OCTOBER TERM, 2000
Syllabus
LORILLARD TOBACCO CO. ET AL.
v. REILLY, ATTORNEY GENERAL
OF MASSACHUSETTS, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST
CIRCUIT
No. 00-596. Argued April 25, 200l-Decided June 28, 2001*
After the Attorney General of Massachusetts (Attorney General)
promulgated comprehensive regulations governing the advertising and
sale of cigarettes, smokeless tobacco, and cigars, petitioners, a
group of tobacco manufacturers and retailers, filed this suit
asserting, among other things, the Supremacy Clause claim that the
cigarette advertising regulations are pre-empted by the Federal
Cigarette Labeling and Advertising Act (FCLAA), which prescribes
mandatory health warnings for cigarette packaging and advertising,
15 U. S. C. § 1333, and pre-empts similar state regulations, §
1334(b); and a claim that the regulations violate the First and
Fourteenth Amendments to the Federal Constitution. In large
measure, the District Court upheld the regulations. Among its
rulings, the court held that restrictions on the location of
advertising were not pre-empted by the FCLAA, and that neither the
regulations prohibiting outdoor advertising within 1,000 feet of a
school or playground nor the sales practices regulations
restricting the location and distribution of tobacco products
violated the First Amendment. The court ruled, however, that the
point-of-sale advertising regulations requiring that indoor
advertising be placed no lower than five feet from the floor were
invalid because the Attorney General had not provided sufficient
justification for that restriction. The First Circuit affirmed the
District Court's rulings that the cigarette advertising regulations
are not pre-empted by the FCLAA and that the outdoor advertising
regulations and the sales practices regulations do not violate the
First Amendment under
Central Hudson Gas &
Elec.
Corp. v.
Public Servo Comm'n of N. Y.,
447 U. S. 557, but
reversed the lower court's invalidation of the point-of-sale
advertising regulations, concluding that the Attorney General is
better suited than courts to determine what restrictions are
necessary.
Held:
1. The FCLAA pre-empts Massachusetts' regulations governing
outdoor and point-of-sale cigarette advertising. Pp. 540-553.
*Together with No. 00-597, Altadis U. S. A. Inc., as Successor
to Consolidated Cigar Corp. and Havatampa, Inc., et al. v. Reilly,
Attorney General of Massachusetts, et al., also on certiorari to
the same court.
526
Syllabus
(a) The FCLAA's pre-emption provision, § 1334, prohibits (a)
requiring cigarette packages to bear any "statement relating to
smoking and health, other than the statement required by" § 1333,
and (b) any "requirement or prohibition based on smoking and health
... imposed under state law with respect to the advertising or
promotion of any cigarettes the packages of which are labeled in
conformity with" § 1333. The Court's analysis begins with the
statute's language.
Hughes Aircraft Co. v.
Jacobson,
525 U. S. 432,
438. The statute's interpretation is aided by considering the
predecessor pre-emption provision and the context in which the
current language was adopted. See,
e. g., Medtronic, Inc. v.
Lohr, 518 U.
S. 470, 486. The original provision simply prohibited any
"statement relating to smoking and health ... in the advertising of
any cigarettes the packages of which are labeled in conformity with
the [Act's] provisions." Without question, the current pre-emption
provision's plain language is much broader.
Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 520.
Rather than preventing only "statements," the amended provision
reaches all "requirement[s] or prohibition[s] ... imposed under
State law." And, although the former statute reached only
statements "in the advertising," the current provision governs
"with respect to the advertising or promotion" of cigarettes. At
the same time that Congress expanded the pre-emption provision with
respect to the States, it enacted a provision prohibiting cigarette
advertising in electronic media altogether. Pp. 540-546.
(b) Congress pre-empted state cigarette advertising regulations
like the Attorney General's because they would upset federal
legislative choices to require specific warnings and to impose the
ban on cigarette advertising in electronic media in order to
address concerns about smoking and health. In holding that the
FCLAA does not nullify the Massachusetts regulations, the First
Circuit concentrated on whether they are "with respect to"
advertising and promotion, concluding that the FCLAA only pre-empts
regulations of the content of cigarette advertising. The court also
reasoned that the regulations are a form of zoning, a traditional
area of state power, and, therefore, a presumption against
pre-emption applied, see
California Div. of Labor Standards
Enforcement v.
Dillingham Constr., N. A., Inc., 519 U. S. 316, 325. This
Court rejects the notion that the regulations are not "with respect
to" cigarette advertising and promotion. There is no question about
an indirect relationship between the Massachusetts regulations and
cigarette advertising: The regulations expressly target such
advertising.
Id., at 324-325. The Attorney General's
argument that the regulations are not "based on smoking and health"
since they do not involve healthrelated content, but instead target
youth exposure to cigarette advertising, is unpersuasive because,
at bottom, the youth exposure concern is
527
intertwined with the smoking and health concern. Also unavailing
is the Attorney General's claim that the regulations are not
pre-empted because they govern the location, not the content, of
cigarette advertising. The content/location distinction cannot be
squared with the preemption provision's language, which reaches
all "requirements" and "prohibitions" "imposed under State
law." A distinction between advertising content and location in the
FCLAA also cannot be reconciled with Congress' own location-based
restriction, which bans advertising in electronic media, but not
elsewhere. The Attorney General's assertion that a complete state
ban on cigarette advertising would not be pre-empted because
Congress did not intend to preclude local control of zoning finds
no support in the FCLAA, whose comprehensive warnings, advertising
restrictions, and pre-emption provision would make little sense if
a State or locality could simply target and ban all cigarette
advertising. Pp. 546-551.
(c) The FCLAA's pre-emption provision does not restrict States'
and localities' ability to enact generally applicable zoning
restrictions on the location and size of advertisements that apply
to cigarettes on equal terms with other products, see,
e. g.,
Metromedia, Inc. v.
San Diego, 453 U. S. 490, 507-508,
or to regulate conduct as it relates to the sale or use of
cigarettes, as by prohibiting cigarette sales to minors, see 42 U.
S. C. §§ 300x-26(a)(1), 300x-21, as well as common inchoate
offenses that attach to criminal conduct, such as solicitation,
conspiracy, and attempt, cf.
Central Hudson, supra, at
563-564. pp. 551-552.
(d) Because the issue was not decided below, the Court declines
to reach the smokeless tobacco petitioners' argument that, if the
outdoor and point-of-sale advertising regulations for cigarettes
are preempted, then the same regulations for smokeless tobacco must
be invalidated because they cannot be severed from the cigarette
provisions. P.553.
2. Massachusetts' outdoor and point-of-sale advertising
regulations relating to smokeless tobacco and cigars violate the
First Amendment, but the sales practices regulations relating to
all three tobacco products are constitutional. Pp. 553-571.
(a) Under
Central Hudson's four-part test for analyzing
regulations of commercial speech, the Court must determine (1)
whether the expression is protected by the First Amendment, (2)
whether the asserted governmental interest is substantial, (3)
whether the regulation directly advances the governmental interest
asserted, and (4) whether it is not more extensive than is
necessary to serve that interest. 447 U. S., at 566. Only the last
two steps are at issue here. The Attorney General has assumed for
summary judgment purposes that the First Amendment protects the
speech of petitioners, none of whom contests
528
Syllabus
the importance of the State's interest in preventing the use of
tobacco by minors. The third step of
Central Hudson requires
that the government demonstrate that the harms it recites are real
and that its restriction will in fact alleviate them to a material
degree.
Edenfield v.
Fane, 507 U. S. 761, 770-771.
The fourth step of
Central Hudson requires a reasonable fit
between the legislature's ends and the means chosen to accomplish
those ends, a means narrowly tailored to achieve the desired
objective.
E. g., Florida Bar v.
Went For It, Inc.,
515 U. S. 618,
632. Pp. 553-556.
(b) The outdoor advertising regulations prohibiting smokeless
tobacco or cigar advertising within 1,000 feet of a school or
playground violate the First Amendment. Pp. 556-566.
(1) Those regulations satisfy
Central Hudson's third step
by directly advancing the governmental interest asserted to justify
them. The Court's detailed review of the record reveals that the
Attorney General has provided ample documentation of the problem
with underage use of smokeless tobacco and cigars. In addition, the
Court disagrees with petitioners' claim that there is no evidence
that preventing targeted advertising campaigns and limiting youth
exposure to advertising will decrease underage use of those
products. On the record below and in the posture of summary
judgment, it cannot be concluded that the Attorney General's
decision to regulate smokeless tobacco and cigar advertising in an
effort to combat the use of tobacco products by minors was based on
mere "speculation and conjecture."
