*1 LORILLARD TOBACCO CO. et al. REILLY, ATTOR OF MASSACHUSETTS,
NEY GENERAL et al. No. 00-596. Argued April 200 1 DecidedJune 2001* 00-597, Inc., * Togetherwith No. Altadis U.S. A. as Successor to Con Inc., Cigar Corp. Havatampa, Reilly, Attorney solidated et al. v. at, Massachusetts, General et also on certiorari to the same court. *5 II-C, I, and Court, Parts O’Connor, J., opinion delivered of which III-C, III-A, and III-D unanimous; Parts of which were II-D Souter, Kennedy, and Scaua, Rehnquist, J., and C. by joined were Rehnquist, C. J., and by joined Thomas, Part III-B-1 JJ.; of which was II-B, II-A, Breyer, JJ.; Parts Ginsburg, and Souter, Stevens, and Scaua, Rehnquist, J., and C. joined III-B-2, IV of which were and in concurring Kennedy, J., opinion filed an Thomas, Kennedy, and JJ. Scalia, post, J., joined, in which judgment, in the concurring and part in concurring in and concurring part Thomas, J., opinion filed an 571. p. in concurring part an Souter, opinion filed J., 572. p. post, the judgment, concur- Stevens, opinion filed an J., post, in 590. dissenting p. part, and in dissenting part, in part, judgment in the concurring ring part, Ginsburg Souter, J., in which Breyer, JJ., joined, in which I, p. to Part 590. post, as joined
Jeffrey for petitioners S. Sutton cause argued Collins, R Daniel were him the briefs on 00-596. With No. Getter, Rowley, S. Jr., Kenneth Doyen, A. R. Fred Michael Strauch, L. Zielinski, John M. Frey, L. Richard Andrew A. Bar- Connarton, Jr., Patricia Katsas, B. Gregory John G. Kearney V. a brief James filed aid, H. Remes. and David Kearney Mr. With in No. 00-597. for petitioners Peter P. Bress. and Richard Christopher Harris brief were Eric Sarner for S. filed a brief petitioner J. McKenna in both cases. Tobacco Company U. S. Smokeless Porter, W. General Attorney William Assistant re- the cause Massachusetts, argued Commonwealth were brief him on the cases. With both spondents Paulson, General, and Susan Reilly, F. Thomas Attorney General. Assistant Attorney
Acting Underwood the cause Solicitor General argued curiae amicus affirmance. urging States United as for the *6 With her on the brief Acting were Assistant Attorney Gen eral Deputy Schiffer, Solicitor General Kneedler, Irving L. * Gomstein, and Douglas N. Letter
* Briefs of amici curiae urging reversal were filed for the American Advertising Federation et al. by Daniel E. Troy and Robin S. Conrad; the American Association of Advertising Agencies et by al. Penelope S. Farthing; for the Association of National Advertisers, Inc., by Steven G. Brody, J. Walsh, John and Gilbert Weil; H. for Infinity Outdoor, Inc., et al. by Floyd Abrams and Joel Kwrtzberg; for the National Association of Con venience Stores by Scott A. Sinder and John B. Williams; for the News paper Association of America et al. by Bruce H.E. Johnson, P. Cameron DeVore,René P. Milam, Steven R. Shapiro, Stuart D. Karle, Robin Bier- stedt, Lucy Dalglish, and GreggLeslie; for the Product Liability Advisory Council, Inc., by Leslie G.Landau; and for the Washington Legal Founda tion by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of California et al. Seth E. Mermin and Corinne Lee Murphy, Deputy Attorneys General of California, Bill Lockyer, Attorney General, Richard Frank, M. Chief Assistant Attorney General, Herschel T Elkins and Den- Eckhart, nis Senior Assistant Attorneys General, Ronald Reiter, A. Su- pervising Deputy Attorney General, and Robert R. Rigsby, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho Alaska, of Janet Napolitano of Arizona, Mark Pryor of Arkansas, Ken Salazar of Colo- rado, Richard Blumenthal of Connecticut, Robert A Butterworth of Flor- ida, Earl I. Anzai of Hawaii, Alan G.Lance of Idaho, Jim Ryan of Illinois, Steve Carter of Indiana, Tom Miller Iowa, of Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Steve Rowe of Maine, J. Curran, Joseph Jr., of Maryland, Mike Hatch of Minnesota, Mike Moore of Mississippi, Jeremiah W.Nixon of Missouri, Mike McGrath of Montana, Frankie Sue Papa Del of Nevada, Philip T. McLaughlin of New Hampshire, John Farmer of New Jersey, Patricia Madrid New Mexico, Eliot Spitzer of of New York, Wayne Stenehjem of North Dakota, Herbert D. Soil Northern Mariana Islands, D. Betty Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Mike Fisher of Penn-
sylvania, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul Summers of Tennessee, John Cornyn Texas, Mark Shurt- of Utah, William H. leff Sorrell of Vermont, Christine O. Gregoire Washington, Darrel V.McGrow,Jr., of West Virginia, and James E. Doyle of Wisconsin; for the Cities of Oakland, California, et al. by Stephen P. Berzon, Wall, Michael E. Lawrence Rosenthal, and Benna Solomon; Ruth the Court. the opinion delivered O’Connor
Justice Massachusetts Attorney General January In the ad- governing comprehensive promulgated and ci- tobacco, smokeless cigarettes, vertising and sale §§21.01-21.07, 22.01-22.09 Regs. of Mass. gars. Code tobacco, cigarette, smokeless group of Petitioners, a in Federal suit retailers, filed cigar manufacturers federal regulations violate claiming Court District *7 measure, large In Constitution. States the United and law valid regulations are the determined Court the District Appeals for States Court The United and enforceable. part, con- part and reversed affirmed the First Circuit by pre-empted federal regulations are not cluding that the first The Amendment. the First do violate law and ciga- certain is whether for our review question presented by Federal pre-empted regulations are advertising rette (FCLAA), Stat. Advertising Labeling Act Cigarette and ques- § seq. The second et amended, 15 U. C. 282, S. as governing the certain is whether presented tion First products violate sale of and Amendment. M, Harris, Haddad, James E. al. Mark by City Angeles
for Los et K, Hahn; et al. by York Guerra, of New City for the and James R. Joseph Natrella, Richard Koerner, Hess, Elizabeth Susan J. D. Leonard Michael Gutman; Founda- R. Legacy the American for M. and Sandra Weinberg, Carome, and Mat- Jr., J. Hut, Patrick Payton, John Stephen Aby tion Donald W. et al. by Brill; Association American Medical thew A for the by David Kids et al. Garner; Tobacco-Free Center for for National Morrison, Myers; L. for Matthew Zieve, B. and Vladeck, Alan Allison M. Ruda, Richard by et al. Legislatures Conference State the National Pierre; Control the Tobacco La and D. Bruce for Crowley, and I. James Daynard. A. Center, Inc., by Richard Resource Dupage Attorney the State’s curiae for filed of amici were Briefs Birkett, Jr., E. Joseph Hodyl, Richard Illinois, al. County, et by Randal Association Planning American Wolfe; J. for the Nancy R. Morrison.
hH In November 1998, along Massachusetts, with over 40 States, other reached a agreement landmark major manufacturers in industry. signatory States settled their against claims companies these in ex- change monetary payments permanent injunctive re- (Outline App. lief. See 253-258 of Terms for Massachusetts Settlement); in National Tobacco Master Settlement Agree- (Nov. 1998), ment http://www.naag.org. At the press covering conference Massachusetts’ decision sign agreement, then-Attorney General Harshbarger Scott an- nounced as one of his last acts in office,he would create protection consumer regulations to restrict advertising and practices sales products. for tobacco explained He that the regulations were necessary in order to “close holes” in the agreement settlement stop Big “to Tobaccofrom recruit- ing new among customers the children of Massachusetts.” App. 251. January
In pursuant authority his prevent deceptive unfair or practices in trade, Mass. Gen. Laws, *8 § (1997), ch. 93A, (At- Attorney Massachusetts General General) torney promulgated regulations governing the sale cigarettes, advertisement of smokeless tobacco, and ci- gars. purpose The cigarette of the and smokeless tobacco regulations is “to deception eliminate and unfairness in way cigarettes and smokeless products tobacco are mar- keted, sold and distributed in Massachusetts in order to ad- dress the cigarette incidence of smoking and smokeless to- by bacco use legal age children under [and] . . . in order to prevent products by to access such underage consumers.” §21.01 Regs. Code of Mass. The purpose similar the cigar regulations is “to deception eliminate and unfair- way ness in cigars cigars and little packaged, are mar- keted, sold and distributed in [so that] Massachusetts . . . may consumers adequately informed about the health properties, smoking, cigar addictive its risks associated to cigars a safe alternative perception that and the false by cigar that] [and use the incidence cigarettes . . . so prevent legal age in order to ... under addressed children underage products by consumers.” Ibid. such access to scope settle- regulations than the master The have broader practices, and agreement, reaching advertising, sales ment agree- industry by the covered members variety place of restrictions regulations ment. The advertising, sales advertising, point-of-sale retail outdoor sampling of promotions, mail, transactions, transactions cigars. products, for and labels being smokeless tobacco provide:
challenged before this Court “(2) Except Practices. as other- Retail Outlet Sales [§21.04(4)], or provided it be an unfair shall wise or any person who sells deceptive practice or act products cigarettes or smokeless tobacco distributes through a outlet located Massachusetts retail within following engage any retail outlet sales practices:
“(c) cigarettes Using displays or smoke- self-service products; less tobacco
“(d) Failing place cigarettes and smokeless tobacco products consumers, of all out of the reach only personnel.” outlet in a location accessible 21.04(2)(c)-(d). §§ Advertising
“(5) Except provided in as Restrictions. 21.04(6)], prac- [§ deceptive it an unfair or act shall be any manufacturer, or retailer en- tice for distributor *9 practices: gage any following in of “(a) advertising advertising, including in en- Outdoor a retail advertising from within es- stadiums and closed or from the is directed toward visible tablishment that any establishment, outside of the in location that is any public playground, play- 1,000 within a foot radius of park, ground public elementary area in school or sec- ondary school;
“(b) cigarettes Point-of-sale of or smokeless products any portion placed of which is lower any than five feet from floor of retail establishment which located within is a one thousand foot radius of any public playground, playground public park, area in a elementary secondary school or school, and which not §§21.04(5)(a)-(b). adult-only an retail establishment.” cigar provide: still at issue “(1) Except pro- Retail Sales Practices. as otherwise [§22.06(4)], in it vided shall be an unfair deceptive or act practice any person or for cigars who sells or distributes cigars directly or little to consumers within Massachu- any engage following practices: setts to in “(a) sampling cigars cigars or promotional little §21.06(l)(a). give-aways cigars cigars.” or little “(2) Except Retail Outlet Sales Practices. as other- 22.06(4)], [§ provided in wise it shall an unfair or de- practice ceptive any person act or for who sells or dis- cigars cigars through tributes or little outlet retail engage any located within Massachusetts to of the following practices: retail outlet sales “(c) Using displays cigars cigars; self-service or little “(d) Failing place cigars cigars little out reach of all only consumers, and in a location accessible §§22.06(2)(c)-(d). personnel.” to outlet Advertising “(5) Except provided Restrictions. as 22.06(6)], [§ deceptive prac- it shall be an unfair or act or any manufacturer, tice distributor or retailer to en- gage any practices: following
“(a) cigars, advertising cigars Outdoor of or little includ- ing advertising in stadiums and enclosed from is directed to- within a retail establishment that establishment, ward or visible the outside of the from any any public 1,000 foot location within radius playground, playground public park, area in a elemen- tary secondary or school school; “(b) cigars cigars advertising of or little Point-of-sale any portion placed which five feet from than low;er any the floor which is located retail establishment any public play- within a one thousand foot radius of ground, playground park, elementary public area in a secondary or school and which is not an adult- school, §§22.06(5)(a)-(b). only retail establishment.” The term “advertisement” is defined as:
“any pictorial graphic, oral, written, or statement or representation, by, any person made or on of, behalf who packages, imports manufactures, for or sale, distributes [tobacco products], pur- sells within Massachusetts pose promote or effect of which is to the use or sale of product. includes, Advertisement without limita- any picture, logo, symbol, selling message, tion, motto, graphic display, image, recognizable pat- visual color or any product colors, tern of or other indicia of identifica- tion identical or to, similar or with, identifiable those any [tobacco used product]. brand includes, This without permanent limitation, utilitarian items or semi-permanent product fixtures with such indicia of awnings, lighting display identification such as fixtures, clocks cases, mats, and door but does include utilitar- ian items with a of 200 volume cubic inches less.” §§21.03,22.03. regulations,
Before the February effective date of industry Attorney 2000, members of the sued General the United District Court for the District States (Lorillard Four Massachusetts. manufacturers Company, Corpora- Tobacco Brown & Williamson Tobacco Reynolds Company, tion, R. J. Tobacco Philip In- Morris (U. corporated), products a maker of smokeless tobacco S. *11 Company), cigar Smokeless Tobacco and several manufactur- many regulations ers and retailers claimed that violate Supremacy Clause, the Commerce the Clause, the First and § Fourteenth Amendments, and Rev. 42 Stat. U. S. C. §1983. parties sought summary judgment. The 76 F. (1999); Supp. Supp. 2d 127 84 F. 2d 180,183 ruling, In its first the District Court considered the Su- § premacy Clause claim that the FCLAA, 15 1331 U. S. C. seq., pre-empts et cigarette advertising regulations. the Supp. prescribes 2d, at The F. 128-134. FCLAA the health warnings appear packaging that must on and in advertise- cigarettes. pre-emption ments for The FCLAA contains a provision prohibits imposing any “require- that a from State prohibition smoking ment or based on and health . . . with respect advertising promotion to the or cigarettes.” of . . . 1334(b). § pre-emption provision The FCLAA’s does not cigars. cover smokeless tobacco or explained question The District Court that the central for purposes pre-emption regulations is whether the create a predicate legal duty smoking based on The health. pre-emption provision pro- court that reasoned to read the any advertising regulation scribe state enacted due to health smoking expand Congress’ purpose concerns about would be- yond scope powerless regu- a reasonable leave States late in the The area. court concluded that restrictions on advertising the location of smoking are not based pre-empted by health and thus are not the The FCLAA. provision permitted District Court also concluded that display sign retailers to a black white “tombstone” read- ing Regs. Here,” “Tobacco Products Sold Code Mass. 21.04(6) § (2000), pre-empted by was the FCLAA. the considered ruling, District Court separate
In a Attorney violate General’s claim Rejecting Supp. 2d, 183-196. F. First Amendment. apply, scrutiny should argument petitioners’ that strict & four-part Hudson Gas test applied of Central court Y, 447 S. 557 N. U. Corp. Public Comm’n Elec. Serv. (1980), that the speech. court reasoned The commercial for regu- adequate basis Attorney provided an General had cigarettes be- cigars well as lating tobacco as and smokeless among products. court cause of the similarities prohibit advertising regulations, which held the outdoor play- feet of a school 1,000 within outdoor they because ground, Amendment do not the First violate narrowly government and are interest advance substantial necessary. The speech than suppress more tailored to no which regulations, practices that the sales court concluded *12 products, of tobacco the and distribution restrict location significant they implicate scrutiny do not survive because point-of-sale ad- speech invalidated the interest. The court advertising require vertising regulations, indoor which finding that floor, placed feet from the no lower than five justification provided Attorney sufficient had not the General ruling re- The District Court’s for that restriction. cigar warning requirements the spect Commerce the is not before this Court. Clause Appeals the First Circuit
The States Court United part App. stay pending appeal, and affirmed 8-9, issued a judgment, part Consol- the District Court’s reversed (2000). Reilly, With Cigar Corp. 218 F. 3d idated Appeals respect Supremacy Clause, the Court to the Attorney ruling Court’s affirmed District pre- cigarette. regulations are General’s persuaded was First Circuit empted by the The FCLAA. Circuits, which reasoning by and Seventh the Second provision is pre-emption that the FCLAA’s had concluded regula- pre-empts provision ambiguous, that the and held tions of the content, but not the location, of adver- tising. See Greater New York Metropolitan Food Council, Inc. v. (CA2 Giuliani, 195 F. 3d 1999); 104-110 Federa- tion Advertising Industry Representatives, Inc. v. Chi- cago, (CA7 1999). F. 3d 633, 636-640 respect
With
to the First Amendment, the
Ap-
Court of
peals applied the Central Hudson
test.
