Draconian limitations on the advertising and point-of-sale promotion of tobacco products in Massachusetts were yesterday overturned by the US Supreme Court, which ruled that federal law pre-empted the state from acting against cigarettes.

The restrictions – issued by attorney general Thomas Reilly in 1999 – prohibited tobacco advertising (including signs indicating that cigarettes were on sale) within 1000 feet of schools, parks or playgrounds, with point-of-sale ads required to be at least five feet from the ground. They were described by the court as “unduly broad” and “onerous”.

“From a policy perspective, it is understandable for the states to attempt to prevent minors from using tobacco products,” commented Justice Sandra Day O’Connor. “Federal law, however, places limits on policy choices available to the states.” The decision could affect anti-tobacco regulations passed by other local governments, such as New York City and Los Angeles.

The court – which accepted the case in January [WAMN: 09-Jan-01] – also ruled that regulations governing the advertising of cigars and smokeless tobacco were tantamount to a ban on ads for a legal product to legal users. However, the requirement that tobacco be kept behind counters or out of reach of customers was upheld.

In addition, there were a number of First Amendment issues, some of which split the court. “These regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers,” continued O’Connor. “The breadth and scope of the regulations and the process by which the attorney general adopted the regulations do not demonstrate a careful calculation of the speech interests involved.”

However, it was not all good news for the tobacco advertising industry – the court upheld Reilly’s claim, based on evidence from the Food and Drug Administration, that advertising could cause children to smoke or increase their level of smoking.

In a decision with potentially far-reaching implications, O’Connor stated: “We disagree with petitioner's claims that there is no evidence that preventing targeted campaigns and limiting youth exposure to advertising will decrease underage use of smokeless tobacco and cigars.”

News sources: Advertising Age - Daily Deadline; Adweek.com