Edenfield, supra, at 770.
Pp. 556-561.
(2) Whatever the strength of the Attorney General's evidence to
justify the outdoor advertising regulations, however, the
regulations do not satisfy
Central Hudson's fourth step.
Their broad sweep indicates that the Attorney General did not
"carefully calculat[e] the costs and benefits associated with the
burden on speech imposed."
Cincinnati v.
Discovery
Network, Inc., 507 U. S. 410, 417. The
record indicates that the regulations prohibit advertising in a
substantial portion of Massachusetts' major metropolitan areas; in
some areas, they would constitute nearly a complete ban on the
communication of truthful information. This substantial
geographical reach is compounded by other factors. "Outdoor"
advertising includes not only advertising located outside an
establishment, but also advertising inside a store if visible from
outside. Moreover, the regulations restrict advertisements of any
size, and the term advertisement also includes oral statements. The
uniformly broad sweep of the geographical limitation and the range
of communications restricted demonstrate a lack of tailoring. The
governmental interest in preventing underage tobacco use is
substantial, and even compelling, but it is no less true that the
sale and use of tobacco products by
529
adults is a legal activity. A speech regulation cannot unduly
impinge on the speaker's ability to propose a commercial
transaction and the adult listener's opportunity to obtain
information about products. The Attorney General has failed to show
that the regulations at issue are not more extensive than
necessary. Pp.561-566.
(c) The regulations prohibiting indoor, point-of-sale
advertising of smokeless tobacco and cigars lower than 5 feet from
the floor of a retail establishment located within 1,000 feet of a
school or playground fail both the third and fourth steps of the
Central Hudson analysis. The 5-foot rule does not seem to
advance the goals of preventing minors from using tobacco products
and curbing demand for that activity by limiting youth exposure to
advertising. Not all children are less than 5 feet tall, and those
who are can look up and take in their surroundings. Nor can the
blanket height restriction be construed as a mere regulation of
communicative action under
United States v.
O'Brien,
391 U. S. 367,
since it is not unrelated to expression, see,
e. g., Texas
v.
Johnson, 491 U. S. 397,403, but attempts to regulate
directly the communicative impact of indoor advertising. Moreover,
the restriction does not constitute a reasonable fit with the goal
of targeting tobacco advertising that entices children. Although
the First Circuit decided that the restriction's burden on speech
is very limited, there is no
de minimis exception for a
speech restriction that lacks sufficient tailoring or
justification. Pp.566-567.
(d) Assuming that petitioners have a cognizable speech interest
in a particular means of displaying their products, cf.
Cincinnati v.
Discovery Network, Inc., supra, at 410,
the regulations requiring retailers to place tobacco products
behind counters and requiring customers to have contact with a
salesperson before they are able to handle such a product withstand
First Amendment scrutiny. The State has demonstrated a substantial
interest in preventing access to tobacco products by minors and has
adopted an appropriately narrow means of advancing that interest.
See,
e. g., O'Brien, supra, at 382. Because unattended
displays of such products present an opportunity for access without
the proper age verification required by law, the State prohibits
self-service and other displays that would allow an individual to
obtain tobacco without direct contact with a salesperson. It is
clear that the regulations leave open ample communication channels.
They do not significantly impede adult access to tobacco products,
and retailers have other means of exercising any cognizable speech
interest in the presentation of their products. The Court presumes
that vendors may place empty tobacco packaging on open display, and
display actual tobacco products so long as that display is only
accessible to sales personnel. As for cigars, there is no
indication that a customer is unable to examine a cigar prior to
pur-
530
Syllabus
chase, so long as that examination takes place through a
salesperson. Pp. 567-570.
(e) The Court declines to address the cigar petitioners' First
Amendment challenge to a regulation prohibiting sampling or
promotional giveaways of cigars and little cigars. That claim was
not sufficiently briefed and argued before this Court. Pp.
570-571.
218 F.3d
30, affirmed in part, reversed in part, and remanded.
O'CONNOR, J., delivered the opinion of the Court, Parts I, II-C,
and II-D of which were unanimous; Parts III-A, III-C, and III-D of
which were joined by REHNQUIST, C. J., and SCALIA, KENNEDY, SOUTER,
and THOMAS, JJ.; Part III-B-1 of which was joined by REHNQUIST, C.
J., and STEVENS, SOUTER, GINSBURG, and BREYER, JJ.; and Parts II-A,
II-B, III-B-2, and IV of which were joined by REHNQUIST, C. J., and
SCALIA, KENNEDY, and THOMAS, JJ. KENNEDY, J., filed an opinion
concurring in part and concurring in the judgment, in which SCALIA,
J., joined,
post, p. 571. THOMAS, J., filed an opinion
concurring in part and concurring in the judgment,
post, p.
572. SOUTER, J., filed an opinion concurring in part and dissenting
in part,
post, p. 590. STEVENS, J., filed an opinion
concurring in part, concurring in the judgment in part, and
dissenting in part, in which GINSBURG and BREYER, JJ., joined, and
in which SOUTER, J., joined as to Part I,
post, p. 590.
Jeffrey S. Sutton argued the cause for petitioners in No.
00-596. With him on the briefs were Daniel P. Collins, Michael R.
Doyen, Fred A. Rowley, Jr., Kenneth S. Geller, Andrew L. Frey,
Richard M. Zielinski, John L. Strauch, Gregory G. Katsas, John B.
Connarton, Jr., Patricia A. Barald, and David H. Remes. James v:
Kearney filed a brief for petitioners in No. 00-597. With Mr.
Kearney on the brief were Christopher Harris and Richard P. Bress.
Peter J. McKenna and Eric S. Sarner filed a brief for petitioner U.
S. Smokeless Tobacco Company in both cases.
William W Porter, Assistant Attorney General of the
Commonwealth of Massachusetts, argued the cause for respondents in
both cases. With him on the brief were
Thomas F. Reilly,
Attorney General, and
Susan Paulson, Assistant Attorney
General.
Acting Solicitor General Underwood argued the cause for
the United States as
amicus curiae urging affirmance.
531
With her on the brief were Acting Assistant Attorney General
Schiffer, Deputy Solicitor General Kneedler, Irving L. Gornstein,
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; for the American Association of
Advertising Agencies et al. by
Penelope S.
Farthing;
for the Association of National Advertisers, Inc., by
Steven
G.
Brody, John J.
Walsh, and
Gilbert H. Weil;
for Infinity Outdoor, Inc., et al. by
Floyd Abrams and
Joel Kurtzberg; for the National Association of Convenience
Stores by
Scott A. Sinder and
John B. Williams; for
the Newspaper Association of America et al. by
Bruce E. H.
Johnson, P. Cameron De Yore, Rene P. Milam, Steven R. Shapiro,
Stuart D. Karle, Robin Bierstedt, Lucy Dalglish, and
Gregg
Leslie; for the Product Liability Advisory Council, Inc., by
Leslie G.
Landau; and for the Washington Legal
Foundation by
Daniel J.
Popeo and
Richard A.
Samp.
Briefs of
amici curiae urging affirmance were filed for
the State of California et al. by
Seth E. Mermin and
Corinne Lee Murphy, Deputy Attorneys General of California,
Bill Lockyer, Attorney General,
Richard M. Frank,
Chief Assistant Attorney General,
Herschel T. Elkins and
Dennis Eckhart, Senior Assistant Attorneys General,
Ronald A. Reiter, Supervising 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 of Alaska,
Janet Napolitano of Arizona,
Mark Pryor of Arkansas,
Ken Salazar of Colorado,
Richard Blumenthal of
Connecticut,
Robert A. Butterworth of Florida,
Earl I.
Anzai of Hawaii,
Alan G.
Lance of Idaho,
Jim
Ryan of Illinois,
Steve Carter of Indiana,
Tom
Miller of Iowa,
Carla J.
Stovall of Kansas,
Richard P. Ieyoub of Louisiana,
Steve Rowe of Maine,
J.