As for the that smokeless cigars tobacco and *13 cigarettes, different from expressed the court misgiv- some ings equating about all products, but ultimately de- cided Attorney that the presented General had sufficient evi- respect dence with to products all three regulate to them similarly. The Court Appeals’ respect decision with to cigar the warning requirements and the Commerce Clause is not before this Court. disposi- pending stayed mandate Appeals its Court
The cig- App. 13. The certiorari. petition writ of of a for a tion Company Tobacco and U. S. Smokeless manufacturers arette Appeals’ decision challenging the Court petition, filed advertising reg- point-of-sale respect to outdoor and with grounds, and Amendment pre-emption and First ulations grounds. First Amendment regulations on practices the sales raising again petition, separate companies cigar filed a advertising, challenge to outdoor Amendment a First regulations. practices advertising, sales point-of-sale (2001), resolve petitions, U. S. 1068 granted both We respect Appeals among Courts the conflict advertising regu- cigarette pre-empts the FCLAA whether Lindsey v. Tacoma-Pierce cf. here, at issue like those lations (CA9 1999), to de- Dept., County 195 F. 3d Health presented in important Amendment issues First cide these cases.
II de- we must issues, Amendment reaching the First Before Attorney pre-empts Gen- law extent federal to what cide petitioners cigarette contend regulations. The eral’s § pre-empts seq., the Attor- et FCLAA, 15 S. C. 1331 U. regulations. ney General’s A com- States Constitution 2, of the United VI, cl. Article su- “shall be the the laws of the States mands that United Thing any the Constitution Land; . . . preme Law the notwithstanding.” Contrary any to the or Laws of State (1819) Maryland, 316, 427 4 Wheat. also McCulloch See (“It obsta- supremacy, remove all very essence of is of the modify sphere, and so within its own to its action cles governments”). This every power in subordinate vested generated consider- relatively simple has mandate clear had to discern we have where cases discussion able particu- in a Congress pre-empted state has action whether
541 lar may area. State action be by express foreclosed lan guage congressional in a g., Cipollone enactment, see, e. v. Liggett Group, (1992), Inc., 504, 505 S. by implication U. 517 depth from the congressional and breadth of a scheme that occupies the legislative g., field, see, e. Fidelity Fed. Sav. & Loan Assn. la Cuesta, v. De (1982), 458 141, 153 U. S. byor implication because of a congressional conflict with a enact g., e. ment, see, Geier v. American Honda Co., Motor 529 (2000). 861, U. S. 869-874 In Congress the FCLAA, has comprehensive crafted a federal scheme governing promotion cigarettes. The pre-emption provision provides: FCLAAs
“(a) Additional statements
“No relating statement smoking health, other required by than the statement section 1333 title, this required any shall on package.
“(b) State requirement
“No prohibition or based on smoking and imposed health shall be under State law with respect to the advertising promotion any cigarettes the packages which conformity are labeled in with the provisions § chapter.” of this 15 U. S. C. 1334. pre-emption provision FCLAAs does cover smoke-
less cigars. tobacco or
In these cases, our task to identify is expressly domain pre-empted, Cipollone, supra, see at 517, “an because ex press pre-emptive definition of the reach of a statute . . . supports a reasonable inference Congress . . . that did not pre-empt intend to Freightliner matters,” other Corp. v. Myrick, 514 U. S. Congressional purpose the “ultimate touchstone” of our inquiry. Cipollone, supra, (internal quotation omitted). at 516 marks Because “federal law [a] is said to fiel[d] bar state action in of traditional state regulation,” namely, advertising, Corp. see Packer Utah, (1932), S. “wor[k] U. we assumption *15 [a]re powers States police of the super- historic
the [is] mani- clear and the by Act unless Federal the seded Stand- Labor Div. Congress.” of purpose fest of California Inc., A., 519 Dillingham Constr., N. v. ards Enforcement omitted). (internal (1997) marks quotation 316, 325 U. S. (1996). 470, 475 Lohr, 518 U. S. Medtronic, v. Inc. also See language the statute. of begins analysis with the Our (1999). 432, S. 438 Jacobson, U. Hughes v.Co. Aircraft pre- unequivocally Congress provision, pre-emption In the ciga- on statements requirement any of additional the cludes § C. 15 U. S. provided 1333. beyond packages those rette 1334(a). precludes § localities Congress States further on prohibition based any requirement or imposing from pro- advertising and to the smoking respect with and health 1334(b). § question, the sec- Without cigarettes. motion employs far first; it expansive than is more ond clause is action the state sweeping language to describe more of the meaning element give to each pre-empted. We must interpretation in our provision. We are aided pre-emption provision and pre-emption considering predecessor by language was current in which the the circumstances McCarthy Bron- supra, v. adopted. Medtronic, 486; See (1991); Cartier, Inc., Corp. K mart son, 136, U. 500 S. 486 S.U. Surgeon Report Gener- groundbreaking
In 1964,the Smoking Health concluded Advisory and Committee al’s im- smoking of sufficient “[c]igarette health hazard appropriate reme- to warrant portance States United and Wel- Department Health, Education, dial action.” Smoking Advisory Committee, Surgeon fare, General’s U. S. as a FCLAA Congress enacted the and Health 33. In regulation impending proactive in the measure face 282. 89-92,79 Stat. Pub. agencies the States. L. federal and purpose of the supra, Cipollone, at 513-515. See also adequately public about to inform the was twofold: FCLAA national smoking, protect the and to hazards from economy interference due to diverse, nonuniform, and confusing cigarette and labeling advertising regulations respect relationship between smoking health. § Pub. L. 89-92, 2. The FCLAA prescribed a label for ciga- rette packages: “Caution: Cigarette Smoking Be Haz- May ardous to Your Health.” §4. The FCLAA also required Secretary Health, Education, and (HEW) Welfare the Federal Trade (FTC) Commission to report annually to Congress about the health consequences of and the smoking promotion of cigarettes. § 5. Section 5 of the FCLAA included pre-emption provision in which “Congress spoke Cipol- precisely narrowly.” *16 supra, lone, at 518. (a) Subsection prohibited any require- ment of additional statements on cigarette packaging. Sub- (b) section provided that “[n]o statement to relating smoking and health shall be required in the of any ciga- rettes the packages of which are labeled in conformity with the provisions of this Act.” Section 10 of the FCLAA set a termination date of July 1969, for these provisions. As we have previously explained, “on their face, [the pre- emption] provisions merely prohibited state and federal rulemaking bodies from mandating particular cautionary statements on labels cigarette [subsection (a)] or in ciga- rette advertisements Cipollone, (b)].” [subsection at supra, 518.
The FCLAA was enacted with the expectation that Con- would gress reexamine it in 1969 in light the developing information about cigarette and smoking health. H. R. Rep. No. 586, 89th 1st Sess., Cong., 6 (1965); 111 Cong. Rec. 16541 (1965). In the years, intervening Congress received reports and recommendations from the HEW and Secretary the FTC. S. No. Rep. 91-566, (1969). 2-6 pp. The HEW Secre- tary recommended that Congress strengthen the warning, the require warning all and packages in advertisements, and publish tar and nicotine levels on packages in adver- Id., at 4. The FTC made similar and additional tisements. on radio ban The FTC complete sought
recommendations. broadcasters that a requirement advertising, and television concerning announcements hazard for health devote time re- education public and increased funding smoking, Congress The FTC Id., 6. urged search smoking. about from regulating federal agencies prevent continue Federal addition, the In at 10. Id., advertising. cigarette ad- concluded (FCC) had Commission Communications created use the cigarettes which vertising promoted the about information in broadcast stations provide duty 6-7. Id., at smoking. hazards of cigarette hearings held committees and Senate 1969, House In and advertis- smoking health effects cigarette about from The emerged bill industry. ing warning strengthened the House Representatives Senate The provision. the pre-emption and maintained television on radio the ban bill, adding amended to its language pre-emption changing advertising, 4-5 91-897, No. pp. H. R. Conf. Rep. form. present Smoking Health Cigarette result the Public The was final Senate’s following in which Act Congress, FCLAA. changes three amendments, made significant drafted a First, 91-222, §2, Stat. 87. Pub. L. Congress Has General Surgeon new label that read: “Warning: *17 Your to Is Dangerous Smoking Determined That Cigarette it un- declared Second, §4. FCLAA, Congress Health.” offelectronic on medium any lawful advertise cigarettes to the FCCr-J6. communication subject jurisdiction provision, the current enacted pre-emption Congress Finally, based on or “requirement prohibition which any proscribes re- law under State . . . and health imposed smoking 5(b). § or of cigarettes. to the advertising promotion” spect fed- (b) did not regulation The new subsection pre-empt warning require- the FTC impose eral agencies, freeing S., at 505 U. See Cipollone, ments cigarette advertising. like its predecessor, new 515. The pre-emption provision, products. and other applied cigarettes, only Congress In again amended the FCLAA in the Com- prehensive Smoking Education Act. Pub. L. 98-474, 98 Stat. 2200. The purpose of the Act “provide was to a new strategy making Americans more any aware of adverse health effects of smoking, to assure timely and wide- spread dissemination of research findings and to enable indi- viduals to make informed §2. decisions about smoking.” The Act established warnings series of appear on a ro- tating cigarette basis on packages cigarette and in advertis- § ing, 4, and directed the Health and Human Services Secre- tary to implement create and an program educational about §3. health cigarette effects of smoking,
The FTC has report continued to practices on trade in the cigarette industry. In year 1999,the first since the master agreement, settlement reported the FTC that the industry expended $8.24 billion promo- largest expenditure tions, ever. Cigarette FTC, Report p. for 1999, Substantial increases were found in point-of-sale promotions, payments made to retailers to facil- itate sales, and retail buy offers such as get one, one free, product or giveaways. Id., at 4-5. Substantial decreases, reported however, were for outdoor advertising and transit advertising. Id., Congress at 2. agencies federal con- tinue to monitor advertising promotion practices in the cigarette industry. scope meaning of the current pre-emption provi-
sion become clearer once we consider original pre- emption language and the amendments to the FCLAA. question, Without plain “the language of the pre-emption provision in the 1969 Act is much Cipollone, broader.” S., U. at 520. Rather than preventing only “statements,” provision amended “requirement^] reaches all or prohibition^]... imposed under State law.” although And, the former statute only reached statements “in the advertis- ing,” provision governs current respect “with to the ad- vertising promotion” cigarettes. See Congress ibid. *18 expanded pre-emption provision the with respect to the regulate the FTC to time, it allowed and at the same
States, cigarette prohibited advertising. Congress also cigarette light Viewed altogether. advertising in media electronic provision pre-emption the current of context which the pre- whether the FCLAA adopted, we must determine was governing outdoor regulations empts Massachusetts’ advertising cigarettes. point-of-sale of
B acknowledged FCLAA Appeals the Court of The smoking prohibition any “requirement based on pre-empts or advertising promotion respect to the with and health ... 1334(b), § but cigarettes,” concluded S. C. . . . U. cigarette adver- nullify does not Massachusetts’ the FCLAA analysis its on tising regulations. The court concentrated regulations respect to” are “with the whether relying con- promotion, of its sister Circuits on two regulations only pre-empts clude that the FCLAA Appeals also cigarette advertising. The Court content of Attorney are a form that the General’s reasoned power; zoning, therefore of state traditional area against applied. presumption pre-emption Ap- cigarette petitioners that the Court of maintain peals’ respect analysis is “with to” inconsistent statutory legislative history, gives text and FCLAA’s advertising. prohibit cigarette all the States license to almost construing maintain there is no basis Petitioners also only pre-emption provision prohibit ad- content-based vertising regulations.
Although support Appeals’ they result, the Court Attorney not amicus curiae do General and United States as pre-emption fully analysis endorse that court’s textual provision. they advertis- Instead, assert that ing regulations they pre-empted are not because smoking Attorney “based and health.” The General and *19 the United States also contend regulations that the are not pre-empted they because not prescribe do the cig- content of advertising arette they fall squarely within the State’s traditional powers to control the location of advertising and protect the welfare of children.
Turning first to language the in the pre-emption provision upon by relied the Court of Appeals, reject we the notion that the Attorney cigarette General’s advertising regulations are not respect “with to” advertising promotion. We disagree with Appeals’ the Court of analogy to Employee Retirement Income (ERISA). Security Act of 1974 In some cases concerning ERISA’s pre-emption of state law, Court has had to particular decide whether a state law “re- lates employee to” an plan benefit covered ERISA even though the state law express makes no reference such a plan. e.g., See, Div. Labor Standards En- California Dillingham Constr., N. A., Inc., 519 S., forcement U. 324-325. Here, however, question there is no an about indi- rect relationship between regulations cigarette ad- vertising because the expressly target cigarette advertising. §21.04(5) Code of Regs. Mass.
