The Regulation of Tobacco Advertising After Lorillard v. Reilly

1. 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

2. 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: • Size limit on exterior signs (max 14 sqft) • Ban on the use of cartoons • MSA does not bind NPMs, cigars, or smokeless tobacco

3. 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

4. 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 non-age-restricted store within the 1000 ft radius • Prohibition on promotional give aways of cigars • Ban on tobacco self service displays

5. Lorillard v. Reilly • Supremes strike down law on two grounds: • Find preemption with regard to Federal Cigarette Labeling and Advertising Act (FCLAA) • Find bill an unconstitutional restriction on First Amendment right to free speech • Uphold bill’s self-service display ban

6. 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

7. 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).

8. Lorillard v. Reilly • Imposed a “requirement” with respect to the advertising of cigarettes • 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.” • Dealt with advertising of cigarettes

9. 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

10. 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

11. 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”

12. 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.

13. Regulate for Aesthetics and Public Safety

14. Regulate for Aesthetics and Traffic Safety

15. 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?

16. * 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.

17. 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

18. 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

19. Self Service Displays

20. 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

21. 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) mstrande@law.umaryland.edu