Joseph Curran, Jr., of Maryland,
Mike Hatch of
Minnesota,
Mike Moore of Mississippi,
Jeremiah W
Nixon of Missouri,
Mike McGrath of Montana,
Frankie
Sue Del Papa of Nevada,
Philip T. McLaughlin of New
Hampshire,
John Farmer of New Jersey,
Patricia Madrid
of New Mexico,
Eliot Spitzer of New York,
Wayne
Stenehjem of North Dakota,
Herbert D. Soll of the
Northern Mariana Islands,
Betty D. Montgomery of Ohio,
W
A. Drew Edmondson of Oklahoma,
Hardy Myers of Oregon,
Mike Fisher of Pennsylvania,
Sheldon Whitehouse of
Rhode Island,
Mark Barnett of South Dakota,
Paul
Summers of Tennessee,
John Cornyn of Texas,
Mark
Shurtleff of Utah,
William H. Sorrell of Vermont,
Christine O.
Gregoire of Washington,
Darrel V.
McGraw, Jr., of West Virginia, and
James E. Doyle of
Wisconsin; for the Cities of Oakland, California, et al. by
Stephen P. Berzon, Michael E. Wall, Lawrence Rosenthal, and
Benna Ruth Solomon;
532
JUSTICE O'CONNOR delivered the opinion of the Court.
In January 1999, the Attorney General of Massachusetts
promulgated comprehensive regulations governing the advertising and
sale of cigarettes, smokeless tobacco, and cigars. 940 Code of
Mass. Regs. §§ 21.01-21.07, 22.01-22.09 (2000). Petitioners, a
group of cigarette, smokeless tobacco, and cigar manufacturers and
retailers, filed suit in Federal District Court claiming that the
regulations violate federal law and the United States Constitution.
In large measure, the District Court determined that the
regulations are valid and enforceable. The United States Court of
Appeals for the First Circuit affirmed in part and reversed in
part, concluding that the regulations are not pre-empted by federal
law and do not violate the First Amendment. The first question
presented for our review is whether certain cigarette advertising
regulations are pre-empted by the Federal Cigarette Labeling and
Advertising Act (FCLAA), 79 Stat. 282, as amended, 15 U. S. C. §
1331
et seq. The second question presented is whether
certain regulations governing the advertising and sale of tobacco
products violate the First Amendment.
for the City of Los Angeles et al. by Mark E. Haddad, James M.
Harris, Joseph R. Guerra, and James K. Hahn; for the City of New
York et al. by Michael D. Hess, Leonard J. Koerner, Elizabeth Susan
Natrella, Richard M. Weinberg, and Sandra R. Gutman; for the
American Legacy Foundation by A. Stephen Hut, Jr., John Payton,
Patrick J. Carome, and Matthew A. Brill; for the American Medical
Association et al. by Donald W Garner; for the National Center for
Tobacco-Free Kids et al. by David Vladeck, Allison M. Zieve, Alan
B. Morrison, and Matthew L. Myers; for the National Conference of
State Legislatures et al. by Richard Ruda, James I. Crowley, and D.
Bruce La Pierre; and for the Tobacco Control Resource Center, Inc.,
by Richard A. Daynard.
Briefs of
amici curiae were filed for the State's
Attorney of Dupage County, Illinois, et al. by
Richard Hodyl,
Jr., Joseph E. Birkett, and
Nancy J.
Wolfe; and
for the American Planning Association by
Randal R.
Morrison.
533
I
In November 1998, Massachusetts, along with over 40 other
States, reached a landmark agreement with major manufacturers in
the cigarette industry. The signatory States settled their claims
against these companies in exchange for monetary payments and
permanent injunctive relief. See App. 253-258 (Outline of Terms for
Massachusetts in National Tobacco Settlement); Master Settlement
Agreement (Nov. 23, 1998),
http://www.naag.org. At the press
conference covering Massachusetts' decision to sign the agreement,
then-Attorney General Scott Harshbarger announced that as one of
his last acts in office, he would create consumer protection
regulations to restrict advertising and sales practices for tobacco
products. He explained that the regulations were necessary in order
to "close holes" in the settlement agreement and "to stop Big
Tobacco from recruiting new customers among the children of
Massachusetts." App.251.
In January 1999, pursuant to his authority to prevent unfair or
deceptive practices in trade, Mass. Gen. Laws, ch. 93A, § 2 (1997),
the Massachusetts Attorney General (Attorney General) promulgated
regulations governing the sale and advertisement of cigarettes,
smokeless tobacco, and cigars. The purpose of the cigarette and
smokeless tobacco regulations is "to eliminate deception and
unfairness in the way cigarettes and smokeless tobacco products are
marketed, sold and distributed in Massachusetts in order to address
the incidence of cigarette smoking and smokeless tobacco use by
children under legal age ... [and] in order to prevent access to
such products by underage consumers." 940 Code of Mass. Regs. §
21.01 (2000). The similar purpose of the cigar regulations is "to
eliminate deception and unfairness in the way cigars and little
cigars are packaged, marketed, sold and distributed in
Massachusetts [so that] ... consumers may be adequately informed
about the health
534
risks associated with cigar smoking, its addictive properties,
and the false perception that cigars are a safe alternative to
cigarettes ... [and so that] the incidence of cigar use by children
under legal age is addressed ... in order to prevent access to such
products by underage consumers."
Ibid. The regulations have
a broader scope than the master settlement agreement, reaching
advertising, sales practices, and members of the tobacco industry
not covered by the agreement. The regulations place a variety of
restrictions on outdoor advertising, point-of-sale advertising,
retail sales transactions, transactions by mail, promotions,
sampling of products, and labels for cigars.
The cigarette and smokeless tobacco regulations being
challenged before this Court provide:
"(2) Retail Outlet Sales Practices. Except as otherwise provided
in [§ 21.04(4)], it shall be an unfair or deceptive act or practice
for any person who sells or distributes cigarettes or smokeless
tobacco products through a retail outlet located within
Massachusetts to engage in any of the following retail outlet sales
practices:
"(c) Using self-service displays of cigarettes or smokeless
tobacco products;
"(d) Failing to place cigarettes and smokeless tobacco products
out of the reach of all consumers, and in a location accessible
only to outlet personnel." §§ 21.04(2)(c)-(d).
"(5) Advertising Restrictions. Except as provided in [§
21.04(6)], it shall be an unfair or deceptive act or practice for
any manufacturer, distributor or retailer to engage in any of the
following practices:
"(a) Outdoor advertising, including advertising in enclosed
stadiums and advertising from within a retail establishment that is
directed toward or visible from the
535
outside of the establishment, in any location that is within a
1,000 foot radius of any public playground, playground area in a
public park, elementary school or secondary school;
"(b) Point-of-sale advertising of cigarettes or smokeless
tobacco products any portion of which is placed lower than five
feet from the floor of any retail establishment which is located
within a one thousand foot radius of any public playground,
playground area in a public park, elementary school or secondary
school, and which is not an adult-only retail establishment." §§
21.04(5)(a)-(b).
The cigar regulations that are still at issue provide:
"(1) Retail Sales Practices. Except as otherwise provided in [§
22.06(4)], it shall be an unfair or deceptive act or practice for
any person who sells or distributes cigars or little cigars
directly to consumers within Massachusetts to engage in any of the
following practices:
"(a) sampling of cigars or little cigars or promotional
give-aways of cigars or little cigars." § 21.06(1)(a).
"(2) Retail Outlet Sales Practices. Except as otherwise provided
in [§ 22.06(4)], it shall be an unfair or deceptive act or practice
for any person who sells or distributes cigars or little cigars
through a retail outlet located within Massachusetts to engage in
any of the following retail outlet sales practices:
"(c) Using self-service displays of cigars or little cigars;
"(d) Failing to place cigars and little cigars out of the reach of
all consumers, and in a location accessible only to outlet
personnel." §§ 22.06(2)(c)-(d).
"(5) Advertising Restrictions. Except as provided in [§
22.06(6)], it shall be an unfair or deceptive act or practice for
any manufacturer, distributor or retailer to engage in any of the
following practices:
536
"(a) Outdoor advertising of cigars or little cigars, including
advertising in enclosed stadiums and advertising from within a
retail establishment that is directed toward or visible from the
outside of the establishment, in any location within a 1,000 foot
radius of any public playground, playground area in a public park,
elementary school or secondary school;
"(b) Point-of-sale advertising of cigars or little cigars any
portion of which is placed lower than five feet from the floor of
any retail establishment which is located within a one thousand
foot radius of any public playground, playground area in a public
park, elementary school or secondary school, and which is not an
adultonly retail establishment." §§ 22.06(5)(a)-(b).