Before Court, this the Attorney General focuses on dif- phrase ferent in the pre-emption provision: “based on smok- ing and health.” The Attorney argues General cig- arette regulations are not “based smoking on they health,” because do not involve con- health-related cigarette tent in advertising but target youth instead expo- cigarette sure to advertising. To be sure, Members of this Court have precise debated the meaning “based smok- ing and Cipollone, health,” see supra, at (plurality n. opinion), but we agree cannot with the Attorney General’s narrow construction of phrase. Congress
As enacted pre-emption the current provision, Congress did not solely concern itself with warnings health for cigarettes. In the 1969 Congress amendments, only the hazards about public warn scheme,to its enhanced public, protect the sought to smoking, but also cigarette ciga- images of being inundated including youth, from goal, pursuit latter advertising. In smoking in rette cigarettes. advertising of media Congress electronic banned contemplated additional Congress extent to the And advertising, it vested regulation targeted *20 authority the FTC. in pre- the current Congress crafted in which context
The prohib- Congress provision us to conclude emption leads regulations advertising motivated cigarette state ited has smoking Massachusetts health. about concerns underage cigarette incidence attempted the to address of Mass. advertising, see 940 Code smoking by regulating cigarette (2000), Congress’ §21.01 ban much like Regs. concern bottom, the At media. advertising in electronic advertising is intertwined cigarette youth exposure to about Thus smoking and health. cigarette about the concern with concern distinguish one attempt to Attorney General’s rejected. the other must from outdoor the State’s Attorney claims that next The General cigarettes are advertising regulations for point-of-sale location, and not they govern pre-empted because advertising. This also content, Stevens’ Justice (opin- Post,' at pre-emption. point respect with main part, and concurring judgment in in concurring part, in ion dissenting part). in surface some has distinction location
The versus content immediately follows the provision pre-emption appeal. The warnings. See 15 prescribes of the FCLAA section provision itself re- pre-emption §§ 1334. S. C. U. conformity statute. with” the cigarettes in “labeled fers 1334(b). cannot be § distinction But the content/location provision, pre-emption language of the squared “prohibitions” “im- “requirements” and all which reaches the content between A law.” distinction State posed under and the advertising location of the FCLAA advertising also cannot be reconciled with own Congress’ location-based restriction, which bans advertising electronic but media, not elsewhere. See § 1335. We are not at liberty pick and choose which provisions the legislative scheme we will post, consider, see J.), n. 5 (opinion of Stevens, but must examine the FCLAA as a whole. any
Moreover, distinction between the content and loca- cigarette tion of advertising collapses once implications approach fully are considered. argument, At oral Attorney pressed General was explain types what of state cigarette advertising, in his view, pre- empted by the FCLAA. The Attorney General maintained that a required state cigarette law that retailers to remove the word “tobacco” from required advertisements, or ciga- rette billboards to be blank, would be pre-empted if it were regulation of “health-related content.” Tr. of Oral Arg. 41, 42. The Attorney General also maintained, however, that a complete ban on all pre- would not be *21 empted Congress because did not intend to invade local con- trol over zoning. Id., at 42-44. The position latter clearly follows from the factual distinction between content and lo- cation, it but finds support no in the text of the FCLAA’s pre-emption provision. We believe that Congress wished to ensure that “a State not do through could negative mandate (e. g., banning cigarette all advertising) already which it was forbidden to through positive (e. do g., mandate man- dating particular statements).” cautionary Cipollone, (Blackmun, U. S., at joined J., by Kennedy and Souter, JJ., concurring in part dissenting part). in See also Vango Media, Inc. (CA2 v. New 1994) York, (hold- 34 F. 3d 68 ing pre-empted regulation a required public one health message every cigarette advertisements). four post, at 595-598, maintains that Con- Stevens,
Justice gress did not intend displace regulation state of the loca- cigarette tion of advertising. There is a critical distinction, regulations, zoning applicable generally however, between cigarette targeting regulations 551-552, and see infra, is inev- regulation, which type of The advertising. latter health, smoking and by about concerns itably motivated compre- FCLAA's the FCLAA. contradicts squarely pre-emption restrictions, and warnings, hensive locality could if a State little sense provision make would advertising. cigarette all simply and ban target we conclude ironic that it finds Stevens Justice protecting from and localities precludes States law “federal of a feet 1,000 products within dangerous from children “Federal that the prior conclusion light our school,” in impose a authority to constitutional lacks the Government similarly Lopez, 514 U. S. States ban” United motivated holding as is not 598-599, n. 8. Our Post, at only that the we hold states; as Justice broad Stevens cigarette targeting ad- pre-empts state FCLAA applicable generally to enact vertising. free remain States respect to regulations, regulate conduct zoning and to The reference at 552. cigarette sales. use Infra, Congress Lopez, held that inapposite. In we Lopez is also power in Clause of its limits Commerce exceeded a federal it made which Zones Act Gun-Free School at S.,U. zone. 514 firearm school possess a crime Supremacy concern cases, contrast, These 558-568. applied in a case pre-emption as the doctrine Clause regula- precluded state expressly certain Congress where not raise advertising. did Massachusetts tions we are not challenge FCLAA, to the constitutional its Congress constitution- exceeded with whether confronted enacting authority FCLAA. ally delegated *22 pre-emption and its see how the FCLAA fail to sum, In we specific concern between a distinction provision permit general the more cigarette minors about advertising, cigarette smoking health concern about and^ legisla- Congress crafted light fact especially in that tive solution for very those concerns. We also conclude that a distinction between regulation state op- location as posed to the cigarette content of advertising has no founda- tion in the text of the pre-emption provision. Congress pre-empted cigarette state advertising regulations like the Attorney General’s they because upset would legisla- federal tive require choices to specific warnings and impose cigarette ban on advertising in electronic media in order to address concerns about smoking and health. Accordingly, we hold that the Attorney General’s outdoor and point-of- sale advertising regulations targeting cigarettes pre- empted by the FCLAA.
C Although the prevents FCLAA States and localities from imposing special requirements prohibitions or “based on smoking and health” respect “with to the advertising pro- or motion” cigarettes, language still leaves significant power in the hands of impose States to generally applicable zoning regulations regulate and to conduct. As we noted Cipollone, phrase “each [the within provision] limits the [state universe of action] pre-empted by the statute.” 505 U. S., at 524 (plurality opinion). For instance, the FCLAA does not restrict a State lo- or
cality’s ability to enact generally applicable zoning restric-
tions. We
recognized
have
that state interests in traffic
safety and esthetics may justify zoning regulations for adver-
tising. See Metromedia, Inc. v.
Diego,
San
552 that advertisements and size of on the location
strictions ap- products equal with terms other apply cigarettes on to provision. pre-emption the ambit of pear to be outside smoking health.” not “based restrictions Such regulation of all state does not foreclose also The FCLAA cigarettes. of or use to the sale itas relates conduct reg governs explicitly state provision pre-emption FCLAA’s Accordingly, the “advertising promotion.”* of or ulations prohibiting laws pre-empt state does FCLAA an established contrary, is there To to minors. sales Congress has supports laws; such congressional policy that a con as minors prohibit sales to required tobacco to States funding for receiving grant substance block federal dition of 388, 42 U. S. C. 394, 106 Stat. activities. treatment abuse 300x-26(a)(1), §§ 300x-21. tobacco illegal or distribute Massachusetts, it to sell
In Laws, age of 18. Mass. Gen. persons products to under (2000). § and distribu- Having prohibited the sale 6 270, ch. may prohibit products minors, the State tion of tobacco conduct, criminal attach to offenses that common inchoate attempt. conspiracy, Cf. Central solicitation, such as New Corp. Public Serv. Comm’n Elec. v. Gas & Hudson of Int’l, Population Carey Seros. v. York, 563-564; 447 S., U. (1977); Pharmacy Vir- Virginia Bd. 431 701 S.U. of Inc., 425 U. S. ginia Council, Citizens Consumer (1995) (1976); (citing Reg. evidence 41330-41332 60 Fed. attempting under industry may individuals induce their have at also cigarettes). States and localities to smoke regulating to ensure disposal of conduct other means cigarettes. III-D, Part See do minors not obtain infra. “would pre-emption provision Report explained Senate *The any State political State or subdivision any no affect the way power minors, or the cigarettes taxation or the sale to the respect regulations. buildings, police or similar public smoking prohibition in the prohibitions requirements State or entirely It is local limited 91-566, p. No. Rep. S. cigarettes.” D petitioners The smokeless argue that if the State’s *24 point-of-sale outdoor and advertising regulations ciga for pre-empted, are rettes then the same regulations respect to smokeless tobacco must be invalidated be they cause cannot be cigarette severed provisions. from the Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00- p. 00-597, 4, n. 5. The District Court did not reach severability the respect issue with advertising provi to the sions before Supp. this Court. 76 F. at 2d, n. The Appeals 11. Court of also severability did not reach because that court likewise cigarette that the concluded ad vertising pre-empted. were not 3d, 218 F. at 37, n. 3. We decline to reach an issue that was not decided Collegiate below. National Athletic Assn. v. Smith, 525 U. S.
Ill By its pre-emption terms, the provision FCLAA’s only applies cigarettes. Accordingly, we must evaluate the cigar petitioners’ smokeless tobacco and First Amendment challenges to point-of-sale the State’s outdoor advertis- ing regulations. cigarette petitioners The did raise a pre-emption challenge practices to the regulations. sales analyze Thus, we must well as as the smoke- cigar petitioners’ less tobacco claim that certain sales practices regulations products for violate First Amendment.
A years, For over 25 recognized the Court has that commer- speech cial does not purview outside fall of the First g., Virginia See, Amendment. e. supra, Bd. Pharmacy, of at 762. Instead, the Court has afforded speech commercial “ ” protection measure of First Amendment ‘commensurate’ position with its to other constitutionally relation guaran- expression. g., teed See, e. Florida Bar v. It, Inc., Went For (1995) State Trustees (quoting Board 618, 623 515 U. S. of (1989)). recogni- In 469, 477 Fox, 492 U. S. v.Y.N. Univ. a commer-* speech proposing between the “distinction tion of subject traditionally in an area which occurs transaction, cial speech,” varieties of other regulation, and government (internal marks quotation supra, at Hudson, Central regula- analyzing omitted), developed a framework we “substantially similar” speech that of commercial tions restrictions, Board place, and manner time, test for supra, 477. Fox, Y.v. N. State Univ. Trustees elements: analysis four contains expres- whether outset, we must determine
“At the For com- First Amendment. protected sion is at least provision, it speech to come within mercial *25 misleading. activity and lawful concern must inter- governmental the asserted askwe whether Next, positive an- yield inquiries If both est substantial. is regulation di- whether determine we must swers, asserted, and governmental interest rectly advances necessary to than more it is not extensive whether supra, at 566. Hudson, Central that interest.” serve analysis Hudson reject urge the Central tous Petitioners litigants They the first scrutiny. are not apply strict and Broadcasting Assn., g., Orleans See, e. New do so. Greater (1999). Admittedly, 173,184 States, 527 U. S. v. Inc. United about expressed doubts have Court several Members apply in analysis it should whether and the Central Hudson supra, at Orleans, g., e. New See, particular eases. Greater Liquormart, judgment); concurring in J., 197 U (Thomas, (1996)(joint 484,501,510-514 Island, 517 U. S. Inc. v. Rhode JJ.); id., at opinion Ginsburg, Kennedy, Stevens, concurring judg- in part concurring in J., 517 (Scalia, part concur- concurring in ment); id., J., at 518 (Thomas, Orleans, New here, in Greater ring judgment). as But Hudson, as ground. Central to break new need we see “no
555 in our more recent applied commercial cases, speech provides an basis for adequate decision.” S., U. at 184. of Central the last
Only Hudson's two steps anal- four-part are at issue ysis here. The has Attorney General assumed purposes summary judgment petitioners’ speech is entitled to First Amendment protection. 3d, 43; F. at 2d, F. at Supp. 185-186. With to the respect second step, none of the petitioners contests importance State’s interest the use of tobacco preventing mi- products by nors. Brief for Petitioners Lorillard Tobacco etCo. al. in 00-596, No. 41; Brief for p. Petitioner U. S. Smokeless To- bacco Co. Nos. 00-596 and 00-597, 16; at Brief for Petition- ers Altadis U. S. A. Inc. et al. in 00-597, No. 8.p. of Central Hudson
The third step concerns the relation- between the harm that ship underlies the State’s interest and the means identified State advance by that inter- est. It requires
“the restriction speech directly materially advanc[e] the asserted governmental interest. ‘This burden is not satisfied mere speculation rather, conjecture; a governmental body sustain seeking restriction on commercial must demonstrate that speech harms it recites are real and that its restriction inwill fact allevi- ” ate them to a material Greater New Orleans, degree.’ supra, Fane, (quoting 507 U. S. Edenfield (1993)). 770-771
We do not, however, that require data “empirical come ... a surfeit of accompanied by background information.... [W]e have permitted to litigants justify restrictions speech reference to and studies anecdotes to different pertaining locales or even, case altogether, strict scru- applying to restrictions tiny, based justify solely consensus, history, ” Florida Bar Went common sense.’ It, ‘simple For v. supra, Inc., (citations at 628 and internal quotation marks omitted). Hudson the Central
The of last “comple- analysis step restric- whether ments” the third “asking speech step, the inter- to serve tion is not more extensive than necessary swpra, at Orleans, Greater New 188. ests that it.” support means” it that “the least restrictive We have made clear law a reasonable standard; instead, not “ the case requires ends the means chosen to ‘fit between the legislature’s tailored ends, those a means ... narrowly accomplish ” supra, It, Inc., Went For at achieve the desired objective.’ Fox, N. Y. Board Trustees State Univ. (quoting of supra, 480). on the third and fourth at steps Focusing the Central Hudson the outdoor we first address analysis, advertising regulations advertising point-of-sale sales then address smokeless tobacco and We cigars. for all tobacco products. practices regulations
B smokeless outdoor advertising regulations prohibit a 1,000-foot tobacco or within radius cigar advertising of a school 940 Code of Mass. playground. Regs. 22.06(5)(a) (2000). The District Court §§21.04(5)(a), had Court concluded General Appeals Attorney identified a real with use of tobacco problem prod- underage ucts, that com- would limiting youth exposure bat no and that the burdened more problem, regulations than the State’s necessary goal. speech accomplish 44-53; 2d, 3d, F. 84 F. at 186-193. The smokeless Supp. tobacco and take issue with all these cigar petitioners conclusions.
The smokeless tobacco and contend that cigar petitioners Central General’s do not Attorney satisfy Hudson’s third maintain the At- step. They although General have identified a with torney may problem underage he has not identified an severe smoking, equally use of smokeless problem respect underage
557 cigars. petitioner The smokeless emphasizes parity” cigarettes “lack of between and smokeless tobacco. Brief for Petitioner U. S. Smokeless Tobacco GO- Co. Nos. 596 and 00-597, Reply 19; at Brief for Petitioner U. S. Smokeless Tobacco in Nos. Co. 00-596 pp. and 00-597, 4,10- cigar 11. petitioners The catalog a list of differences be- cigars tween products, and other tobacco including the char- products acteristics of the marketing strategies. Brief for Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, petitioners finally at 9-11. The Attorney contend that the prove advertising General cannot has a causal link to limiting tobacco use such advertising materially will al- any problem leviate underage products. use of their Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 20-22; Brief for Petitioners Altadis U. S. A. Inc. et al. in No. at 00-597, 9-16. previous
In cases, we have acknowledged theory product advertising stimulates products, demand for while suppressed advertising may opposite have the effect. See Rubin, 514 S.,U. 487; at Edge United States Broadcasting (1993); Co., 509 U. S. Central Hudson, 447 S.,U. Attorney 568-569. The General cites numerous studies to support theory this products. the case of tobacco Attorney
The
part
General relies in
gathered
on evidence
(FDA)
Drug
the Food and
attempt
Administration
in its
regulate
advertising
cigarettes
and smokeless to-
Regulations
bacco. See
Restricting the Sale and Distribu-
Cigarettes
tion of
and Smokeless Tobacco Products to Pro-
tect Children and
Proposed
Adolescents, FDA
Rule, 60 Fed.
(1995);
Reg.
Regulations
Restricting the Sale and Dis-
Cigarettes
tribution of
and Smokeless Tobacco to Protect
Children and Adolescents, FDA Final
Reg.
