Untitled Texas Attorney General Opinion
GA-1020
| Tex. Att'y Gen. | Jul 2, 2013Background
- Advertising Fee Statute TEX. Health & Safety Code §161.123(a) imposes a 10% advertising fee on outdoor cigarette and tobacco advertising collected by the comptroller.
- Question presented: (1) whether the Advertising Fee Statute is preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA) §1334(b) as applied to cigarettes; (2) whether if preempted, the non-preempted portions are severable; (3) whether the statute violates free‑speech guarantees under the U.S. and Texas constitutions.
- Texas Supreme Court declines to resolve preemption on the record and notes the need for factual development; the court cannot conclusively determine preemption.
- If preemption applies to cigarettes, the court suggests the remaining tobacco-provision portions may remain enforceable, depending on severability.
- Constitutional challenge to the statute would require a case-by-case Central Hudson analysis and cannot be decided in this advisory context.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preemption of the Advertising Fee Statute as to cigarettes | Advertising Fee Statute preempted by FCLAA §1334(b) | Preemption undecided; factual questions remain | Not conclusively determined; depends on forthcoming record |
| Severability of the statute if cigarettes are preempted | Remainder tobacco provisions remain enforceable | Severability depends on legislative intent | Likely severable; remainder may be enforceable |
| Constitutional challenge under First and Texas speech provisions | Statute violates free speech | Regulation may be constitutional subject to Central Hudson test | Not resolved; requires case-specific facts and judicial analysis |
Key Cases Cited
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (preemption analysis of state tobacco advertising regulations)
- Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980) (test for commercial speech regulation constitutionality)
- Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011) (case-specific First Amendment scrutiny of regulations)
- Great Dane Trailers, Inc. v. Estate of Wells, 52 S.W.3d 737 (Tex. 2001) (presumption against preemption; need for factual development)
- Virginia v. Hicks, 539 U.S. 113 (2003) (severability standards in constitutional questions)
- Rose v. Doctors Hosp., 801 S.W.2d 841 (Tex. 1990) (severability and legislative intent considerations)
- Gitlow v. New York, 268 U.S. 652 (1925) (early incorporation of free speech protections)