The term "advertisement" is defined as:
"any oral, written, graphic, or pictorial statement or
representation, made by, or on behalf of, any person who
manufactures, packages, imports for sale, distributes or sells
within Massachusetts [tobacco products], the purpose or effect of
which is to promote the use or sale of the product. Advertisement
includes, without limitation, any picture, logo, symbol, motto,
selling message, graphic display, visual image, recognizable color
or pattern of colors, or any other indicia of product
identification identical or similar to, or identifiable with, those
used for any brand of [tobacco product]. This includes, without
limitation, utilitarian items and permanent or semi-permanent
fixtures with such indicia of product identification such as
lighting fixtures, awnings, display cases, clocks and door mats,
but does not include utilitarian items with a volume of 200 cubic
inches or less." §§ 21.03, 22.03.
Before the effective date of the regulations, February 1, 2000,
members of the tobacco industry sued the Attorney General in the
United States District Court for the District
537
of Massachusetts. Four cigarette manufacturers (Lorillard
Tobacco Company, Brown & Williamson Tobacco Corporation, R. J.
Reynolds Tobacco Company, and Philip Morris Incorporated), a maker
of smokeless tobacco products (D. S. Smokeless Tobacco Company),
and several cigar manufacturers and retailers claimed that many of
the regulations violate the Commerce Clause, the Supremacy Clause,
the First and Fourteenth Amendments, and Rev. Stat. § 1979, 42 D.
S. C. § 1983. The parties sought summary judgment. 76 F. Supp. 2d
124, 127 (1999); 84 F. Supp. 2d 180, 183 (2000).
In its first ruling, the District Court considered the Supremacy
Clause claim that the FCLAA, 15 D. S. C. § 1331
et seq.,
pre-empts the cigarette advertising regulations. 76 F. Supp. 2d, at
128-134. The FCLAA prescribes the health warnings that must appear
on packaging and in advertisements for cigarettes. The FCLAA
contains a pre-emption provision that prohibits a State from
imposing any "requirement or prohibition based on smoking and
health ... with respect to the advertising or promotion of ...
cigarettes." § 1334(b). The FCLAA's pre-emption provision does not
cover smokeless tobacco or cigars.
The District Court explained that the central question for
purposes of pre-emption is whether the regulations create a
predicate legal duty based on smoking and health. The court
reasoned that to read the pre-emption provision to proscribe any
state advertising regulation enacted due to health concerns about
smoking would expand Congress' purpose beyond a reasonable scope
and leave States powerless to regulate in the area. The court
concluded that restrictions on the location of advertising are not
based on smoking and health and thus are not pre-empted by the
FCLAA. The District Court also concluded that a provision that
permitted retailers to display a black and white "tombstone" sign
reading "Tobacco Products Sold Here," 940 Code of Mass. Regs. §
21.04(6) (2000), was pre-empted by the FCLAA.
538
In a separate ruling, the District Court considered the claim
that the Attorney General's regulations violate the First
Amendment. 84 F. SUpp. 2d, at 183-196. Rejecting petitioners'
argument that strict scrutiny should apply, the court applied the
four-part test of
Central Hudson Gas & Elec. Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S. 557 (1980), for
commercial speech. The court reasoned that the Attorney General had
provided an adequate basis for regulating cigars and smokeless
tobacco as well as cigarettes because of the similarities among the
products. The court held that the outdoor advertising regulations,
which prohibit outdoor advertising within 1,000 feet of a school or
playground, do not violate the First Amendment because they advance
a substantial government interest and are narrowly tailored to
suppress no more speech than necessary. The court concluded that
the sales practices regulations, which restrict the location and
distribution of tobacco products, survive scrutiny because they do
not implicate a significant speech interest. The court invalidated
the point-of-sale advertising regulations, which require that
indoor advertising be placed no lower than five feet from the
floor, finding that the Attorney General had not provided
sufficient justification for that restriction. The District Court's
ruling with respect to the cigar warning requirements and the
Commerce Clause is not before this Court.
The United States Court of Appeals for the First Circuit issued
a stay pending appeal, App. 8-9, and affirmed in part and reversed
in part the District Court's judgment,
Consolidated Cigar
Corp. v.
Reilly, 218 F.3d
30 (2000). With respect to the Supremacy Clause, the Court of
Appeals affirmed the District Court's ruling that the Attorney
General's cigarette advertising regulations are not preempted by
the FCLAA. The First Circuit was persuaded by the reasoning of the
Second and Seventh Circuits, which had concluded that the FCLAA's
pre-emption provision is ambiguous, and held that the provision
pre-empts regula-
539
tions of the content, but not the location, of cigarette
advertising. See Greater New York Metropolitan Food Council, Inc.
v. Giuliani,
195 F.3d
100, 104-110 (CA2 1999); Federation of Advertising Industry
Representatives, Inc. v. Chicago,
189 F.3d
633, 636-640 (CA7 1999).
With respect to the First Amendment, the Court of Appeals
applied the
Central Hudson test.
447 U. S. 557 (1980). The
court held that the outdoor advertising regulations do not violate
the First Amendment. The court concluded that the restriction on
outdoor advertising within 1,000 feet of a school or playground
directly advances the State's substantial interest in preventing
tobacco use by minors. The court also found that the outdoor
advertising regulations restrict no more speech than necessary,
reasoning that the distance chosen by the Attorney General is the
sort of determination better suited for legislative and executive
decisionmakers than courts. The Court of Appeals reversed the
District Court's invalidation of the point-of-sale advertising
regulations, again concluding that the Attorney General is better
suited to determine what restrictions are necessary. The Court of
Appeals also held that the sales practices regulations are valid
under the First Amendment. The court found that the regulations
directly advance the State's interest in preventing minors' access
to tobacco products and that the regulations are narrowly tailored
because retailers have a variety of other means to present the
packaging of their products and to allow customers to examine the
products.
As for the argument that smokeless tobacco and cigars are
different from cigarettes, the court expressed some misgivings
about equating all tobacco products, but ultimately decided that
the Attorney General had presented sufficient evidence with respect
to all three products to regulate them similarly. The Court of
Appeals' decision with respect to the cigar warning requirements
and the Commerce Clause is not before this Court.
540
The Court of Appeals stayed its mandate pending disposition of a
petition for a writ of certiorari. App. 13. The cigarette
manufacturers and U. S. Smokeless Tobacco Company filed a petition,
challenging the Court of Appeals' decision with respect to the
outdoor and point-of-sale advertising regulations on pre-emption
and First Amendment grounds, and the sales practices regulations on
First Amendment grounds. The cigar companies filed a separate
petition, again raising a First Amendment challenge to the outdoor
advertising, point-of-sale advertising, and sales practices
regulations. We granted both petitions, 531 U. S. 1068 (2001), to
resolve the conflict among the Courts of Appeals with respect to
whether the FCLAA pre-empts cigarette advertising regulations like
those at issue here, cf.
Lindsey v.
Tacoma-Pierce County
Health Dept., 195 F.3d
1065 (CA9 1999), and to decide the important First
Amendment issues presented in these cases.
II
Before reaching the First Amendment issues, we must decide to
what extent federal law pre-empts the Attorney General's
regulations. The cigarette petitioners contend that the FCLAA, 15
U. S. C. § 1331
et seq., pre-empts the Attorney General's
cigarette advertising regulations.
A
Article VI, cl. 2, of the United States Constitution commands
that the laws of the United States "shall be the supreme Law of the
Land; ... any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding." See also
McCulloch v.
Maryland, 4 Wheat. 316, 427 (1819) ("It is of the very
essence of supremacy, to remove all obstacles to its action within
its own sphere, and so to modify every power vested in subordinate
governments"). This relatively clear and simple mandate has
generated considerable discussion in cases where we have had to
discern whether Congress has pre-empted state action in a
particu-
541
lar area. State action may be foreclosed by express language in
a congressional enactment, see,
e. g., Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 517
(1992), by implication from the depth and breadth of a
congressional scheme that occupies the legislative field, see,
e. g., Fidelity Fed. Sav. & Loan Assn. v.
