatives outside the court had hoped.

”I have observed previously that there is no philosophical or historical basis for asserting that commercial speech is of lower value that noncommercial speech,” Thomas wrote in a separate concurring opinion.

Justice John Paul Stevens, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and David Souter would have ordered a trial in lower court to settle the constitutionality of the proposed outdoor advertising ban.

The four dissenters would have upheld the constitutionality of ad restrictions inside convenience stores, gas stations and other places where people buy tobacco.

The cases are Lorillard Tobacco v. Reilly, 00-596, and Altadis U.S.A. v. Reilly, 00-597.

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