533 U.S. 625 (2001)
In November 1998, Massachusetts joined over forty other states in reaching a master settlement agreement with major cigarette manufacturers that provided monetary payments and injunctive relief.1 Shortly after the agreement, the Attorney General announced plans to issue consumer protection regulations to close gaps in the settlement and prevent recruitment of underage customers.2
In January 1999, the Attorney General promulgated comprehensive regulations under Mass. Gen. Laws ch. 93A § 2 governing the advertising and sale of cigarettes, smokeless tobacco, and cigars, with an effective date of February 1, 2000.3 The regulations contained three principal restrictions.4
Outdoor advertising, including billboards and signs visible from outside retail establishments, was prohibited within a 1,000-foot radius of any public playground, playground area in a public park, elementary school, or secondary school.5 Point-of-sale advertising was barred if any portion appeared lower than five feet from the floor in retail establishments within the same radius, unless the establishment was adult-only.6 Self-service displays were forbidden, and all tobacco products had to be placed behind counters accessible only to outlet personnel, with limited exceptions for adult-only stores and small text-only signs.7
Before the regulations took effect, petitioners—including Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, R. J. Reynolds Tobacco Company, Philip Morris Incorporated, U. S. Smokeless Tobacco Company, several cigar manufacturers and retailers, and an advertising agency—filed suit in the United States District Court for the District of Massachusetts.8 The complaint alleged that the regulations violated the Commerce Clause, the Supremacy Clause, the First and Fourteenth Amendments, and were preempted by the Federal Cigarette Labeling and Advertising Act for cigarettes.9
The District Court granted summary judgment to the Attorney General in two rulings.10 On appeal, the United States Court of Appeals for the First Circuit affirmed in part and reversed in part.11 The Supreme Court granted certiorari in 2001 to address the preemption and First Amendment questions.12
Whether the Federal Cigarette Labeling and Advertising Act preempts Massachusetts regulations restricting the outdoor and point-of-sale advertising of cigarettes?13
The FCLAA preemption provision states that 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 conformity with the provisions of this chapter. 15 U.S.C. § 1334(b).14
Yes. The Massachusetts regulations are requirements with respect to the advertising or promotion of cigarettes.15 They prohibit specific kinds of cigarette advertising such as outdoor advertising within 1,000 feet of a school or playground and point-of-sale advertising below a certain height.16 The regulations are based on smoking and health.17
They were promulgated to reduce the number of children who use tobacco products by eliminating exposure to advertising.18 The Court of Appeals erred in concluding that the regulations were not based on smoking and health merely because they aimed to protect children from the persuasive effect of advertising rather than the health effects of smoking itself.19 The purpose of reducing demand for tobacco products by minors is inextricably linked to concerns about smoking and health.20
The FCLAA preempts the Attorney General's cigarette advertising regulations.21
Related opinions on this issue
Joined by Ginsburg And Breyer, Jj., As To Part I; Souter, J., As To Part I
Justice Stevens disagreed with the majority's preemption holding for cigarette advertising regulations.22 He argued that the FCLAA only preempts content-based regulations of cigarette advertising.23 Location restrictions such as the 1,000-foot rule are traditional exercises of state zoning power not preempted by the statute.24
In his view Congress did not manifest a clear purpose to displace state authority over the location of advertising when it amended the preemption provision in 1969.25 The provision remains at best ambiguous on that point, so Massachusetts and its sister States retain their traditional police powers.26
Whether Massachusetts regulations prohibiting outdoor advertising of smokeless tobacco and cigars within a 1,000-foot radius of schools or playgrounds violate the First Amendment?27
Under Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980), a restriction on commercial speech is valid only if it (1) serves a substantial governmental interest, (2) directly advances that interest, and (3) is no more extensive than necessary to serve that interest.28
Yes. The outdoor advertising regulations serve the substantial governmental interest of preventing the use of tobacco products by minors.29 Petitioners maintained that this prohibition would prevent advertising in 87% to 91% of Boston, Worcester, and Springfield, Massachusetts.30 However, the regulations are not narrowly tailored.
The 1,000-foot ban covers a substantial portion of the major metropolitan areas of Massachusetts. It would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers in some areas.31 The Attorney General did not carefully calculate the costs and benefits associated with the burden on speech.32 He did not consider the impact on commercial speech in major metropolitan areas or the availability of alternative avenues for adult communication.33
The breadth of the regulations, including the ban on oral communications and signs of any size, demonstrates a lack of tailoring to the problem of youth exposure.34
The outdoor advertising regulations for smokeless tobacco and cigars violate the First Amendment.35
Related opinions on this issue
Joined by Scalia, J.