De la
Cuesta, 458 U. S.
141, 153 (1982), or by implication because of a conflict with a
congressional enactment, see,
e. g., Geier v.
American
Honda Motor Co., 529 U. S. 861, 869-874 (2000).
In the FCLAA, Congress has crafted a comprehensive federal
scheme governing the advertising and promotion of cigarettes. The
FCLAA's pre-emption provision provides:
"(a) Additional statements
"No statement relating to smoking and health, other than the
statement required by section 1333 of this title, shall be required
on any cigarette package.
"(b) State regulations
"No requirement or prohibition based on smoking and health shall
be imposed under State law with respect to the advertising or
promotion of any cigarettes the packages of which are labeled in
conformity with the provisions of this chapter." 15 U. S. C. §
1334.
The FCLAA's pre-emption provision does not cover smokeless
tobacco or cigars.
In these cases, our task is to identify the domain expressly
pre-empted, see
Cipollone, supra, at 517, because "an
express definition of the pre-emptive reach of a statute ...
supports a reasonable inference ... that Congress did not intend to
pre-empt other matters,"
Freightliner Corp. v.
Myrick, 514 U.
S. 280, 288 (1995). Congressional purpose is the "ultimate
touchstone" of our inquiry.
Cipollone, supra, at 516
(internal quotation marks omitted). Because "federal law is said to
bar state action in [a] fiel[d] of traditional state regulation,"
namely, advertising, see
Packer Corp. v.
Utah,
285 U. S. 105,
108 (1932), we "wor[k] on the assumption that
542
the historic police powers of the States [a]re not to be
superseded by the Federal Act unless that [is] the clear and
manifest purpose of Congress."
California Div. of Labor
Standards Enforcement v.
Dillingham Constr., N.
A.,
Inc., 519 U. S. 316, 325 (1997) (internal quotation marks
omitted). See also
Medtronic, Inc. v.
Lohr, 518 U. S. 470, 475
(1996).
Our analysis begins with the language of the statute.
Hughes Aircraft Co. v.
Jacobson, 525 U. S. 432, 438
(1999). In the pre-emption provision, Congress unequivocally
precludes the requirement of any additional statements on cigarette
packages beyond those provided in § 1333. 15 U. S. C. § 1334(a).
Congress further precludes States or localities from imposing any
requirement or prohibition based on smoking and health with respect
to the advertising and promotion of cigarettes. § 1334(b). Without
question, the second clause is more expansive than the first; it
employs far more sweeping language to describe the state action
that is pre-empted. We must give meaning to each element of the
pre-emption provision. We are aided in our interpretation by
considering the predecessor pre-emption provision and the
circumstances in which the current language was adopted. See
Medtronic, supra, at 486;
McCarthy v.
Bronson,
500 U. S. 136,
139 (1991);
K mart Corp. v.
Cartier, Inc., 486 U. S. 281, 291
(1988).
In 1964, the groundbreaking Report of the Surgeon General's
Advisory Committee on Smoking and Health concluded that
"[c]igarette smoking is a health hazard of sufficient importance in
the United States to warrant appropriate remedial action."
Department of Health, Education, and Welfare, U. S. Surgeon
General's Advisory Committee, Smoking and Health 33. In 1965,
Congress enacted the FCLAA as a proactive measure in the face of
impending regulation by federal agencies and the States. Pub. L.
89-92, 79 Stat. 282. See also
Cipollone, supra, at 513-515.
The purpose of the FCLAA was twofold: to inform the public
adequately about the hazards of cigarette smoking, and to protect
the national
543
economy from interference due to diverse, nonuniform, and
confusing cigarette labeling and advertising regulations with
respect to the relationship between smoking and health. Pub. L.
89-92, § 2. The FCLAA prescribed a label for cigarette packages:
"Caution: Cigarette Smoking May Be Hazardous to Your Health." § 4.
The FCLAA also required the Secretary of Health, Education, and
Welfare (HEW) and the Federal Trade Commission (FTC) to report
annually to Congress about the health consequences of smoking and
the advertising and promotion of cigarettes. § 5.
Section 5 of the FCLAA included a pre-emption provision in which
"Congress spoke precisely and narrowly."
Cipollone, supra,
at 518. Subsection (a) prohibited any requirement of additional
statements on cigarette packaging. Subsection (b) provided that
"[n]o statement relating to smoking and health shall be required in
the advertising of any cigarettes 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 1, 1969, for these provisions.
As we have previously explained, "on their face, [the preemption]
provisions merely prohibited state and federal rulemaking bodies
from mandating particular cautionary statements on cigarette labels
[subsection (a)] or in cigarette advertisements [subsection (b)]."
Cipollone, supra, at 518.
The FCLAA was enacted with the expectation that Congress would
reexamine it in 1969 in light of the developing information about
cigarette smoking and health. H. R. Rep. No. 586, 89th Cong., 1st
Sess., 6 (1965); 111 Congo Rec. 16541 (1965). In the intervening
years, Congress received reports and recommendations from the HEW
Secretary and the FTC. S. Rep. No. 91-566, pp. 2-6 (1969). The HEW
Secretary recommended that Congress strengthen the warning, require
the warning on all packages and in advertisements, and publish tar
and nicotine levels on packages and in advertisements.
Id.,
at 4. The FTC made similar and additional
544
recommendations. The FTC sought a complete ban on radio and
television advertising, a requirement that broadcasters devote time
for health hazard announcements concerning smoking, and increased
funding for public education and research about smoking.
Id., at 6. The FTC urged Congress not to continue to prevent
federal agencies from regulating cigarette advertising.
Id.,
at 10. In addition, the Federal Communications Commission (FCC) had
concluded that advertising which promoted the use of cigarettes
created a duty in broadcast stations to provide information about
the hazards of cigarette smoking.
Id., at 6-7.
In 1969, House and Senate committees held hearings about the
health effects of cigarette smoking and advertising by the
cigarette industry. The bill that emerged from the House of
Representatives strengthened the warning and maintained the
pre-emption provision. The Senate amended that bill, adding the ban
on radio and television advertising, and changing the pre-emption
language to its present form. H. R. Conf. Rep. No. 91-897, pp. 4-5
(1970).
The final result was the Public Health Cigarette Smoking Act of
1969, in which Congress, following the Senate's amendments, made
three significant changes to the FCLAA. Pub. L. 91-222, § 2, 84
Stat. 87. First, Congress drafted a new label that read: "Warning:
The Surgeon General Has Determined That Cigarette Smoking Is
Dangerous to Your Health." FCLAA, § 4. Second, Congress declared it
unlawful to advertise cigarettes on any medium of electronic
communication subject to the jurisdiction of the FCC. § 6. Finally,
Congress enacted the current pre-emption provision, which
proscribes any "requirement or prohibition based on smoking and
health ... imposed under State law with respect to the advertising
or promotion" of cigarettes. § 5(b). The new subsection (b) did not
pre-empt regulation by federal agencies, freeing the FTC to impose
warning requirements in cigarette advertising. See
Cipollone, 505 U. S., at 515. The new pre-emption provision,
like its predecessor, only applied to cigarettes, and not other
tobacco products.
545
In 1984, Congress again amended the FCLAA in the Comprehensive
Smoking Education Act. Pub. L. 98-474, 98 Stat. 2200. The purpose
of the Act was to "provide a new strategy for making Americans more
aware of any adverse health effects of smoking, to assure the
timely and widespread dissemination of research findings and to
enable individuals to make informed decisions about smoking." § 2.
The Act established a series of warnings to appear on a rotating
basis on cigarette packages and in cigarette advertising, § 4, and
directed the Health and Human Services Secretary to create and
implement an educational program about the health effects of
cigarette smoking, § 3.
The FTC has continued to report on trade practices in the
cigarette industry. In 1999, the first year since the master
settlement agreement, the FTC reported that the cigarette industry
expended $8.24 billion on advertising and promotions, the largest
expenditure ever. FTC, Cigarette Report for 1999, p. 1 (2000).
Substantial increases were found in point-of-sale promotions,
payments made to retailers to facilitate sales, and retail offers
such as buy one, get one free, or product giveaways.
Id., at
4-5. Substantial decreases, however, were reported for outdoor
advertising and transit advertising.