Rule, 61 Fed.
promulgated
FDA
regu-
finding
lations after
prior
period
that the
to adulthood is
overwhelming
when an
majority of Americans first decide to
products,
use tobacco
and that advertising plays a crucial
*28
Id.,
role
at 44398-44399. We later held
decision.
authority
statutory
regulate
that thé FDA lacks
to
tobacco
products.
Corp.,
See FDA v. Brown & Williamson Tobacco
(2000).
Attorney
For instance, children cigarettes smoke fewer brands of than directly adults, and those choices heavily track the most advertised brands, unlike choices, adult which are more dis- persed pricing. Proposed and related to FDA Rule, 60 Fed. Reg. study 41332. Another year revealed 72% of 6 olds ages and 52% recognized of children 3 to “Joe Camel,” anthropomorphic symbol Reynolds’ cartoon of R. J. Camel cigarettes. brand Id., at 41333. After the introduction of cigarettes’ youth Camel, Joe Camel share of the market rose from 4% to Id., 13%. at 41330. The FDA also identified trends in consumption among populations, certain young such as women, that correlated to the introduction and products marketing of geared population. toward that Id., at 41333. specific FDA also findings made respect
smokeless tobacco. The FDA “[t]he concluded that recent very large increase in the use of prod- smokeless tobacco by young people ucts and the prod- addictive nature of these has persuaded agency ucts products that these must be any regulatory approach included in designed help that is *29 prevent generations young future people becoming from addicted nicotine-containing products.” Id., tobacco 'analyzed 41318. have Studies by smokeless tobacco use young people, discussing gender, trends based on school grade, g., Boyd and See, locale. e. al., et Use of Smokeless among Tobacco Children and Adolescents the United (1987), States, 16 Preventative Medicine 402-418 Record, 38, Doc. No. Exh. 63.
Researchers tracked patterns a dramatic shift of smoke- less younger tobacco use from older to past users over the years. e.g., See, 30 Proposed FDA Reg. Rule, 60 Fed. 41317; Tomar, Giovano, Erickson, & Smokeless tobacco brand preference switching and brand among US adolescents and young (1995), adults, 4 Tobacco Control 67 Record, Doc. Department No. 38, 62; Exh. of Health and Human Services, Preventing Among Tobacco Young People: Report Use A (1994), Surgeon General 163 Record, Doc. 36, No. Exh. 1. particular, In industry smokeless tobacco boosted sales by tenfold 1970’s targeting young and 1980’s males. Proposed Reg. FDA Rule, 60 Fed. 41331. See also National Cigars: Cancer Institute, Health Effects Trends, and Smok- ing (1998), Monograph p. Tobacco Control 9, No. Rec- ord, 39, Doc. No. study Exh. 67. Another documented the targeting youth through smokeless tobacco sales and ad- vertising techniques. Advertising Ernster, and Promotion of Smokeless Tobacco Products, National Cancer Institute No. Doc. Record, (1989), 87-93 8, pp. No.
Monograph Exh. 66. re- evidence different General presents Attorney
The use on cigar no data underage was There to cigars. spect “uncom- was considered the behavior to 1996 because prior Smoking examination.” be worthy not to mon enough FTC 13; at9, Report No. Control Monograph Tobacco Promotional and Advertising Sales Cigar Congress: (1999), Rec- 1996 and Years p. for Calendar Expenses decided 1995, the FDA In 39, Exh. 71. ord, Doc. No. of tobacco product in its attempted regulation include cigars not currently “the does agency explaining advertising, deliv- are drug that these products evidence sufficient have of its its investigation has focused FDA .... devices ery and smokeless on cigarettes over tobacco authority products because cigars, and not pipe tobacco products, to- and smokeless use cigarettes predominantly young people 41322. Fed. Reg. bacco products.” has use data on however, cigar youth More recently, in its concluded Institute National Cancer emerged. is in- minors use rate of cigar 1998 Monograph use rates States, that, in some cigar creasing *30 minors. for use rates smokeless than the higher 19,42-51. 9, at No. and Tobacco Control Monograph Smoking “sub- concluded to the FTC In its 1999 Report Congress, FTC of trying cigars.” stantial numbers adolescents of Health 9. See also Department at Congress, Report General, Youth Use Services, of Human Office Inspector and (1999), of Risk and of Use of Patterns Perceptions Cigars: 39, Exh. 78. Record, Doc. No. link advertising between also demonstrated have
Studies the After recognized for Congress and demand cigars. adver- banned cigarette advertising images power ci- of small media, television advertising in electronic tising the “filled 1973,” in 1972 “increased dramatically gars . . . soared.” advertisers,” and “sales left void by cigarette Smoking and Tobacco Control Monograph 9,No. at 24. In Congress extended the electronic media advertising cigarettes ban cigars. little Cigar Little Act, Pub. L. § 93-109, 3, 87 Stat. 352, § as amended, 15 U. S. C. 1335. In the cigar 1990’s, advertising campaigns triggered a boost Smoking sales. and Tobacco Monograph Control 9,No. at 215.
Our review of the record reveals that Attorney the Gen- provided eral ample has problem documentation of the with underage use smokeless tobacco cigars. In addition, disagree we petitioners’ claim that there is no evidence that preventing targeted campaigns limiting youth expo- sure will underage decrease use of smokeless cigars. tobacco and On this record and posture in the summary judgment, we are unable to conclude that the At- torney General’s regulate decision to advertising of smoke- less cigars tobacco and in an effort to the combat use of to- products by bacco minors was based on mere “speculation [and] conjecture.” v. Fane, 507 S.,U. at 770. Edenfield
Whatever
strength
of the Attorney General’s evidence
justify
the outdoor advertising regulations, however, we
conclude
regulations
that the
satisfy
do not
the fourth step analysis.
Central Hudson
step
final
of the Central
analysis,
Hudson
inquiry
the “critical
requires
case,”
this
fit
reasonable
between the means
regula-
and ends of the
tory scheme. 447 U.
S.,
Attorney
569. The
General’s
regulations do not meet this standard. The
sweep
broad
indicates that
Attorney
General did not
“carefully calculate] the costs and benefits associated with
speech
burden imposed” by
regulations.
Cincin-
nati
Discovery
Network,
(1993)
Inc.,
The outdoor advertising regulations prohibit any smoke- less cigar tobacco or advertising 1,000 within feet of schools main- Court, petitioners In District the
or playgrounds. advertising would prevent this prohibition that tained Massachu- Worcester, Boston, Springfield, of to 91% 87% ap- to 91% figure The 87% 191. 2d, at F. Supp. setts. but the of effect regulations, the not to include only pears applicable other generally by limitations imposed the also Gen- The Attorney 161-167. See App. restrictions. zoning the “concede[d] but figures eral petitioners’ disputed 50. 3d, 218 F. is substantial.” reach regulations the regulations concluded Thus, Appeals the Court of the major portion a substantial advertising prohibit Ibid. of Massachusetts. areas metropolitan Gener- the Attorney reach of The geographical substantial other by is compounded regulations outdoor advertising al’s advertis- not only includes advertising “Outdoor” factors. in- also establishment, advertising but outside an located ing the outside from visible if store side a size any advertisements restrict store. statements. oral also includes and the advertisement term §§21.03, 22.03 of Mass. Code Regs. con- would areas, these regulations In some geographical of truth- the ban on communication stitute complete nearly to adult tobacco cigars smokeless ful information about the and scope regulations, The breadth consumers. the reg- adopted the General which Attorney process calculation careful not ulations, do demonstrate involved. interests speech consider seem to did General not
First, Attorney commercial speech 1,000-foot restriction impact appar- General The Attorney areas. metropolitan major de- on the FDA’s based distance 1,000-foot selected ently it when restriction 1,000-foot identical an cision impose ad- and smokeless regulate attempted Brief 44399; Rule, Final Fed. FDA Reg. See vertising. 1,000-foot the FDA’s 23. n. But 45, and for Respondents Gen- for the Attorney basis was an adequate regulation *32 regulations. degree eral to tailor the Massachusetts to speech suppressed which is alternative avenues for —or speech particular remain regulatory available—under a specific. e.g., scheme tends to case See, Renton, specific analysis a S.,U. 53-54. And case makes sense, although locality may a State have common interests underage smoking and concerns about and the effects of to- impact speech advertisements, bacco the of a restriction on undoubtedly vary place place. will regu- from The FDA’s widely disparate lations would have had effects nationwide. Attorney in Massachusetts, Even the effect of the General’s regulations vary speech will based on whether a locale is rural, uniformly sweep suburban, or urban. The broad geographical tailoring. the limitation demonstrates a lack of range In addition, the of communications restricted seems unduly regula- instance, broad. For it is not from clear the tory why necessary scheme a ban on oral communications is Apparently to further the interest. that State’s restriction retailer, inquiries means that is unable to answer about its products tobacco if that communication occurs outdoors. Similarly, signs any a ban on all ill size seems suited to target problem highly opposed billboards, visible as signs. smaller To extent that have studies identified particular promotion practices appeal youth, tailoring targeting practices would involve those permitting while crafted, others. As make among practices no distinction on this basis. recognized Appeals
The Court of that the to- smokeless cigar petitioners’ bacco and concern about the amount of speech restricted “valid,” was but reasoned that there was protecting an “obvious connection the state’s interest in premise 3d, minors.” F. at 50. Even on the that Massa- chusetts has demonstrated connection between outdoor advertising regulations pre- and its substantial interest in venting underage tailoring question tobacco use, re- through with Appeals to follow failed The Court
mains. countervailing interests. First Amendment analysis of the an use underage tobacco preventing interest The State’s less true compelling, but it is no even substantial, and legal is a activ- products adults of tobacco sale and use and manufac- retailers ity. consider must We *33 information conveying truthful in interest have an turers correspond- have a products adults, and adults to their about about tobacco receiving information ing truthful in interest speech In- on the involving indecent products. In case a pro- in governmental interest explained that “the we ternet justify does not ... materials tecting from harmful children to speech addressed unnecessarily suppression broad an S. Union, U. Liberties American Civil Reno v. adults.” omitted). (citations e.g., Bolger v. See, (1997) 844, 875 (“The Corp., 463 U. S. Youngs Drug Products (1983) 60, 74 lim- simply cannot be reaching mailbox of discourse a level sandbox”); Butler a be suitable for which would ited to that (“The of this incidence Michigan, 352 U. S. (1957) 380, 383 reading to population ... the adult is reduce enactment children”). protects chil- As the State only is what fit advertisements, manufacturers from tobacco dren protected a have their consumers still adult retailers and Liberties Cf. Civil in communication. American interest concurring judg- in supra, Union, at (O’Connor, J., 886-889 (discussing creation dissenting part) part ment Internet). on the of “adult zones” advertising instances, Massachusetts’ outdoor In some on burdens impose particularly onerous would Ap- disagree example, we with the Court speech. For cigar re- manufacturers and peals’ conclusion because advertising comparison a limited amount of conduct tailers cigar adver- products, lack of “the relative other tobacco cigar imposed on advertis- tising also means that burden some correspondingly 3d, 49. If 218 F. small.” ers budgets, advertising use relatively small have retailers few avenues Attorney communication, then the General’s advertising regulations potentially place outdoor greater, not lesser, burden on those retailers’ speech. Furthermore, cigar products cigar the extent that advertising dif- fer from products, that of other tobacco that difference inquiry should inform into speech what restrictions are necessary.
In addition, retailer in may Massachusetts have no communicating passersby means of on the street it products sells tobacco because alternative forms of adver- newspapers, tisement, like do not pro- allow that retailer to pose an way instant in the that onsite advertis- transaction ing any does. The ban indoor that is visible from presents also problems outside in establishments like convenience unique stores, which have security concerns visibility that counsel in favor of full of the store from the outside. It is these sorts of considerations that Attor- ney incorporate General failed to regulatory into the scheme. *34 Attorney
We conclude that the General has failed to show advertising regulations that the outdoor for smokeless to- cigars bacco and are not more necessary extensive than to advance the State’s preventing substantial interest under- age tobacco use. urges that the Court Justice Stevens remand the for development case further of the factual rec- ord. Post, at 601-603. We believe inap- that a remand is propriate in these cases because the State ample oppor- had tunity (as develop respect record tailoring it had justify regulate its decision to advertising), and additional evidence would not alter the nature of the scheme before the Court. See Greater Orleans, New S., 527 U. at n. 6.
A careful calculation speech costs of a regulation does not mean that a State must demonstrate that there is legitimate no speech on incursion speech interests, reg- but a unduly ulation impinge cannot speaker’s ability propose a commercial transaction the adult listener’s opportunity to obtain products. information about After
reviewing regulations, find the advertising we outdoor purposes these cases insufficient calculation First Amendment.