Justice Kennedy joined the opinion of the Court but wrote separately to emphasize that the Attorney General's regulations are not supported by the kind of evidence necessary to sustain a restriction on commercial speech.36 He noted that the Attorney General has not shown that the regulations will in fact reduce the use of tobacco products by minors.37 Nor has the Attorney General shown that the regulations are narrowly tailored to serve that interest.38
In his view the obvious overbreadth of the outdoor advertising restrictions suffices to invalidate them under the fourth part of the Central Hudson test, so there is no need to consider whether the restrictions satisfy the third part of the test.39
Justice Thomas joined the opinion of the Court but wrote separately to express his view that the Central Hudson test should be abandoned.40 It has proven unworkable and inconsistent with the First Amendment.41 He would subject all of the advertising restrictions to strict scrutiny.42
He would hold that they violate the First Amendment because the government seeks to restrict truthful speech in order to suppress the ideas it conveys.43 In his view an asserted government interest in keeping people ignorant by suppressing expression is per se illegitimate and can no more justify regulation of commercial speech than it can justify regulation of noncommercial speech.44
Justice Souter joined Parts I, II-C, II-D, III-A, III-B-1, III-C, and III-D of the Court's opinion.45 He joined Part I of Justice Stevens' opinion concurring in part, concurring in the judgment in part, and dissenting in part.46 He respectfully dissented from Part III-B-2 of the opinion of the Court.47
Like Justice Stevens he would remand for trial on the constitutionality of the 1,000-foot limit because the record does not contain sufficient information to determine whether the regulation unduly restricts adult speech.48 The Court lacks data on the percentage of urban areas affected, the traffic in permitted areas, and alternative channels of communication such as print advertisements.49
Whether Massachusetts regulations restricting point-of-sale advertising of smokeless tobacco and cigars to a height of five feet or higher violate the First Amendment?50
Under Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980), a restriction on commercial speech is valid only if it (1) serves a substantial governmental interest, (2) directly advances that interest, and (3) is no more extensive than necessary to serve that interest.
Yes. The point-of-sale height restriction does not directly advance the governmental interest in preventing minors from using tobacco products.51 Not all children are less than five feet tall.52 Those who are have the ability to look up and take in their surroundings.53
The regulation therefore provides only ineffective or remote support for the government's purpose.54 The restriction also fails the fourth step of Central Hudson because it is not narrowly tailored.55 There is no de minimis exception for a speech restriction that lacks sufficient tailoring or justification.56 The Court of Appeals erred in upholding the provision on the ground that the burden on speech is very limited.57
The point-of-sale advertising regulations for smokeless tobacco and cigars violate the First Amendment.58
Whether Massachusetts regulations prohibiting self-service displays of tobacco products and requiring them to be placed behind counters violate the First Amendment?59
Regulations that govern conduct rather than expression are subject to the test of United States v. O'Brien, 391 U.S. 367 (1968), and are valid if they are narrowly tailored to serve a substantial governmental interest and leave open ample alternative channels for communication.60
No. The sales practices regulations regulate conduct that may have a communicative component.61 Massachusetts seeks to regulate the placement of tobacco products for reasons unrelated to the communication of ideas.62 The State has demonstrated a substantial interest in preventing access to tobacco products by minors.6364 It has adopted an appropriately narrow means of advancing that interest by requiring direct contact with a salesperson.65
The regulations leave open ample channels of communication.66 Vendors may place empty tobacco packaging on open display.67 They may display actual tobacco products so long as that display is only accessible to sales personnel.68 Adult customers retain the ability to examine products through a salesperson.69
The sales practices regulations do not violate the First Amendment.70
Related opinions on this issue
Joined by Ginsburg And Breyer, Jj.; Souter, J., As To Part I
Justice Stevens agreed with the Court that the sales practices regulations do not violate the First Amendment.71 He concluded that these provisions regulate conduct rather than speech.72 The State has demonstrated a substantial interest in preventing access to tobacco products by minors.
It adopted an appropriately narrow means of advancing that interest by requiring direct contact with a salesperson before handling products.73 He would have affirmed the judgment of the Court of Appeals in its entirety with respect to the sales practices regulations because the restrictions are little more than an adjunct to other valid sales practice rules and have only the slightest impact on adult access.74
Justice Souter joined the majority in upholding the sales practices regulations.75 He agreed that they regulate conduct rather than expression and that the State has demonstrated a substantial interest in preventing access to tobacco products by minors.76 He joined the relevant parts of the Court's opinion that upheld these provisions under the O'Brien test for conduct regulations that are narrowly tailored to serve a substantial governmental interest and leave open ample alternative channels for communication.