Id., at 2. Congress and
federal agencies continue to monitor advertising and promotion
practices in the cigarette industry.
The scope and meaning of the current pre-emption provision
become clearer once we consider the original preemption language
and the amendments to the FCLAA. Without question, "the plain
language of the pre-emption provision in the 1969 Act is much
broader."
Cipollone, 505 U. S., at 520. Rather than
preventing only "statements," the amended provision reaches all
"requirement[s] or prohibition[s] ... imposed under State law."
And, although the former statute reached only statements "in the
advertising," the current provision governs "with respect to the
advertising or promotion" of cigarettes. See ibid. Congress
expanded the pre-emption provision with respect to the
546
States, and at the same time, it allowed the FTC to regulate
cigarette advertising. Congress also prohibited cigarette
advertising in electronic media altogether. Viewed in light of the
context in which the current pre-emption provision was adopted, we
must determine whether the FCLAA preempts Massachusetts'
regulations governing outdoor and point-of-sale advertising of
cigarettes.
B
The Court of Appeals acknowledged that the FCLAA pre-empts any
"requirement or prohibition based on smoking and health ... with
respect to the advertising or promotion of ... cigarettes," 15 U.
S. C. § 1334(b), but concluded that the FCLAA does not nullify
Massachusetts' cigarette advertising regulations. The court
concentrated its analysis on whether the regulations are "with
respect to" advertising and promotion, relying on two of its sister
Circuits to conclude that the FCLAA only pre-empts regulations of
the content of cigarette advertising. The Court of Appeals also
reasoned that the Attorney General's regulations are a form of
zoning, a traditional area of state power; therefore the
presumption against pre-emption applied.
The cigarette petitioners maintain that the Court of Appeals'
"with respect to" analysis is inconsistent with the FCLAA's
statutory text and legislative history, and gives the States
license to prohibit almost all cigarette advertising. Petitioners
also maintain that there is no basis for construing the pre-emption
provision to prohibit only content-based advertising
regulations.
Although they support the Court of Appeals' result, the Attorney
General and United States as
amicus curiae do not fully
endorse that court's textual analysis of the pre-emption provision.
Instead, they assert that the cigarette advertising regulations are
not pre-empted because they are not "based on smoking and health."
The Attorney General and
547
the United States also contend that the regulations are not
pre-empted because they do not prescribe the content of cigarette
advertising and they fall squarely within the State's traditional
powers to control the location of advertising and to protect the
welfare of children.
Turning first to the language in the pre-emption provision
relied upon by the Court of Appeals, we reject the notion that the
Attorney General's cigarette advertising regulations are not "with
respect to" advertising and promotion. We disagree with the Court
of Appeals' analogy to the Employee Retirement Income Security Act
of 1974 (ERISA). In some cases concerning ERISA's pre-emption of
state law, the Court has had to decide whether a particular state
law "relates to" an employee benefit plan covered by ERISA even
though the state law makes no express reference to such a plan.
See,
e. g., California Div. of Labor Standards Enforcement
v.
Dillingham Constr., N.
A., Inc., 519 U. S., at
324-325. Here, however, there is no question about an indirect
relationship between the regulations and cigarette advertising
because the regulations expressly target cigarette advertising. 940
Code of Mass. Regs. § 21.04(5) (2000).
Before this Court, the Attorney General focuses on a different
phrase in the pre-emption provision: "based on smoking and health."
The Attorney General argues that the cigarette advertising
regulations are not "based on smoking and health," because they do
not involve health-related content in cigarette advertising but
instead target youth exposure to cigarette advertising. To be sure,
Members of this Court have debated the precise meaning of "based on
smoking and health," see
Cipollone, supra, at 529, n. 7
(plurality opinion), but we cannot agree with the Attorney
General's narrow construction of the phrase.
As Congress enacted the current pre-emption provision, Congress
did not concern itself solely with health warnings for cigarettes.
In the 1969 amendments, Congress not only
548
enhanced its scheme to warn the public about the hazards of
cigarette smoking, but also sought to protect the public, including
youth, from being inundated with images of cigarette smoking in
advertising. In pursuit of the latter goal, Congress banned
electronic media advertising of cigarettes. And to the extent that
Congress contemplated additional targeted regulation of cigarette
advertising, it vested that authority in the FTC.
The context in which Congress crafted the current preemption
provision leads us to conclude that Congress prohibited state
cigarette advertising regulations motivated by concerns about
smoking and health. Massachusetts has attempted to address the
incidence of underage cigarette smoking by regulating advertising,
see 940 Code of Mass. Regs. § 21.01 (2000), much like Congress' ban
on cigarette advertising in electronic media. At bottom, the
concern about youth exposure to cigarette advertising is
intertwined with the concern about cigarette smoking and health.
Thus the Attorney General's attempt to distinguish one concern from
the other must be rejected.
The Attorney General next claims that the State's outdoor and
point-of-sale advertising regulations for cigarettes are not
pre-empted because they govern the location, and not the content,
of advertising. This is also JUSTICE STEVENS' main point with
respect to pre-emption.
Post, at 595 (opinion concurring in
part, concurring in judgment in part, and dissenting in part).
The content versus location distinction has some surface appeal.
The pre-emption provision immediately follows the section of the
FCLAA that prescribes warnings. See 15 U. S. C. §§ 1333, 1334. The
pre-emption provision itself refers to cigarettes "labeled in
conformity with" the statute. § 1334(b). But the content/location
distinction cannot be squared with the language of the pre-emption
provision, which reaches
all "requirements" and
"prohibitions" "imposed under State law." A distinction between the
content
549
of advertising and the location of advertising in the FCLAA also
cannot be reconciled with Congress' own location-based restriction,
which bans advertising in electronic media, but not elsewhere. See
§ 1335. We are not at liberty to pick and choose which provisions
in the legislative scheme we will consider, see
post, at
596, n. 5 (opinion of STEVENS, J.), but must examine the FCLAA as a
whole.
Moreover, any distinction between the content and location of
cigarette advertising collapses once the implications of that
approach are fully considered. At oral argument, the Attorney
General was pressed to explain what types of state regulations of
cigarette advertising, in his view, are preempted by the FCLAA. The
Attorney General maintained that a state law that required
cigarette retailers to remove the word "tobacco" from
advertisements, or required cigarette billboards to be blank, would
be pre-empted if it were a regulation of "health-related content."
Tr. of Oral Arg. 41, 42. The Attorney General also maintained,
however, that a complete ban on all cigarette advertising would not
be preempted because Congress did not intend to invade local
control over zoning.
Id., at 42-44. The latter position
clearly follows from the factual distinction between content and
location, but it finds no support in the text of the FCLAA's
pre-emption provision. We believe that Congress wished to ensure
that "a State could not do through negative mandate (e. g., banning
all cigarette advertising) that which it already was forbidden to
do through positive mandate (e. g., mandating particular cautionary
statements)."
Cipollone, 505 U. S., at 539 (Blackmun, J.,
joined by KENNEDY and SOUTER, JJ., concurring in part and
dissenting in part). See also
Vango Media, Inc. v.
New
York, 34 F.3d
68 (CA2 1994) (holding pre-empted a regulation that
required one public health message for every four cigarette
advertisements).
JUSTICE STEVENS,
post, at 595-598, maintains that
Congress did not intend to displace state regulation of the
location of cigarette advertising. There is a critical
distinction,
550
however, between generally applicable zoning regulations, see
infra, at 551-552, and regulations targeting cigarette
advertising. The latter type of regulation, which is inevitably
motivated by concerns about smoking and health, squarely
contradicts the FCLAA. The FCLAA's comprehensive warnings,
advertising restrictions, and pre-emption provision would make
little sense if a State or locality could simply target and ban all
cigarette advertising.
JUSTICE STEVENS finds it ironic that we conclude that "federal
law precludes States and localities from protecting children from
dangerous products within 1,000 feet of a school," in light of our
prior conclusion that the "Federal Government lacks the
constitutional authority to impose a similarly motivated ban" in
United States v.
Lopez, 514 U. S. 549 (1995).
Post, at 598-599, n. 8. Our holding is not as broad as
JUSTICE STEVENS states; we hold only that the FCLAA pre-empts state
regulations targeting cigarette advertising. States remain free to
enact generally applicable zoning regulations, and to regulate
conduct with respect to cigarette use and sales.