C point-of-sale ad- indoor, Massachusetts has also restricted Advertising vertising cigars. for smokeless tobacco and “placed any cannot be lower than feet from the floor five retail establishment which is located within one thousand any playground. foot of” of Mass. radius school or 940 Code 22.06(5)(b) §§21.04(5)(b), Regs. The District Court Attorney provisions, concluding invalidated these provided regulating General had not a sufficient basis for advertising. Supp. indoor The 2d, 192-193, 84 F. at 195. Appeals 3d, Court of reversed. F. at 50-51. court explained: misgivings “We do have some about the effective- assumption ness of a restriction that is based on the frequently, minors feet not, under five tall will will less eye-level, [a] their find such raise view above but we range determination falls within that of reasonableness Attorney pass judgment.” which the General is best suited to Id., at 51. point-of-sale
We conclude that the steps fail both the third and fourth of the Central Hudson “ analysis. regulation ‘provides A cannot if be sustained it only support government’s pur- ineffective or remote for the ” pose,’ (quoting Hudson, S., 507 U. at 770 Central Edenfield, 564), S., 447 U. or if there is “little chance” that the restric- goal, Orleans, tion will advance the State’s Greater New (internal omitted). supra, quotation *35 at 193 marks As out- prevent using goal above, lined is to minors from State’s products activity by tobacco and to curb for that demand limiting youth exposure advertising. The 5-footrule does goal. not seem to advance all than that Not children are less certainly ability 5 feet and tall, those who are have the up surroundings. look take in their
567 By contrast post, to Justice at 604-605, we do Stevens, regulation not believe this can be construed regu- as a mere lation of conduct under United States O’Brien, v. 391 U. S. (1968). qualify regulation To as a of communicative governed action scrutiny outlined in O’Brien, the regulation State’s must be expression. unrelated to Texas Johnson, U. S. Pap’s See also Erie v. (plurality A. opinion). M., S., 529 U. at 289-296 Here, Mas- height sachusetts’ attempt restriction is an regulate di- rectly impact the communicative advertising. of indoor may target
Massachusetts wish to tobacco advertisements displays that children, entice candy much like floor-level displays in a store, convenience height but the blanket re- striction does not constitute goal. reasonable fit Appeals The recognized Court efficacy reg- questionable, ulation was “[i]n any but that, decided event, speech imposed by the burden provision on very lim- ited.” 218 3d, F. at 51. exception There is no de minimis speech for a tailoring justi- restriction that lacks sufficient fication. We conclude height that the restriction on the indoor is invalid under Central third Hudson’s prongs. and fourth
D Attorney The General promulgated also regu- number of lations that practices by sales cigarette, restrict smokeless cigar tobacco, manufacturers and Among retailers. other restrictions, bar the use of self-service displays require products placed out of of all reach consumers in a location only accessible salespersons. §§21.04(2)(c)-(d), Regs. Code of Mass. 22.06(2)(c)-(d) (2000). cigarette petitioners do not challenge practices regulations the sales pre-emption grounds. Brief for Petitioners Lorillard Tobacco et al. Co. 00-596, No. cigarette petitioners n. 2. Two of the (Brown Corporation & Williamson Tobacco and Lorillard To- petitioner Company), bacco U. S. Smokeless Tobacco Com- *36 the sales the practices cigar challenge pany, petitioners The on First Amendment cigar peti- grounds. regulations that sam- a tioners additionally challenge provision prohibits of or little cigars cigars. pling promotional giveaways 22.06(l)(a) (2000). § of Mass. Code Regs. The District concluded that these restrictions Court impli- F. interest, 2d, 195-196, cate no cognizable speech Supp. but the of did not that Court adopt reasoning. Appeals fully The Court of that self-service displays recognized Appeals function,” “often do have some communicative commercial “is not on but noted that the restriction in the regulations but rather the location of actual tobacco speech, physical that noth- 3d, 218 F. at 53. The court reasoned products.” in the would the ing regulations empty prevent display tobacco so as no actual tobacco containers, prod- product long uct was much like movie at a video store. displayed, jackets Ibid. With court the observed respect cigar products, that retailers allow access to those so traditionally products, the consumer make a selection on the basis a may number of the factors objective subjective including Ibid. Even aroma and feel cigars. assuming interest, however, court concluded speech regu- lations were tailored to serve State’s substan- narrowly tial interest mi- access tobacco preventing products by Id., nors. at 54. The court also noted that the restrictions Ibid. do establishments. apply adult-only Petitioners devoted little their to the sales briefing prac- tices our regulations, understanding limited we submissions. As accordingly parties’ read the tobacco retailers regulations, basically they require behind counters and cus- place products require tomers to have contact with a before salesperson they able to handle tobacco product. and smokeless tobacco contend petitioners in- “the same First Amendment that require principles of the outdoor indoor restrictions
validation require display invalidation of the regulations at issue in this Brief case.” for Petitioners Lorillard Tobacco Co. et al. in *37 00-596, No. at n. 7. also Reply See Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at cigar petitioners n. 7. The contend that self-service dis- plays cigars for prohibited cannot be because each brand of cigar is unique and customers traditionally sought have compare handle and cigars purchase. at the time of Brief for Petitioners Altadis U. A.S. Inc. et al. in 00-597, No. at Reply 23, 9;n. Brief for Petitioners Altadis U. S. A. Inc. et al. in No. p. 00-597, 10, n. 7. reject
We
these
Assuming
petitioners
contentions.
cognizable speech
have a
particular
interest
in a
means
displaying
products,
their
cf. Cincinnati v. Discovery
(1993) (distribution
Network, Inc.,
Massachusetts’ sales provisions regulate conduct may have a component, communicative but Massachu- regulate seeks to placement setts products of tobacco for reasons unrelated to the communication of ideas. See supra, O’Brien, at Pap’s 382. also See M.,A. 529 S.,U. (plurality opinion); id., at 310 concurring (Souter, J., part dissenting part); supra, Johnson, at 403. We conclude that the State has demonstrated substantial inter- est in preventing access to products tobacco by minors adopted has appropriately an narrow means advancing supra, that interest. O’Brien, See at 382. displays
Unattended products present tobacco oppor- an tunity proper age access without the required verification Thus, law. prohibits State self-service and other dis- plays that would allow an individual to prod- obtain tobacco ucts without direct salesperson. contact with a It is clear regulations open that the ample leave channels of communi- regulations cation. significantly do impede adult products. access tobacco Moreover, retailers have other in the interest speech means exercising any cognizable that vendors We presume of their products. presentation and dis- on open display, tobacco packaging empty may place is only as so that display actual long products play indi- there no forAs cigars, accessible sales personnel. exam- is unable to a customer in the cation that examination as so long ine a purchase, cigar prior a salesperson. through takes place list prohibition also Massachusetts’ 'The petitioners cigar they the regulations among and free giveaways sampling 940 Code See Amendment grounds. First challenge on. §22.06(1)(a) Petitioners Altadis Brief for (2000); Mass. Regs. in their no 00-597, at 2. At point Inc. et al. No. U. S. A. however, did cigar petitioners ator oral briefs argument, *38 re claim with Amendment their First the merits argue We decline regulation. and to the sampling giveaway spect ar briefed not sufficiently an that was to address issue Airlines, Inc. v. Northwest Court. before this See gued Williams County Kent, 510 U. S. v. (1994); 10 855, 366, n. States, Granfinanciera, United (1992); U. S. Nordberg, S. A. 38-40 U. S. withstand that the sales
We conclude practices regulations State The means chosen by Amendment scrutiny. First tobacco products to access to tailored are narrowly prevent alter- and leave to minors, open are unrelated expression, by about to information for avenues vendors convey native be- to and for would-be customers inspect products products fore purchase.
IV use, among particularly have observed that “tobacco We most sig- adolescents, the single poses perhaps children FDA States.” in the United threat health nificant to public Corp., Tobacco v. Brown & Williamson S., 161. 529 U. for the States it understandable From perspective, policy products from tobacco minors using attempt prevent of weighing where they capable reach an age before they potential themselves risks and benefits of use, other adult activities. Federal law, places however, lim- policy its on choices available States.
In these Congress cases, comprehensive enacted a scheme cigarette to address smoking and health in advertising and pre-empted regulation state advertising that at- tempts to address that concern, same respect even with youth. The First Amendment also constrains state efforts to limit advertising products, of tobacco long because so as the sale and use of tobacco is lawful for adults, the tobacco industry protected has a interest in communicating informa- products tion about its and adult customers have an interest in receiving that information.
To the extent that federal law and the First Amendment prohibit do not state action, States and localities remain free problem to eombat the of underage tobacco use appro- priate judgment means. of the United States Court of Appeals for the First Circuit is part therefore affirmed part, reversed and the cases are remanded for further proceedings opinion. with consistent this
It is so ordered. Justice Kennedy, whom Justice Scalia joins, concurring in part and in the concurring judgment.
The obvious overbreadth of the outdoor re strictions suffices to invalidate them part under the fourth *39 of the test in Central Hudson Corp. Gas & Elec. v. Public Serv. Comm'n N. Y, 447 U. S. As a result, in my view, there is no need to consider whether the restric satisfy part tions the third proposition of the test, a about which there is post, considerable doubt. Cf. at 583-584 concurring part in concurring (Thomas, J., and judgment). in required Neither are we to consider whether Central Hud son should be retained in the face of objec the substantial tions that post, can made it. See (opinion at 574-582 My J.). continuing concerns that Thomas, gives the test nonmisleading commercial protection truthful,
insufficient agreement expressing speech require me to refrain from part Hud- of Central application of the third the Court’s Island, 517 Liquormart, Rhode e.g., Inc. v. See, son. kh (1996) by joined (opinion J., S. 501-504 U. Stevens, JJ.). exception of Part Kennedy With the Ginsburg, join opinion I of the Court. B—1,then, III— concurring in concurring part in Thomas, Justice judgment. (with exception of Part join opinion I Court B—1) agree I that the Massachusetts because III— Ciga- pre-empted advertising regulations are the Federal § seq. Advertising 1831et Labeling Act, 15 U. S. C. rette agree disposition Amend- of the First I also with the Court’s here, and challenges regulations at issue to the other ment even the fail I view that the share Court’s Corp. scrutiny & Elec. Hudson Gas intermediate Central (1980). At Y, 447 S. 557 N. U. v. Public Serv. Comm’n of govern- I to believe that when time, the same continue suppress speech in order to ment seeks to restrict truthful scrutiny appropriate, whether conveys, the ideas it strict may speech question as “com- be characterized or not the Liquormart, Island, Inc. v. Rhode mercial.” See .W (1996) part concurring and con- J., U. S. (Thomas, advertising curring judgment). subject I would all of the they scrutiny would hold that vio- restrictions to strict the First Amendment. late
I regulation litigation At the heart of this is a Massachusetts prod- speech imposes sweeping about tobacco ban §21.04(5) (2000), gov- Regs. of Mass. which ucts. 940 Code 22.06(5), § cigarettes which tobacco, and erns and smokeless governs advertising, cigars, prohibit all indoor all outdoor point-of- advertising outdoors, and all that can be seen from outdoors) (even if from that is sale not visible
573 lower than five feet from the floor.1 These restrictions are superficially limited their geographic scope: They apply only “any within public 1,000 feet of playground, playground public park, area in a elementary secondary school or §21.04(5)(a). school.” Appeals But the Court of acknowl- edged prohibition that the zone of per- covers as much as 90 largest cent of the three cities Massachusetts, Consoli- (CA1 Cigar Corp. Reilly, 2000), dated v. 30, 218 F. 3d so practical effect is little different from total of ban. Playboy Cf. United States v. Group, Entertainment Inc., 529 (2000)(“The U. S. Government’s content-based bur- satisfy rigorous dens must scrutiny same as its content- bans”). based
Respondents suggest
passing
regulations
that the
“zoning-type restrictions” that should receive “the interme
scrutiny traditionally
diate level of
associated with various
place,
regulations.”
of ‘time,
forms
and manner’
Brief for
Respondents
We
upheld
31.
have
place,
indeed
time,
prohibited
manner
certain kinds of outdoor
signs,
e.g.,
City
see,
Angeles
Members
Council Los
v.
Taxpayers
(1984),
Vincent, 466
U. S.
and we have
similarly upheld zoning laws that had the effect
restricting
sexually
certain kinds
explicit expression,
g.,
e.
see,
Ren
Playtime
(1986).
ton v.
Theatres, Inc.,
1Other regulations prohibit the sale of products tobacco “in any manner direct, than in other face-to-face exchange,” forbid displays, self-service require products be accessible only store personnel. §§21.04(2)(a), (c)-(d), (c)-(d). See §§22.06(2)(a), addition, In they prohibit 22.06(1). sampling promotional giveaways. §§21.04(1), See I agree ante, Court, 567-570, see regulations, that these which govern conduct rather expression, upheld than should under the test of United O’Brien, States 367'(1968). 391 U. S. *41 but simply signs, of the any by conveyed the message
press Likewise, of visual clutter. effect esthetic to minimize but at in Renton not at expression, was aimed ordinance adult businesses. caused by effects” “secondary Massachusetts different. are very here The regulations ad tobacco effects” “secondary with any concerned not is ef primary advertising’s with the is concerned vertising —it advertisements view the those who induce is to fect, which Barry, Cf. Boos v. products. use tobacco to purchase to (“Listeners’ (1988) speech reactions 312, 321 U. 485 S. in Ren to we referred effects’ ‘secondary type ton”). about speech it words, seeks suppress In other We of that speech. to the content it because objects content- to such strict scrutiny applied have consistently g., Turner Broadcast See, e. of speech. based regulations FCC, System, ing Inc. v. 622, 641-643 U. 512 S.
A declined give Court when this a time was once There In commercial speech. Amendment protection First any Chrestensen, went (1942), the 52 Court Valentine U. S. 316 v. restraint [no] Constitution imposes that “the far to say so as advertising.” commercial as respects purely on government Bd. Virginia Id., at 54. was That position repudiated Council, Inc., 425 Pharmacy Virginia Consumer Citizens v. “which even speech (1976), which explained U. S. is transaction’” a commercial more than does ‘no propose Id., 762 (quoting Amendment. the First by protected Re Pittsburgh Human Comm’n Pittsburgh Press Co. has lations, 413 U. S. (1973)). then, the Court Since 376, 385 uncertainty being course —much an uncertain followed test balancing of the four-part the malleability generated Liquormart, 517 U. at 520- S., Hudson. of Central See concurring J., concurring part (Thomas, judgment).
I have previously observed “philosophical there is no or historical asserting basis for speech ‘commercial’ of ‘lower value’ than speech.” ‘noncommercial’ Id., at 522. I Indeed, doubt it possible whether is even a co- draw herent distinction between commercial and noncommercial speech. id., See at 523, 4n. (citing Kozinski Banner, & Who’s Afraid Speech, of Commercial 76 Va. L. Rev. 627 (1990)).2
It should be clear that
if these
targeted any-
thing other than advertising
products
for commercial
if, for—
*42
example, they were directed at billboards promoting political
candidates—all
agree
would
that the restrictions should be
subjected to
scrutiny.
strict
In my view, an
gov-
asserted
keeping
ernment interest in
people ignorant by suppressing
expression
per
“is
illegitimate
se
and can
justify
no more
regulation of
speech
‘commercial’
justify
than it can
regula-
tion
speech.”
of ‘noncoinmercial’
B if accepts Even premise one that speech commercial generally is entitled to a lower level of protec- constitutional tion than are speech, other forms it does not follow that here deserve anything less than strict scru- tiny. Although we recognized have categories several 2Tobacco provides a good illustration. The sale of tobacco products is the subject of political considerable controversy, and not sur some prisingly, tobacco advertisements both promote product and take a stand in this political debate. See Brief for National Association of Con venience Stores as Amicus Curiae 20-22. A recent cigarette advertise ment, for example, a brand displayed logo next to text “Why reading, do politicians smoke cigars while taxing cigarettes?” App. to Brief for National Association of Convenience Stores as Amicus Curiae 2a. pro normally First Amendment speech receive reduced have protection all, at we or no Amendment tection, First speech within may regulate government that the never held way we have any Rather, categories in that it wishes. those consistently with thé speech can, “that these areas said constitu regulated their because Amendment, First Paul, 505 tionally proscribable R. A. V. St. content.” category speech falls into a Even when 377, 383 U. S. may government protection, the of reduced constitutional unrelated engage for reasons discrimination not content speech place it within of the to those characteristics (because may obscenity example, city category. For ban e.g., unprotected category, Roth v. obscenity see, is an (1957)), “only may ban but it States, 354 S. 476 United U. city legally that contain criticism those obscene works supra, government.” V, R. at 384. A. speech explaining between commercial
In the distinction speech, emphasized commer- other forms of we have speech easily its dissemina- is both “more cial verifiable regulation.” by proper likely to tor” and less be “chilled Virginia characteristics Bd., n. 24. These S.,U. *43 speech, that, led to in the commercial us conclude context of necessary for fear it is to tolerate statements “less inaccurate “appro- silencing speaker,” it is more of and also that message priate require appear in a such that commercial warnings, and information, form, or include such additional being deceptive.” necessary prevent as its disclaimers, reasoning, validity limited it is Ibid. Whatever the this speech peculiarly commercial to the commercial harms that misleading deceptive adver- e., can risk of threaten —i. tising. As in R. we observed A. V: price advertising
“[A] may regulate choose to State industry others, one (one not in risk fraud because the but jus- speech that
of the characteristics of commercial protection) depriving tifies it of full First Amendment prohibit greater may its view there. But State
577 only that commercial depicts men in a demeaning (citations fashion.” 505 S.,U. at 388-389 omitted).
