Transcript The Regulation of Tobacco Advertising After Lorillard v

The Regulation of
Tobacco Advertising After
Lorillard v. Reilly
Michael F. Strande, J.D.
Legal Resource Center for Tobacco
Regulation, Litigation & Advocacy
University of Maryland School of Law
Aren’t Tobacco Ads Already Regulated?
The Master Settlement Agreement (MSA)
aimed to prevent youth smoking by limiting
tobacco sponsorships and promotions.
MSA contains 2 retail advertising
provisions:
1. Size limit on exterior signs (max 14 sqft)
2. Ban on the use of cartoons
MSA does not bind NPMs, cigars, or
smokeless tobacco
Why Regulate Tobacco Advertising?
POP ads and displays boost tobacco sales
by 12 % - 28 %
Children found 3 times more sensitive to
tobacco ads than adults
Entice children to begin smoking
POP often found in candy aisle and at eye
level of young children
Lorillard v. Reilly
Massachusetts passes tobacco sales and
advertising restrictions:
– Tobacco ads which can be seen from outside
any store within a 1000 ft radius of any public
playground, elementary or secondary school
– POP lower than 5 ft from the floor of any nonage-restricted store within the 1000 ft radius
– Prohibition on promotional give aways of cigars
– Ban on tobacco self service displays
Lorillard v. Reilly
Supremes strike down law on two grounds:
1. Find preemption with regard to Federal
Cigarette Labeling and Advertising Act (FCLAA)
2. Find bill an unconstitutional restriction on First
Amendment right to free speech
Uphold bill’s self-service display ban
What Is Preemption?
Higher levels of
government can
displace lower levels
from regulating on the
same topic
Higher level
regulations take
precedence and fully
regulate the field
Preemption by the FCLAA
Applies only to cigarette advertising
– State regulations on cigars and smokeless
tobacco fair game
Express preemption clause:
– “No requirement or prohibition based on
smoking and health shall be imposed under
state law with respect to the advertising or
promotion of any cigarettes the packages of
which are labeled in uniformity with provision of
this Act.” 15 U.S.C. 1334(b).
Lorillard v. Reilly
1. Imposed a “requirement” with respect to
the advertising of cigarettes
2. Requirement was based on “smoking and
health” because it sought to address the
incidence of underage smoking
-
“the concern about youth exposure to cigarette
advertising is intertwined with the concern
about cigarette smoking and health.”
3. Dealt with advertising of cigarettes
Conflict with First Amendment
Commercial speech not afforded unlimited
First Amendment protections
– Gov’t retains right to regulate time, place and
manner without regard to content
– Gov’t retains right to restrict speech which is
deceptive or proposes an illegal transaction
Conflict with First Amendment
Regulation must meet Central Hudson test:
1. concerns lawful activity and not misleading
2. there is a substantial gov’t interest
3. regulation directly advances gov’t interest
4. not more excessive than necessary to
serve that interest
Lorillard v. Reilly
Advertising regs with respect to cigars and
smokeless tobacco fail fourth prong of test
Substantial breadth of regs determined to be
overly restrictive
– Eliminated advertising in approximately 89 % of
Boston, Worcester and Springfield.
Concern about complete ban on truthful
information about a legal product for adults in
order to “protect children”
Does Lorillard Leave Room for Regulation?
Zoning Ordinances
– Court specifically recognizes ability to regulate
size and location of tobacco ads through zoning
– Content neutral
(restrictions apply to all ads evenly - not just tobacco)
Aesthetics
Safety
– Ironic : Court specifically notes ability to regulate
based on aesthetics but not on health concerns,
despite finding tobacco to be a significant threat.
Regulate for Aesthetics and Public Safety
Regulate for Aesthetics and Traffic Safety
Does Lorillard Leave Room for Regulation?
Restriction on False or Misleading Ads
– Based on consumer protection – not smoking
and health
– Not afforded First Amendment protection
Reduced Risk Cigarettes?
– Eclipse, etc.
– “inherently misleading” ads intended to overreach
or confuse?
– Claims such as “reduced carcinogens” and “less
of the toxins” imply much but convey little actual
information about health risks; what proof?
* Eclipse is not
perfect. For
instance, we do not
claim that Eclipse
presents smokers
with less risk of
cardiovascular
disease or
complications with
pregnancy. As
everyone knows, all
cigarettes present
some health risk,
including Eclipse.
Does Lorillard Leave Room for Regulation?
Cigar and Smokeless Advertising
– Regulations on a smaller scale than Lorillard are
likely to meet Central Hudson test
Court noted these regulations were close to the line
Something less than a 90% prohibition of
geographical area (no magic number)
Leaving open industrial, commercially zoned, or other
high traffic areas likely to leave enough alternate
avenues
Does Lorillard Leave Room for Regulation?
Self Service Display Bans
– Specifically upheld
Court found this is not a promotion or advertisement
but a sales practice. Thus no preemption.
Court found this was not a violation of the First
Amendment because it was narrowly tailored and
ample display avenues remained open
– Requires tobacco products be inaccessible to the
consumer without employee assistance.
– Gov’t has a substantial interest in keeping age
restricted products out of children’s hands
Self Service Displays
Does Lorillard Leave Room for Regulation?
Eliminate promotional give aways of all
tobacco products?
– Not decided by Court
– Split in lower courts on whether this is preempted
by FCLAA
Issue : is this a regulation on promotion or advertising
(preempted) or on distribution (traditional police power)
– Passed in 2 Maryland jurisdictions without
challenge
Contact Information
Michael F. Strande, J.D.
Legal Resource Center for Tobacco
Regulation, Litigation & Advocacy
500 West Baltimore Street
Baltimore, Maryland 21201
410-706-1129 (phone)
410-706-1128 (fax)
[email protected]