Infra, at
552. The reference to
Lopez is also inapposite. In
Lopez, we held that Congress exceeded the limits of its
Commerce Clause power in the Gun-Free School Zones Act of 1990,
which made it a federal crime to possess a firearm in a school
zone. 514 U. S., at 553-568. These cases, by contrast, concern the
Supremacy Clause and the doctrine of pre-emption as applied in a
case where Congress expressly precluded certain state regulations
of cigarette advertising. Massachusetts did not raise a
constitutional challenge to the FCLAA, and we are not confronted
with whether Congress exceeded its constitutionally delegated
authority in enacting the FCLAA.
In sum, we fail to see how the FCLAA and its pre-emption
provision permit a distinction between the specific concern about
minors and cigarette advertising and the more general concern about
smoking and health in cigarette advertising, especially in light of
the fact that Congress crafted a legisla-
551
tive solution for those very concerns. We also conclude that a
distinction between state regulation of the location as opposed to
the content of cigarette advertising has no foundation in the text
of the pre-emption provision. Congress pre-empted state cigarette
advertising regulations like the Attorney General's because they
would upset federallegislative choices to require specific warnings
and to impose the ban on cigarette advertising in electronic media
in order to address concerns about smoking and health. Accordingly,
we hold that the Attorney General's outdoor and point-ofsale
advertising regulations targeting cigarettes are preempted by the
FCLAA.
C
Although the FCLAA prevents States and localities from imposing
special requirements or prohibitions "based on smoking and health"
"with respect to the advertising or promotion" of cigarettes, that
language still leaves significant power in the hands of States to
impose generally applicable zoning regulations and to regulate
conduct. As we noted in
Cipollone, "each phrase within [the
provision] limits the universe of [state action] pre-empted by the
statute." 505 U. S., at 524 (plurality opinion).
For instance, the FCLAA does not restrict a State or locality's
ability to enact generally applicable zoning restrictions. We have
recognized that state interests in traffic safety and esthetics may
justify zoning regulations for advertising. See
Metromedia,
Inc. v.
San Diego, 453 U. S. 490, 507-508
(1981). See also
St. Louis Poster Advertising Co. v.
St.
Louis, 249 U. S.
269, 274 (1919);
Thomas Cusack Co. v.
Chicago,
242 U. S. 526,
529-531 (1917). Although Congress has taken into account the unique
concerns about cigarette smoking and health in advertising, there
is no indication that Congress intended to displace local community
interests in general regulations of the location of billboards or
large marquee advertising, or that Congress intended cigarette
advertisers to be afforded special treatment in that regard.
Re-
552
strictions on the location and size of advertisements that apply
to cigarettes on equal terms with other products appear to be
outside the ambit of the pre-emption provision. Such restrictions
are not "based on smoking and health."
The FCLAA also does not foreclose all state regulation of
conduct as it relates to the sale or use of cigarettes. The FCLAA's
pre-emption provision explicitly governs state regulations of
"advertising or promotion." * Accordingly, the FCLAA does not
pre-empt state laws prohibiting cigarette sales to minors. To the
contrary, there is an established congressional policy that
supports such laws; Congress has required States to prohibit
tobacco sales to minors as a condition of receiving federal block
grant funding for substance abuse treatment activities. 106 Stat.
394, 388, 42 U. S. C. §§ 300x-26(a)(1), 300x-21.
In Massachusetts, it is illegal to sell or distribute tobacco
products to persons under the age of 18. Mass. Gen. Laws, ch. 270,
§ 6 (2000). Having prohibited the sale and distribution of tobacco
products to minors, the State may prohibit common inchoate offenses
that attach to criminal conduct, such as solicitation, conspiracy,
and attempt. Cf.
Central Hudson Gas &
Elec. Corp.
v.
Public Servo Comm'n of New York, 447 U. S., at 563-564;
Carey v.
Population Servs. Int'l, 431 U. S. 678, 701
(1977);
Virginia Bd. of Pharmacy v.
Virginia Citizens
Consumer Council, Inc., 425 U. S. 748, 772
(1976); 60 Fed. Reg. 41330-41332 (1995) (citing evidence that
industry may be attempting to induce individuals under 18 to smoke
cigarettes). States and localities also have at their disposal
other means of regulating conduct to ensure that minors do not
obtain cigarettes. See Part III-D,
infra.
*The Senate Report explained that the pre-emption provision
"would in no way affect the power of any State or political
subdivision of any State with respect to the taxation or the sale
of cigarettes to minors, or the prohibition of smoking in public
buildings, or similar police regulations. It is limited entirely to
State or local requirements or prohibitions in the advertising of
cigarettes." S. Rep. No. 91-566, p. 12 (1969).
553
D
The smokeless tobacco petitioners argue that if the State's
outdoor and point-of-sale advertising regulations for cigarettes
are pre-empted, then the same advertising regulations with respect
to smokeless tobacco must be invalidated because they cannot be
severed from the cigarette provisions. Brief for Petitioner U. S.
Smokeless Tobacco Co. in Nos. 00596 and 00-597, p. 4, n. 5. The
District Court did not reach the severability issue with respect to
the advertising provisions that are before this Court. 76 F. Supp.
2d, at 134, n. 11. The Court of Appeals also did not reach
severability because that court likewise concluded that the
cigarette advertising regulations were not pre-empted. 218 F. 3d,
at 37, n. 3. We decline to reach an issue that was not decided
below.
National Collegiate Athletic Assn. v.
Smith,
525 U. S. 459, 470 (1999).
III
By its terms, the FCLAA's pre-emption provision only applies to
cigarettes. Accordingly, we must evaluate the smokeless tobacco and
cigar petitioners' First Amendment challenges to the State's
outdoor and point-of-sale advertising regulations. The cigarette
petitioners did not raise a pre-emption challenge to the sales
practices regulations. Thus, we must analyze the cigarette as well
as the smokeless tobacco and cigar petitioners' claim that certain
sales practices regulations for tobacco products violate the First
Amendment.
A
For over 25 years, the Court has recognized that commercial
speech does not fall outside the purview of the First Amendment.
See,
e. g., Virginia Bd. of Pharmacy, supra, at 762.
Instead, the Court has afforded commercial speech a measure of
First Amendment protection" 'commensurate' " with its position in
relation to other constitutionally guaranteed expression. See,
e. g., Florida Bar v.
Went For It, Inc.,
554
515 U. S. 618,
623 (1995) (quoting
Board of Trustees of State Univ. of N.
Y. v.
Fox, 492 U. S. 469, 477
(1989)). In recognition of the "distinction between speech
proposing a commercial transaction, which occurs in an area
traditionally subject to government regulation, and other varieties
of speech,"
Central Hudson, supra, at 562 (internal
quotation marks omitted), we developed a framework for analyzing
regulations of commercial speech that is "substantially similar" to
the test for time, place, and manner restrictions,
Board of
Trustees of State Univ. of N.
Y. v.
Fox, supra,
at 477. The analysis contains four elements:
"At the outset, we must determine whether the expression is
protected by the First Amendment. For commercial speech to come
within that provision, it at least must concern lawful activity and
not be misleading. Next, we ask whether the asserted governmental
interest is substantial. If both inquiries yield positive answers,
we must determine whether the regulation directly advances the
governmental interest asserted, and whether it is not more
extensive than is necessary to serve that interest." Central
Hudson, supra, at 566.
Petitioners urge us to reject the
Central Hudson analysis
and apply strict scrutiny. They are not the first litigants to do
so. See,
e. g., Greater New Orleans Broadcasting Assn., Inc.
v.
United States, 527 U. S. 173, 184
(1999). Admittedly, several Members of the Court have expressed
doubts about the
Central Hudson analysis and whether it
should apply in particular cases. See,
e. g., Greater New
Orleans, supra, at 197 (THOMAS, J., concurring in judgment);
J,J,
Liquormart, Inc. v.
Rhode Island, 517 U. S. 484, 501,
510-514 (1996) (joint opinion of STEVENS, KENNEDY, and GINSBURG,
JJ.); id., at 517 (SCALIA, J., concurring in part and concurring in
judgment); id., at 518 (THOMAS, J., concurring in part and
concurring in judgment). But here, as in
Greater New
Orleans, we see "no need to break new ground.