In Liquormart, several 44 Members of the Court said much the thing: same
“[W]hen a entirely prohibits State dissemination truthful, nonmisleading messages commercial rea- for sons preservation unrelated to the bargain- of a fair ing process, there is far less reason depart from rigorous review that the First generally Amendment demands.” (opinion at S.,U. of Stevens, J., Kennedy joined by JJ.). and Ginsburg, power Whatever may the State regulate have to commercial speech, may it power not use that to limit the content of speech, commercial as it has done here, “for reasons unre- lated to the preservation of a fair bargaining process.” Such content-discriminatory regulation all other content- —like regulation speech based subjected to strict —must scrutiny.
C In an implications effort avoid the princi of these basic ples of First Amendment respondents law, make two princi pal claims. they argue First, regulations target de ceptive and misleading speech. See Respondents Brief for (“Petitioners’ advertising clearly engenders potential ‘the deception for or confusion’that regulation allows for com speech mercial based on its content” (quoting Bolger Youngs Drug Corp., (1983))). Products 463 U. 60, 65 S. Sec they ond, argue that the speech restrict pro illegal motes an e., transaction —i the sale of tobacco to mi (“The nors. See Brief Respondents regulations . . . exhibit a close connection to a commercial transaction the *44 prohibited”). State has theory
Neither properly is before the pur- Court. For poses summary judgment, respondents were willing to as- 578 here at issue advertisements “that the tobacco
sume activity.” 218 a lawful nonmisleading speech about truthful, they that claim respondents now Although 43. 3d, at F. Respondents 35, point, Brief see this not conceded have theories urge their they not did remains 17, the fact n. argu- general, do not consider we courts, and lower the See, below. presented not that were for affirmance ments (2001). 205 531 U. S. States, g.,e. Glover United clearly easy one case, this an make should These concessions by New Orleans Liquormart and Greater controlled States, U. S. Broadcasting Assn., v. United Inc. entertain these we were events, even if At all persuasive. is arguments, neither advertising mislead- is suggest
Respondents that tobacco ubiquity” imagery . . . sheer ing youthful “its because is desirable use to believe “that children leads Brief for also Respondents 33; see pervasive.” Brief for (“[S]omany lack children as Curiae Amicus United States ap- industry’s the tobacco maturity judgment to resist jus- independence”). This glamour, peals excitement, overinclusivity sweeping by the however, belied, tification nothing tar- has done regulations. Massachusetts appealing to “excite- prohibition get to advertisements its applies glamour, independence”; ban ment, servility. appeals homeliness, and torpor, equal force to depicted “youthful imagery”; on smokers It not focused has buildings may play than no more shuffleboard sides of they may ride skateboards. accurately prohibit from stat- a store even display cigarettes a Such
ing
prices at
are sold.
which
accepts misleading,
one
possibly
unless
could
simple
of tobacco
apparent
existence
view that the
State’s
believing that tobacco
people into
advertisements misleads
actually
misun-
State
pervasive
is. The
than it
more
use is
product
Promoting
advertising.
purpose of
derstands
(or
yet
is not
yet pervasively used
cause
is not
*45
widely supported)
a primary
purpose of advertising. To-
bacco advertisements would be no more misleading
sug-
for
pervasive
gesting
use
products
of tobacco
any
than are
other
advertisements that attempt
expand
to
a market for prod-
rally
uct, or to
support
political
Any
movement.
infer-
ence from the advertisements that businesses would like for
pervasive
tobacco
use
be
is entirely reasonable, and adver-
tising
gives
rise to that inference is in way
no
deceptive.
The State also contends that tobacco
may
advertisements
be restricted
they
because
propose
illegal
an
sale of tobacco
to minors. A direct solicitation of unlawful activity may of
course be proscribed, whether or not it is commercial in na-
ture. See Brandenburg v. Ohio,
(1969)
Viewed as an proscribe effort solicitation to unlawful conduct, these clearly fail the Brandenburg test. A may State proscribe “forbid or advocacy of the use of force or of law except violation where such advocacy is di- rected to inciting or producing imminent lawless action is likely to incite produce or such action.” Brandenburg, supra, at 447. Even if Massachusetts prohibit could adver- reading, tisements “Hey buy kids, cigarettes here,” these regulations sweep much more broadly than They that. “any cover ... statement representation ... the purpose or effect of promote which is to the use or sale” of tobacco products, whether or not the directly statement is or indi- §21.03 Regs. of Mass. Code minors. rectly addressed may theory, all respondents’ On legally act may not viewers its some because limited it. *46 that would rule to point stopping any to see difficult It is activity in of an in speech favor prohibit all to a State allow Presumably, engage. to for minors illegal is it which its enforce to effort in an advertisements ban car could State regulate adver- driving. It could underage restrictions children because vote, to people urging tisements re- General although the Solicitor And, vote. permitted to 55- Arg. of Oral theory, Tr. see implication of her this sisted busi- adult for prohibit advertisements could State 56, the patronize. to are forbidden children nesses, which premise on the theory rests respondents’ bottom, At to State empower the enough to is solicitation indirect an ad put it, an even petitioners that, as speech, and regulate who any give children “will at adults directed vertisement be must wrong and therefore idea see it happen to may Loril Petitioners Brief public view.” from suppressed is view p. 36. This 00-596, in No. et al. Co. Tobacco lard incite “Every an is idea Amendment. foreign First to the (Holmes, (1925) 268 S. York, U. Newv. ment,” Gitlow 652, 673 it suppressed whenever may be speech if dissenting), and J., no is unlawfully, there then act to inspire someone might Booksell American power. Cf. censorial the State’s to limit (CA7 1985), aff’d, 2d 323 Hudnut, 771 F. Assn., Inc. v. ers S. 1001 475 U. if Even argument. the State’s deeper flaw is a
There speech di- regulating interest a valid has Massachusetts easily mis- may more argues, be who, it at rected children— unlawful— products sale of whom the to led, free expense interest pursue that may not it rights of adults. speech in order limited should public debate theory that pedi- long historical ahas children impressionable protect
581 gree: Socrates was condemned for “a being doer of evil, inas- much as he corrupts youth.” Dialogues Plato, Apol- (B. ogy Jowett transí., 4th 1953). ed. But the theory has met with a less enthusiastic reception in this Court than it did the Athenian In assembly. Butler v. Michigan, U. S. 380 (1957), we struck down a statute restricting “ sale of materials ‘tending incite minors to violent or de- ” praved or immoral acts.’ Id., at 381 (quoting then Mich. Penal 343). § Code The effect of the law, we observed, was “to reduce the adult population of Michigan reading only what is fit for children.” S.,U. at 383. As Justice Frankfurter colorfully put it, “Surely, this is to burn the house to roast the Ibid. pig.”
We have held consistently that speech “cannot be sup
pressed
solely
protect
from
young
ideas or
images
a legislative body thinks unsuitable for them.” Erznoznik
*47
v. Jacksonville,
Outside of the broadcasting context, we have adhered to the view that “the governmental interest chil- protecting dren from harmful materials” does not “justify an unneces- sarily broad suppression of speech addressed to adults.” Reno, supra, at 875; see also Playboy Entertainment, U. S.) (“[Tjhe at 814 objective of shielding children does not ac- can be if protection ban a blanket suffice support alternative”). Massachu- restrictive a less by complished simply scrutiny strict the application not avoid may setts children. it seeks protect because
I I saved be ban may advertising scrutiny, strict Under gov- a compelling tailored promote it is narrowly if only e.g., interest id., If that at 813. See, interest. ernment restrictive less is that alternative an served by could be instead. alternative that use must the State then speech, standard, supra, this ibid.; Reno, 874. Applying See fail. must here A in reducing interest a compelling asserts Massachusetts interest adults, an minors. Applied use among ignorant people keeping choices market manipulating supra, See alone compelling. let legitimate, would interest ais compelling there that assuming at 575. But on outdoor the ban that smoking, in reducing underage the same I doubt interest, this advertising promotes feet. five below on the ban point-of-sale true of 22.06(5)(b) (2000). §§21.04(5)(b), of Mass. Regs. 940 Code See misgivings “some to having admitted of Appeals The Court is based of a restriction effectiveness about will not, or will feet tall five under minors assumption 3d, F. *48 their view above eye-level,” raise less frequently, have produced have, since respondents it at as well might assumption. counterintuitive this evidence no support taller are see objects can short children even Obviously old, are 12V2 years the time they by are. Anyway, than they feet five are over the median boy median both the girl Prevention, Control for Disease Centers U. S. See tall. to believe reason there is no (2000). Thus, Charts Growth from minors to protect does anything this regulation exposure to tobacco advertising.3 Far from serving a com- pelling interest, the ban on displays below five feet seems to lack even a minimally rational relationship any conceiv- able interest.
There is also considerable reason to doubt that the restric-
tions
cigar
on
and smokeless tobacco outdoor advertising
promote any state interest. Outdoor advertising for cigars,
all,
after
virtually
is
Cigar
nonexistent.
makers use no bill-
boards in Massachusetts, and in fact their nationwide out-
door advertising budget is only about
per year.
$50,000
See
3This is not to say that the regulation does nothing at all. As the Court ante, points out, see security concerns require that convenience stores be designed so that the interior of the store is visible from the street. See also Occupational Safety and Health Administration, Recom mendations for Workplace Violence Prevention Programs in Late-Night Retail (1998) (“Shelves Establishments should be low enough to assure good visibility throughout store”). §21.04(5)(b) ban on displays below five feet §21.04(5)(a) and the ban on displays visible from outside store, combined with these security concerns, would prevent many convenience stores from displaying any tobacco products at all. Thus, despite the State’s disclaimers, see Brief for (“The Respondents 30 State, quite clearly, is not trying to suppress altogether the communication of product information interested consumers”), the restrictions effectively produce a total ban. *49 lifestyle “cigar movies,” and smoking in cigar surgence of Cancer National ‘Cigar Aficionado.’” as magazines such and Smoking Trends, Effects Cigars: Health Institute, (1998), Record, pp. 14-15 Monograph No. Control Tobacco acknowledges candidly report Exh. 67. No. Doc. character- better is needed “[additional information that extent learn cigars” “to marketing for efforts ize cigars reaches . . . for promotion advertising and which respondents words, other In Id., 216-217. at kids.” affects advertising cigar on ban that a no evidence adduced have interest. asserted promote their anything to will do re- Here tobacco. of smokeless true the same is Much late in the that, evidence on primary reliance place spondents its Company increased Tobacco S. Smokeless 1960’s,the U. See males. young targeted at advertising through sales nothing to does But this n. 19. Respondents 39, Brief today. problem a affecting is minors that show find- Drug Administration’s Food invokes The Court its report based it cites but the ante, 559-560, ings, see use in the large increase “very the observed conclusions Fed. people.” by young products tobacco of smokeless one contradicted is premise This Reg. steady de- large, reports a studies, which respondents’ own high among Massachusetts use in smokeless crease This App. 292. during 1990’s. See students school interest State’s whether the doubt on finding some casts importantly, compelling. More truly regulation is additional has high students school smoking among because re- indicates ibid., it see trend, such exhibited to- and smokeless aggregate cigarettes spondents’ effort misguided. is bacco
B advance assuming any case, even In because struck down they must interest, compelling state see correct, The Court narrowly tailored. they are not arbitrary demon- radius 1,000-foot 561-563, ante, at *50 strates a lack of tailoring, narrow problem but the goes deeper prohibited than that. A zone solely defined by cir- cles drawn around schools and playgrounds is necessarily regardless overinclusive, of the radii of the circles. Con- sider, example, for a billboard located 1,000 within feet of a school but only visible from an freeway elevated that runs nearby. Such a billboard would not any threaten of the in- respondents terests assert, but it would be banned anyway, because the take no account of whether the ad- vertisement could even be by seen prohibited children. The zone is even suspect more where, as here, it includes all but percent area largest three cities in the State. tailoring loose of the advertising ban displayed only in its geographic scope but also the nature of the advertisements it affects. The regulations define “adver- very tisement” broadly; the term any includes “written . . . statement representation, by” made person a who sells products, tobacco purpose “the or effect of pro- which is to mote the use or product.” sale of the 940 Code of Mass. § Regs. 21.03 everything Almost a business does has the purpose of promoting the sale of products, its so this definition would anything cover a tobacco might retailer say. prohibited Some speech would not be even commercial. aIf displayed store sign a promoting a candidate for Attor- ney General promised who had repeal to regula- tobacco tions if it probably elected, would be doing so with the long- purpose term of promoting sales, display and the of such a sign illegal. would be if Even definition “advertisement” were read more narrowly require as so specific reference to prod- ucts, it still would have Draconian effects. It would, for ex- ample, prohibit a tobacconist from displaying sign reading Cigar “Joe’s Shop.” The effect of this rule is not to make cigars impossible to find; retailers are after all allowed to display a 576-square-inch sign black-and-white reading “To- bacco §22.06(6). Products Sold Here.” Rather, it is to difficult identify more retailers individual cigar make no assert Respondents names. their them change making to con- difficult it is anonymity, retailer interest cigar said be could this rule to which interest other ceive any tailored. narrowly an narrow tailoring inquiry fail the The regulations examining addition In reason. more fundamental other, examined have should ban, the State a narrower limiting do not require its interest of advancing ways alternatives. had several Here, all. respondents speech con have directly regulated could they Most obviously, *51 g., Rubin See, e. v. concerned. were duct with which they Brewing (invalidat (1995) Co., 514 Coors 490-491 S.U. in labels, on beer content alcohol of on disclosure ban ing alterna have pursued could the Government because part beers”); of alcohol content as limiting such “directly tives Liquormart, 517 J., concur (Thomas, 524 S.,U. see also (“[I]t would seem in judgment) in and concurring ring part (or restricting otherwise ... a product that banning directly as be at least virtually always would ways) its sale specific restricting as merely consumption effective discouraging the sale already prohibits Massachusetts advertising”). that to enforce take minors, steps but it could to tobacco laws It also could enact pro more vigorously. prohibition mi tobacco or use of the purchase, possession, hibiting commu advertising is that tobacco And, if its concern nors. seek to could it it with which disagrees, message nicates not enforced with “more speech, counteract message Whitney (1927) California, 274 U. S. silence,” (Brandeis, J., concurring).
