Congress has enacted a comprehensive scheme to address cigarette smoking and health in advertising and pre-empted state regulation of cigarette advertising that attempts to address that same concern, even with respect to youth.
After the Attorney General of Massachusetts (Attorney General) promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars, petitioners, a group of tobacco manufacturers and retailers, filed suit asserting, among other things, the Supremacy Clause claim that the cigarette advertising regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA), which prescribes mandatory health warnings for cigarette packaging and advertising, 15 U.S.C. § 1333, and pre-empts similar state regulations, § 1334(b) and a claim that the regulations violate the First and Fourteenth Amendments to the Federal Constitution. The district court determined the regulations were valid. The United States Court of Appeals for the First Circuit affirmed in part and reversed in part. Petition for writ of certiorari was granted.
Is the comprehensive scheme to address smoking and health enacted by Congress valid?
First, the court held that respondent attorney general's outdoor and point-of-sale advertising regulations targeting cigarettes were pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA), 15 U.S.C.S. § 1331 et seq. The FCLAA's pre-emption provision did not permit a distinction between concern about minors and cigarette advertising and the more general concern about smoking and health in cigarette advertising. Further, a distinction between state regulation of the location as opposed to content of cigarette advertising had no foundation in the text of the pre-emption provision. As to the First Amendment issues, the court found that the attorney general failed to show that the outdoor advertising regulations for smokeless tobacco and cigars were not more extensive than necessary to advance the state's interest in preventing underage tobacco use. Also, the point-of-sale advertising regulations failed the fourth step of the Central Hudson analysis. However, the regulation barring self-service displays for tobacco withstood First Amendment scrutiny, as those regulations were narrowly tailored to prevent access to tobacco products by minors.