Ill of respondents of the arguments many Underlying gene- sui amici is the some sense is in tobacco idea that their other regula- unlike object any it so ris —that is so special, Amendment principles First normal tion, application g., e. See, Respondents Brief should suspended. (referring to tobacco use as “one of the State’s—and indeed urgent Nation’s—most problems”); Brief for United States as Amicus Curiae 19-20 (cataloging prevalence use); the effects of tobacco Brief for American Medical Association et al. as Amici Curiae 24 (advocating “the au- thority governments protect to children from uniquely dangerous messages”). poses Smoking serious health risks, and advertising may (who induce children lack the judgment intelligent make an smoke) decision about whether to begin smoking, which can lead addiction. The State’s as- sessment urgency of the problem posed by tobacco is policy judgment, it and is not this place Court’s to second- guess it. Nevertheless, it seems appropriate point out uphold that to the Massachusetts would accept be to a line reasoning permit would restric- tions for a host products. of other
Tobacco use is, we are told, “the single leading cause of preventable death the United States.” Brief for United States as Amicus Curiae 19. The largest second contribu tor to mortality rates in the United obesity. States is Koplan & Dietz, Caloric Imbalance and Public Policy, Health 282 JAMA 1579 It is associated with increased inci *52 dence hypertension, diabetes, and coronary artery disease, ibid., represents and it public a problem health rapidly that is growing worse. See Mokdad et al., Spread The of the Obe sity Epidemic in the United States, 1991-1998,282 JAMA (1999). 1519 Although growth obesity over the last few decades has had many significant causes, a has factor been availability increased of large quantities of high- high-fat calorie, foods.' See Hill, Environmental Contribu tions Obesity to the Epidemic, (1998). 280 Science 1871 foods, Such of course, have been aggressively marketed and promoted by fast companies. food See Nestle & Jacobson, Halting Obesity Epidemic, U. S. Dept. of Health and Human Services, 115 (2000). Reports Public Health 12, 18
588 covertly companies say
Respondents tar- that tobacco companies do advertising. Fast food in geting children their Toy Another e.g., McB’s Steals openly. Kramer, See, so (describing p. 1 Advertising Age, 15, 1999, BK, from Nov. Choice campaign); Lucas, BK Takes promotional McDonald’s (describing p. 4 1998, Message Adweek, Kids, June there is campaign). Moreover, promotional Burger King in they been successful have evidence that considerable & eating See Borzekowski changing behavior. children’s 42 Assn. Am. Dietetic 101J. Effect, The 30-Second Robinson, (2001); Nelson, Television’s Patterson, Nader, & Taras, Sallis, Activity, Physical 10 J. on Children’s Diet Influence (1989). advertis- 176 effect Pediatrics Dev. & Behav. eating significant two reasons. is ing habits on children’s problem its in obesity a serious health First, is childhood Overweight Ad- Flegal, right. & Children Troiano own (1998). eating pref- Pediatrics Second, olescents, persist in adulthood. in childhood tend erences formed Among Development Eating Behaviors Fisher, Birch & (1998). So 101 Pediatrics Adolescents, Children way to- though the same even food is addictive fast exposure can have to fast food children’s is, bacco consequences are difficult to reverse. deleterious pre- largest example, cause the third To take another is alcohol. McGinnis& in the States ventable deaths United States, the United Foege, Causes of Death Actual (1993). with tens use is associated Alcohol 2207,2208 JAMA digestive year from cancers of deaths each of thousands alcohol use Id., And victims of 2208-2209. diseases. In over to those drink alcohol. are not limited who in- people were people 321,000 and over 17,000 killed, were Dept, of jured, Jus- car accidents. U. S. alcohol-related year, in- Each alcohol tice, and Crime 13 Alcohol *53 including almost crimes,. million volved several violent at Id., 3-4. 200,000sexual assaults.
Although every prohibits State the sale of alcohol to those age under 21, much alcohol advertising is by viewed children. Federal Trade Commission, J. Evans & Kelly, R. Self- Regulation in the Industry 1999); Alcohol (Sept. Grube & Wallack, Television Beer Advertising and Drinking Knowl- edge, Beliefs, arid Intentions among Schoolchildren, 84 Am. (1994). J. Pub. Health 254 Not surprisingly, there is consid- erable exposure evidence that to alcohol advertising is asso- underage ciated with drinking. See Atkin, Survey and Ex- perimental Research on Effects of Alcohol Advertising, in The Effects of the Mass Media on the Use and Abuse of Alco- (S. hol 39 1995); Martin ed. Madden & Grube, Frequency and Nature of Alcohol and TobaccoAdvertising in Televised Sports, through 1992,84 Am. (1994). J. Pub. Health 297 underage
Like underage use, drinking has effects cannot undone later life. Those begin who drink ing early are much likely more .dependent become on alco hol. Indeed, the probability of lifetime dependence alcohol decreases approximately percent with each additional year age at which alcohol is first used. Grant & Dawson, Age at Onset of Alcohol Use and its Association with DSM-IV Alcohol Abuse Dependence, 9 J. Substance Abuse 103, 108 obviously And the effects of under age drinking are irreversible nearly for the 1,700Americans year killed each teenage drunk drivers. See National Highway Safety Traffic Administration, 1998 Youth Fatal Crash and Alcohol Facts.
Respondents have identified no principle logic law or preclude would imposition of restrictions on fast food and alcohol advértising similar to those they seek to impose on tobacco advertising. Cf. Tr. of Arg. Oral 56-57. they effect, In seek exception “vice” to the First Amend ment. No exception such exists. See Liquormart, 517 S.,U. (opinion 513-514 joined J., by Ken Stevens, JJ.). and Ginsburg, If it did, it would have nedy, Thomas, almost no limit, “any product poses some threat *54 be character- reasonably morals or might health public
public ” Id., activity.’ to Vice as relating a state legislature ized by by unaccompanied that is label “a ‘vice’ That why 514. behavior the commercial against prohibition corresponding for regu- justification principled fails provide at issue Ibid. activity.” about commercial speech of lation an about to restrict speech ever sought has No legislature for Calls and inoffensive. as harmless it regarded activity the specter when made are always limits on expression harm of the The identity is looming. harm threatened some totalitarian dogmas by will inspired People vary may racial inflamed will be They the Republic. subvert and will Or they and hatred bigotry. and embrace demagoguery smoke, choose and advertisements be enticed by State for the no answer therefore It is disease. risking harm: perhaps are doing makers cigarettes say from no different are they that respect But in are. they advocates or the harmful products, of other the purveyors them, they silence seeks to the State When ideas. harmful Amendment. the First protection all entitled in dissenting in and part Souter, concurring Justice part. III-C, III-B-1, III-A, II-D, I, II-C,
I Parts join I of the Part opinion I join Court’s opinion. III-D in the concurring in part, Stevens concurring of Justice I dis- in respectfully dissenting part. in part, judgment like Court, and of the of the III-B-2 opinion from Part sent constitu- trial on remand would Stevens Justice limit. 1,000-foot tionality Ginsburg whom Justice Stevens,
Justice Breyer Souter joins Justice with whom join, Justice in the judgment concurring I, part, concurring to Part as and dissenting part. part, first— The of issues. sets two separate This suit presents second— straightforward. involving pre-emption —is involving the First complex. Amendment—is more Because I strongly disagree with the Court’s conclusion that Cigarette Federal Labeling and Advertising Act of (FCLAA Act), § U. C. seq., S. 1331 et pre- as amended, cludes States and localities from regulating the location of cigarette advertising, I dissent from Parts II-A and II-B *55 of opinion. the Court’s On the First questions, Amendment agree I with the Court both that the outdoor advertising restrictions imposed by Massachusetts legitimate serve important state interests and that the record does not indi- cate that the measures were properly tailored to serve those interests. Because the present record does not enable us to adjudicate the merits of those claims on summary judgment, I would vacate the decision upholding those restrictions and remand for trial the constitutionality of the outdoor ad- vertising regulations. Finally, because I do not believe that point-of-sale either the advertising restrictions or the sales practice implicate restrictions significant First Amendment concerns, I uphold would them their entirety.
I As themajority acknowledges, ante, at 541-542, under prevailing principles, any examination of scope the pre of a “ emption provision must ‘start with assumption that the police powers historic of the [are] States not super to be seded .. . Federal Act [is] unless that the clear and mani purpose fest Congress.’” of Cipollone Liggett v. Group, Inc., (1992) 505 U. S. 504, 516 (quoting Rice v. Santa Fe Ele vator Corp., 331 U. (1947)); 218, 230 S. see g., also, e. Califor nia Div. Labor Standards of Dillingham v. Enforcement Constr., N. A., Inc., 519 U. S. (1997); 316, 325 Medtronic, Inc. Lohr, v. 518 U. S. 475 As at issue in this implicate suit powers two that lie at the heart of the States’ police traditional power power regu —the late land usage power and the protect the health and safety of precedents minors—our require that the Court con strue pre-emption provision “narrow[ly].” Id., at 485; intent If 518. S., Congress’ at U. also Cipollone,
see is ambiguous, of regulation category a particular pre-empt pre-empted.1 such regulations be viewed must provision of the pre-emption text structure, history, to the attention context, paid with proper it in which appears. scheme the regulatory and purpose York State 484-486; New S., at Medtronic, U. See, e. g., Travelers Plans Shield Blue& Blue Cross Conference S., 505 U. (1995); Cipollone, 645, 655-656 Co., U. S. Ins. ante, at 542.2 accord, 27; n. 519-520, 529, 513-515, must provision a pre-emption scope assessment An which inway understanding to a “reasoned effect give surrounding regula- and its the statute intended Congress law.” consumers, and business, to affect scheme tory Medtronic, 518 U. S., at 486. con- to the leads inexorably task, performed, properly
This state not intend pre-empt did clusion Congress when of cigarette location local regulations *56 1965 In both suit. in this issue the provision it adopted itsof regulatory clear the made purposes and Congress 1 Paul, Growers, U. S. 373 Inc. v. Avocado Lime & g., Florida See, e. legislated (“[W]e Congress that (1963) conclude not to 132, 146-147 unambiguous of an in the absence ... statute [state] this the ouster of (Black S., at 533 effect”); U. Cipollone, to mandate congressional concur JJ., concurring part, Kennedy in J., Souter, and mun, joined by (“The fed of principles dissenting part) part, ring judgment Court’s the underlie sovereignty for state respect eralism directly spoken Congress has not where pre-emption find to reluctance though spoken, Congress has force where equal apply the issue with to in Congress is not whether cases, question the In such ambiguously. not, ab We do to what extent. but regulation, to state pre-empt tended beyond evidence, pre-emption a scope infer unambiguous sent deleted)). (emphasis language” by Congress’ clearly is mandated which Commissioner, 2d 159 F. Trust Co. Hanover Bank & Cf. Central misappre (“There to 1947) (L. J.) likely way (CA2 more Hand, is no statute, a will or constitution, a a it in language meaning the hend —be which object forgetting literally, to read the words a contract —than secure”). a whole is meant document as endeavor, explaining precision with policies the federal moti- vating its actions. According to the Congress Acts, adopted “comprehensive Program Federal to deal with cigarette labeling and advertising respect to any relationship be- smoking tween (1) and health,” for two reasons: to inform public that smoking may be (2) hazardous to health and to ensure that commerce and the economy interstate not be “impeded by diverse, nonuniform, and confusing cigarette la- beling regulations with respect any rela- tionship between smoking and § health.” 15 U. S. C. 1331. In order to serve the purpose second it necessary was pre-empt regulation state of the content of cigarette both labels cigarette advertising. If one required State particular inclusion aof warning on the package cigarettes while another State demanded a different ciga- formulation, rette manufacturers would have been forced into the difficult and costly practice of producing different packaging for use in different States. To foreclose the waste of resources that be would patchwork entailed such regulatory system, Congress expressly precluded regulators other requir- from ing placement cigarette packaging any “statement relating to smoking §1334(a). and health.” Similar con- applied cerns cigarette advertising. If regula- different tory required bodies that different warnings or statements used when manufacturers prod- advertised their ucts, layout text and a company’s ads would have had to differ from locale to locale. resulting costs would have come with little or no health benefit. given Moreover, the nature of publishing, might it well have been the cáse *57 cigarette companies would not have been able to adver- tise in publications national without violating the laws of jurisdictions. some response In to these Congress concerns, adopted parallel provision pre-empting state reg- and local requiring ulations cigarette inclusion in any of relating “statement smoking (1970 § 1334(b) and health.” ed.) (amended 1970).
594 or with state to interfere need no however, was,
There limitations prescribing other or zoning laws local prohibiting Laws or billboards. signs on location the in a school near hanging a billboard from company cigarette hanging permitting laws way with conflict no in Boston such would jurisdictions. Nor in other a billboard of such on burden administrative significant impose a even laws im- localities majority of great advertisers, as would-be advertis- requiring signage, thus on general pose restrictions or signs posting whether before law local to examine ers N. Y. Greater See pre-empted. laws cigarette-specific 100, Giuliani, F. 3d 195 Council, v. Inc. Metropolitan Food on the zoning 1999) restrictions (CA2 (“Divergent local of the commonplacefeature advertising are a sign location always have cigarette advertisers landscape and national them”). unsurprising it is Hence, to observe bound been Act the 1965 any provision not include Congress did restrictions. location pre-empting (1969 Smoking of 1969 Act Cigarette Public Health changes important in the Act), two made §2, 84 Stat. applicability of limited First, it provision. pre-emption paving localities, advertising prong to States advertising. cigarette regulation of way for federal further advertis- scope § expanded the it Second, 4. FCLAA, were previously States Where provision. ing pre-emption particular requiring statements prohibited from they henceforth would concerns, on health advertising based prohibi- any “requirement imposing prohibited from respect to the smoking . health . . tion based 5(b), § C. 15 U. S. cigarettes. promotion” advertising or 1334(b).3 § (1992), held we Inc., S. 505 U. Group, Liggett Cipollone In after was that language change this consequences
that one actions. common-law some pre-empts the statute *58 Ripped provision from context, its theoretically this could breathtaking expansion read aas of the limitations im- posed by the 1965 Act. precedents However, both our and require common sense statutory provisions us to read and,— particular, pre-emption clauses—in the context of both neighboring provisions their history and of the purpose statutory of the swpra, scheme. See at 592. When so quite viewed, it is clear that the 1969 in- amendments were expand tended provision to the capture set narrow of regulations content escaped would pre-emption have prior provision, under the fundamentally not to reorder the regulatory authority division of between the Federal State Governments. signs point
All inescapably to Congress the conclusion that only pre-empt regulations intended content in the 1969 importance Act. It is of crucial making that, in modifica- pre-emption provision, tions the Congress did not alter laying the statement policies out the provision federal the § was intended to serve. day, See U. S. C. 1331. To this (1) policies federal stated in this area are to inform the public (2) dangers of the smoking protect cigarette companies from the confusing burdens of contradictory state of their labels and advertise- ments. provision See ibid. retention of this un- changed strong only evidence Congress’ intention in expanding pre-emption capture clause towas forms of regulation content through that had fallen cracks prior provision example, prohibiting ciga- state laws —for rette making particular manufacturers from claims in their requiring or specified them layouts utilize particular graphics include marketing.4 their Because nature magazine distribution, publishing and it is that a conceivable State or locality might cause kind of regulatory statute prevent confusion the was drafted to by adopting a law prohibiting the advertising cigarettes in any publication distributed within its such also supports of the provision history
The legislative *59 that evidence contain any does The record a reading. be- of pre-emption the scope to expand intended Congress Re- the Senate the contrary, To restrictions.5 content yond the “clarified” merely the clear that changes it makes port 12 91-566, p. No. S. Rep. of provision. the original scope the provision amended, perceived Congress Even as is that its purpose and emphasized as “narrowly phrased” conflicting of a multiplicity created by chaos the “avoid to the Report, Ibid. According to the Senate regulations.” or political state of any affect the power no way “in changes of sale . . . the to with state respect of any subdivision regulations.” similar police to ... minors cigarettes Ibid. the the provision, of pre-emption the scope
In analyzing that concluded uniformly have almost of Courts Appeals billboards of the location local laws regulating state Corp. Cigar v. Consolidated See are not pre-empted. signs 2000) (case below); Greater Reilly, (CA1 30, 39-41 218 F. 3d Giuliani, Inc. v. 195 Council, Metropolitan Food York New Advertising Federation (CA2 1999); 104-110 100, 3dF. of Chicago, Industry Representatives, Inc. v. F. 3d 189 suggestion for the of support a modicum is least There at boundaries. restrictions. of such pre-emption the intended may have Congress that at a ban such id., considering 11 was (noting n. California See Act). However, the concerns the 1969 considering Congress was the time are not present national publications of regulation diverse by the posed and billboards. signs of of the location local regulation the regard con wrong to that it would be briefly argues the Court point, At one restrictions, be only content Congress preclude intended clude that (a radio adver television and ban on location restriction imposed it a cause ante, at 548-549. This See the bill. in of same tising) provision another Congress, fact sequitur. a non something argument a federal impose chose to package, legislative comprehensive adopting whether, in a bearing has no for a national medium restriction location and localities States strip intended to Legislature provision, separate local advertis purely restrictions location authority impose of the ing media. (CA7
686-640
1999); Penn
Baltimore,
Advertising
Inc.
Council
Baltimore,
Mayor
City
(CA4
I am that, convinced firmly when amended the Congress in it pre-emption provision did not intend to expand the of the application provision content beyond regulations.6 suggest Petitioners in passing that Massachusetts’ regulation amounts ba[n],” to a “near-total Brief for Petitioners Lorillard Tobacco Co. et inal. 00-596, No. and thus is de p. of the regulation content of ciga facto rette ads. But we need not consider today the in circumstances which location restrictions approximating total ban might constitute regulation of content and Act, thus pre-empted by the petitioners because have failed to introduce sufficient evidence to create a genuine issue as to that claim. maps Petitioners introduced purporting show that cigarette ad vertising is barred 90.6% of Boston proper, Worcester, 87.8% of and 88.8% Springfield. See App. 165-167. But the do not maps distin guish between the area restricted due to the regulation at issue here and the area due restricted to pre-existing regulations, such as general zoning requirements applicable to all outdoor advertising. Nor do maps the (with show the percentage respect to either area or population) of the State that is off limits to cigarette advertising; they only cover three cities the zoning conclusion inescapable find the
I, therefore, not a in this suit is “requirement issue at regulation within the . . with to . . . . advertising” respect prohibition convinced, not so Even if I were the 1969 Act.7 meaning conclusion from the Court’s I still dissent however, would the is, at provision because regard pre-emption, does The historical record least, simply very ambiguous. “‘clear manifest pur- it was not reflect Congress’ ” id., utilize 516, to States by at attempts pre-empt pose,’ health their protect traditional zoning authority Massa- a manifest minors. Absent purpose, welfare of such retain their traditional police its sister chusetts and States powers.8 S. Census See U. 14% State’s population. containing approximately (1999) 28,47,49 (provid- Bureau, Abstract of the States United Statistical 1998). advertising cigarette in which The area
ing population figures densely populated less in less likely considerably to be restricted is most of this data interpretation And even on the portions of the State. indoor permits still regulation the Massachusetts petitioners, favorable to area 10% the geographical least outdoor cigarette of a total short, equivalent is not the regulation In here of the State. advertising. on ban 7Hence, arguments part I with the substance of agree large while pre-emption on the United States proffered respondents distinction finds issue, content/location I their conclusion reject the. *61 See health.” smoking and “based expression limiting phrase 5; Curiae States as Amicus 20; Brief for Brief for United Respondents Baltimore, Mayor City Council Inc. and v. Penn Advertising of accord, (CA4 1995). First, Baltimore, Instead, follow the I would F. 3d 1318 63 Second, regulating that a concluding and statute Circuits Seventh . . . with re or prohibition a location of is not “requirement Consol the 1969Act. See meaning to... within the advertising” spect 2000) (case (CA1 below); 30, Corp. Reilly, 218 F. 3d 39-41 Cigar idated v. Giuliani, Council, 195 F. 3d N. Y. Food Inc. v. Metropolitan Greater (CA2 1999); Industry Representatives, Advertising Federation of 104-110 1999). (CA7 Chicago, Inc. v. 3d 189 F. 636-640 and localities law States holding precludes The Court’s that federal 1,000 feet of within products from children from protecting dangerous ago that years conclusion six Court’s particularly given school ironic hH On the First Amendment by petitioners, issues raised my disagreements with the majority are significant. less I would, however, dispositions reach different as 1,000- to the foot rule height and restrictions for indoor advertising, my evaluation of practice the sales restrictions differs from the Court’s.
The 1.000-Foot Rule
I in complete am accord with the analysis Court’s importance of the by interests served the advertising re- strictions. As the lucidly Court explains, few interests are more “compelling,” anté, at 564, ensuring than that minors do not become dangerous addicted to a drug they before able to make a mature and informed decision as to the health risks associated with that substance. Unlike products other sold for consumption, human products are addictive ultimately many lethal for long-term users. When that interest is combined with the State’s concomitant concern for the effective enforcement of its laws regarding the sale of tobacco to minors, it becomes clear that regu- Massachusetts’ lations serve highest interests of the order are, there- fore, immune any from challenge, ends-based whatever level scrutiny one employ. chooses to
Nevertheless, noble ends do not save a speech-restricting statute whose means are poorly tailored. Such statutes the Federal Government lacks the constitutional authority to impose similarly motivated ban. See United States Lopez, S.U. Despite the any absence of identified federal interest in creating “an invisi- ble federal 1,000 extending (often zone feet beyond the irregular) bound- aries school property,” as the majority construes it today, the “stat- ute now before us forecloses the States from experimenting and exercising their judgment own in an area to which lay States claim right history id., 583 (Kennedy, J., expertise,” I concurring). wonder why a Court sensitive to federalism concerns would adopt such a con- strange struction of statutory language quite whose different purpose Congress pains took to explain.
600 the means may First, reasons. for two different be invalid they pur- insufficiently to the ends may related chosen be Brewing Co.,514 g., portedly Rubin v. Coots See, serve. e. (1995) (striking prohibiting beer labels a statute U. S. provision did not displaying because the alcohol content from government’s health, the the interest significantly forward citizens). Alternatively, the stat- safety, of its and welfare effectively achiev- broadly that, drawn while ute so may unduly ing that are communications ends, its it restricts g., policy States See, e. United unrelated to its aims. (2000) Playboy Group, Inc., 803,812 529U. S. Entertainment protect indecent from (striking children a statute intended sig- “a part it constituted broadcasts, in because television speakers and between restriction of communication nificant listeners”). difficulty fre- willing is most adult second adopts government measures quently encountered when impose re- protection children that substantial for the of ability one on to communicate strictions the adults Group, e.g., Playboy Inc., Entertainment See, another. Union, supra; S. Liberties U. Reno v. American Civil (1997); Cal., FCC, 492 Inc. v. Sable Communications S. 115 U. present my mind, a tailor- 1,000-foot
To rule does problem cogently ex- ing type. of the first For reasons prior plained opinions opinion Court, in our consump- fairly advertising may we assume that stimulates limiting advertising will therefore, and, tion e.g., consumption.9 Rubin, See, stem facilitate efforts to Broadcasting Edge Co., S., 487; 514 U. States v. United (1993); if Furthermore, ante, 509 S. at 557. U. by particu- government’s consumption limit intention community segment case, lar minors—it is this—in 9Moreover, show require even if it were our practice particularized met have ing consumption, respondents the effects evidence). ante, (summarizing that burden this suit. See at 557-561 *63 601 appropriate, necessary, indeed to tailor advertising restric- tions to the areas segment where that of community the con- gregates this the case, area surrounding schools and —in playgrounds.
However, I share
majority’s
the
concern as to whether the
unduly
1,000-footrule
ability
restricts the
of
manu-
convey
facturers to
lawful information to adult consumers.
This, of
question
course, is a
line-drawing.
aWhile ban
on all
given
communications about
subject
a
would be the
most
way
prevent
effective
children
exposure
from
to such
material, the State
cannot
fiat reduce the level of dis-
course to that which is “fit for children.” Butler v. Michi-
gan,
(1957);
352 U.
380,
S.
383
Bolger
cf.
Youngs Drug
v.
Corp.,
(1983) (“The
Products
463
U. S.
level of dis-
reaching
course
simply
mailbox
cannot be limited to that
sandbox”).
which would be
for
suitable
On the other hand,
protect
efforts to
children
exposure
from
to harmful material
undoubtedly
will
spillover
have some
effect on the free
speech rights of adults.
g.,
See, e.
v.
FCC
Founda-
Pacifica
tion,
Finding the appropriate easy balance is no matter. Though many plausibly factors enter equation the when cal- culating whether a child-directed location goes restriction too far in regulating speech, adult question one crucial is regulatory whether the scheme leaves available sufficient “alternative avenues of communication.” Play- Renton v. time Theatres, Inc., (1986); U. S. City Members Angeles Council Los Taxpayers Vincent, 466 U. S. (1984)(Brennan, 789, 819 J., dissenting); accord, ante, at 563. Because I do not think the record contains sufficient informa- tion to enable us to answer question, I would vacate the summary award judgment upholding 1,000-foot rule and remand for trial on that issue. agree Therefore, while I majority that the Appeals Court of did not suffi- ciently consider implications of the 1,000-foot rule for the lawful communication of adults, ante, see at 561-566, disposition
I from the III-B-2 of dissent reflected Part opinion. the Court’s ciga- prohibits
There is 1,000-foot no doubt that the rule portion rette in a of Massachusetts’ substantial largest questipn, parties however, cities. Even dispute percentage remain in as to the of these urban areas actually advertising. ante, off limits to tobacco See entirely impact Moreover, 562. the record is silent on regulation portions other Commonwealth. *64 scope as dearth reliable statistical information to the problematic. of the ban is importantly, qualitative
More in- the Court lacks sufficient cigarette advertising pro- formation as to the where is areas permitted. hibited those where is that it The fact 80% or 90% of urban an area is unavailable to tobacco advertise- may constitutionally ments be irrelevant if the available heavily city’s areas are so trafficked or so central to the cul- they provide propa- tural life that a sufficient forum for the gation message. sign a manufacturer’s One electric Square may Bridge Times or at the foot of the Golden Gate potential be seen signs more than a customers hundred dispersed neighborhoods. in residential
Finally, the Court lacks information as to other avenues of communication available to manufacturers and example, depending empir- retailers. For on the answers to questions ical ubiquity print on which data, we lack the hawking particular cigarettes advertisements brands might special suffice to inform adult consumers of the advan- tages respective Similarly, print brands. advertise- people’s ments, circulars homes, mouth, mailed word of general may may information or sufficient to population knowledge imbue particu- the adult with the that types lar stores, chains of or sell stores, stores tobacco products.10 indicate, As the above observations the as to whether analysis
1,000-foot rule impermissibly speech curtails between adults will require a particularized analysis may that well ask slightly questions— different In granting summary judgment for respondents, Judge District treated the First Amendment issues in this pure questions suit as of law and stated that “there are issues,” no material dispute facts in concerning these (Mass. 2000). Supp. F. 2d 180, 183 respect, With due I disagree. While question the ultimate before us is one of question law, the answer to complicated turns on factual questions relating practical to the regulations. effects of the As the record does not reveal the disputed answer to these questions of fact, the court should summary have denied judgment parties to both parties and allowed present further evidence.
I alleged note, moreover, that the “overinclusivity” of the advertising regulations, ante, at concurring (Thomas, J., part concurring judgment), while relevant to whether narrowly tailored, “beli[e]” does not claim imagery misleads children believing smoking into healthy, glamorous, sophis- ticated, Legacy ibid. See Brief for American Foundation as Amicus City Curiae and nn. 10; Brief for 4-5, of Los Angeles et al. as Amici Curiae 4 (documenting charge that *65 cigarettes advertisements for target smokeless tobacco smokers). underage purposes summary For of judgment, the State conceded that the companies’ tobacco advertising activity concerns lawful and is misleading. Under the disposition Court’s today, of cases the the State remains free proffer to evidence that the misleading. is in fact Virginia Pharmacy See Bd. Virginia v. Con- Citizens of (“[M]uch sumer Council, Inc., 425 U. S. (1976) com- speech provably mercial wholly is not or false, even false, but only deceptive misleading. or We foresee no to a obstacle dealing effectively problem”). State’s with this I va- would grant cate the summary judgment of respondents to on this issue and remand for proceedings. further conceivably could reach different results —with regard to the constitu- tionality the restrictions as to applied manufacturers and retailers. Advertising Restrictions Indoor Practice and Sales prac- sales challenge to the petitioners’ addressing
After the statute, imposed the Massachusetts restrictions tice the not violate provisions did that these concluded Court judgment, but write in that I concur Amendment. First points. brief this to make two separately on issue the Court District Court agree I with the First, analyzed best practice sales restrictions Appeals that the 53. 3d, at speech. 218 F. See regulating conduct, not as no display products doubt one’s to the how decision While can be same function, the marginal communicative serves hope activity performed with virtually any human said of This Court of others. evoking the interest or intention legis- between long recognized the need to differentiate has targets legislation that targets expression and lation im- but non-speech-related legitimate reasons for conduct g., e. United expression. See, burden poses incidental an difficult However S. 367 O’Brien, 391 U. States laws clear to me that may draw, it seems line counters behind requiring maintain items stores squarely conduct displays on the prohibiting fall self-service accessibility dan- to the as Restrictions side of line. feature products are a common legally gerous restricted or retail stores. regime governing regulatory American re- constitutionally problematic nothing the least bit I see salesclerk of a for assistance to ask quiring individuals peni- handgun, purchase a bottle in order examine cigarettes. package of or a cillin, question closer, would, I though Second, I admit limiting ad- regulation uphold the reasons, similar space five vertising certain establishments retail isolation, viewed floor.11 When more above the feet or Further, to ex- target speech. appears provision this *66 1,000 feet a school within to stores located only applies This ban See adult-only establishments. an exception contains playground ante, 536. tent that target it speech does may it well run into constitu- problems, tional as the connection between the ends the stat- ute purports to serve and the means it has chosen are dubious. Nonetheless, I am ultimately persuaded that the provision unobjectionable it because is little more than an adjunct to the other practice sales restrictions. As the Commonwealth Massachusetts can properly legislate the placement products and the nature of displays in its con- venience stores, I would not draw a distinction between such restrictions height restrictions on product related adver- tising. I would accord the Commonwealth some latitude in imposing restrictions that only can have slightest impact ability on the purchase adults to a poisonous product and may save some children taking from step first on the road to addiction.
Ill Because I strongly disagree with the Court’s conclusionon pre-emption issue, I dissent from Parts II-A and II-B of opinion. its Though agree I with much of what the Court say has to about the First Amendment, I ultimately disagree disposition with its or its reasoning on each of regula- tions before us.12 12Reflecting my partial agreement with Court, I join I, II-C, Parts
II-D, and III-B-1 and concur in the judgment reflected in Part III-D.