Central
Hudson, as
555
applied in our more recent commercial speech cases, provides an
adequate basis for decision." 527 U. S., at 184.
Only the last two steps of
Central Hudson's four-part
analysis are at issue here. The Attorney General has assumed for
purposes of summary judgment that petitioners' speech is entitled
to First Amendment protection. 218 F. 3d, at 43; 84 F. Supp. 2d, at
185-186. With respect to the second step, none of the petitioners
contests the importance of the State's interest in preventing the
use of tobacco products by minors. Brief for Petitioners Lorillard
Tobacco Co. et al. in No. 00-596, p. 41; Brief for Petitioner U. S.
Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 16; Brief for
Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, p. 8.
The third step of
Central Hudson concerns the
relationship between the harm that underlies the State's interest
and the means identified by the State to advance that interest. It
requires that
"the speech restriction directly and materially advanc[e] the
asserted governmental interest. 'This burden is not satisfied by
mere speculation or conjecture; rather, a governmental body seeking
to sustain a restriction on commercial speech must demonstrate that
the harms it recites are real and that its restriction will in fact
alleviate them to a material degree.'" Greater New Orleans,
supra, at 188 (quoting Edenfield v. Fane,
507 U. S. 761,
770-771 (1993)).
We do not, however, require that "empirical data come ...
accompanied by a surfeit of background information .... [W]e have
permitted litigants to justify speech restrictions by reference to
studies and anecdotes pertaining to different locales altogether,
or even, in a case applying strict scrutiny, to justify
restrictions based solely on history, consensus, and 'simple common
sense.'"
Florida Bar v.
Went For It, Inc., supra, at
628 (citations and internal quotation marks omitted).
556
The last step of the
Central Hudson analysis
"complements" the third step, "asking whether the speech
restriction is not more extensive than necessary to serve the
interests that support it."
Greater New Orleans, supra, at
188. We have made it clear that "the least restrictive means" is
not the standard; instead, the case law requires a reasonable "'fit
between the legislature's ends and the means chosen to accomplish
those ends, ... a means narrowly tailored to achieve the desired
objective.'"
Went For It, Inc., supra, at 632 (quoting
Board of Trustees of State Univ. of N.
Y. v.
Fox,
supra, at 480). Focusing on the third and fourth steps of the
Central Hudson analysis, we first address the outdoor
advertising and point-of-sale advertising regulations for smokeless
tobacco and cigars. We then address the sales practices regulations
for all tobacco products.
B
The outdoor advertising regulations prohibit smokeless tobacco
or cigar advertising within a 1,000-foot radius of a school or
playground. 940 Code of Mass. Regs. §§ 21.04(5)(a), 22.06(5)(a)
(2000). The District Court and Court of Appeals concluded that the
Attorney General had identified a real problem with underage use of
tobacco products, that limiting youth exposure to advertising would
combat that problem, and that the regulations burdened no more
speech than necessary to accomplish the State's goal. 218 F. 3d, at
44-53; 84 F. Supp. 2d, at 186-193. The smokeless tobacco and cigar
petitioners take issue with all of these conclusions.
1
The smokeless tobacco and cigar petitioners contend that the
Attorney General's regulations do not satisfy
Central
Hudson's third step. They maintain that although the Attorney
General may have identified a problem with underage cigarette
smoking, he has not identified an equally severe problem with
respect to underage use of smokeless tobacco
557
or cigars. The smokeless tobacco petitioner emphasizes the "lack
of parity" between cigarettes and smokeless tobacco. Brief for
Petitioner U. S. Smokeless Tobacco Co. in Nos. 00596 and 00-597, at
19; Reply Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos.
00-596 and 00-597, pp. 4, lOll. The cigar petitioners catalog a
list of differences between cigars and other tobacco products,
including the characteristics of the products and marketing
strategies. Brief for Petitioners Altadis U. S. A. Inc. et al. in
No. 00-597, at 9-11. The petitioners finally contend that the
Attorney General cannot prove that advertising has a causal link to
tobacco use such that limiting advertising will materially
alleviate any problem of underage use of their products. 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.
00-597, at 9-16.
In previous cases, we have acknowledged the theory that product
advertising stimulates demand for products, while suppressed
advertising may have the opposite effect. See
Rubin, 514 U.
S., at 487;
United States v.
Edge Broadcasting Co.,
509 U. S. 418,
434 (1993);
Central Hudson, 447 U. S., at 568-569. The
Attorney General cites numerous studies to support this theory in
the case of tobacco products.
The Attorney General relies in part on evidence gathered by the
Food and Drug Administration (FDA) in its attempt to regulate the
advertising of cigarettes and smokeless tobacco. See Regulations
Restricting the Sale and Distribution of Cigarettes and Smokeless
Tobacco Products to Protect Children and Adolescents, FDA Proposed
Rule, 60 Fed. Reg. 41314 (1995); Regulations Restricting the Sale
and Distribution of Cigarettes and Smokeless Tobacco to Protect
Children and Adolescents, FDA Final Rule, 61 Fed. Reg. 44396
(1996). The FDA promulgated the advertising regulations after
finding that the period prior to adulthood is when an overwhelming
majority of Americans first decide to use tobacco products, and
that advertising plays a crucial
558
role in that decision.
Id., at 44398-44399. We later held
that the FDA lacks statutory authority to regulate tobacco
products. See
FDA v.
Brown &
Williamson
Tobacco Corp., 529 U. S. 120 (2000).
Nevertheless, the Attorney General relies on the FDA's proceedings
and other studies to support his decision that advertising affects
demand for tobacco products. Cf.
Erie v.
Pap's A. M.,
529 U. S. 277,
296 (2000) (plurality opinion) (cities and localities may rely on
evidence from other jurisdictions to demonstrate harmful secondary
effects of adult entertainment and to justify regulation);
Barnes v.
Glen Theatre, Inc., 501 U. S. 560, 583-584
(1991) (SOUTER, J., concurring in judgment) (same);
Renton
v.
Playtime Theatres, Inc., 475 U. S. 41, 50-52 (1986)
(same). See also
Nixon v.
Shrink Missouri Government
PAC, 528 U. S.
377, 393, and n. 6 (2000) (discussing evidence of corruption
and the appearance of corruption in campaign finance).
In its rulemaking proceeding, the FDA considered several studies
of tobacco advertising and trends in the use of various tobacco
products. The Surgeon General's report and the Institute of
Medicine's report found that "there is sufficient evidence to
conclude that advertising and labeling play a significant and
important contributory role in a young person's decision to use
cigarettes or smokeless tobacco products." 60 Fed. Reg. 41332. See
also Pierce et al., Tobacco Industry Promotion of Cigarettes and
Adolescent Smoking, 279 JAMA 511, 514 (1998).
For instance, children smoke fewer brands of cigarettes than
adults, and those choices directly track the most heavily
advertised brands, unlike adult choices, which are more dispersed
and related to pricing. FDA Proposed Rule, 60 Fed. Reg. 41332.
Another study revealed that 72% of 6 year olds and 52% of children
ages 3 to 6 recognized "Joe Camel," the cartoon anthropomorphic
symbol of R. J. Reynolds' Camel brand cigarettes.
Id., at
41333. After the introduction of Joe Camel, Camel cigarettes' share
of the youth market rose from 4% to 13%.
Id., at 41330. The
FDA also identified
559
trends in tobacco consumption among certain populations, such as
young women, that correlated to the introduction and marketing of
products geared toward that population.
Id., at 41333.
The FDA also made specific findings with respect to smokeless
tobacco. The FDA concluded that "[t]he recent and very large
increase in the use of smokeless tobacco products by young people
and the addictive nature of these products has persuaded the agency
that these products must be included in any regulatory approach
that is designed to help prevent future generations of young people
from becoming addicted to nicotine-containing tobacco products."
Id., at 41318. Studies have analyzed smokeless tobacco use
by young people, discussing trends based on gender, school grade,
and locale. See,
e. g., Boyd et al., Use of Smokeless
Tobacco among Children and Adolescents in the United States, 16
Preventative Medicine 402-418 (1987), Record, Doc. No. 38, Exh.
63.
Researchers tracked a dramatic shift in patterns of smokeless
tobacco use from older to younger users over the past 30 years.
See,
e. g., FDA Proposed Rule, 60 Fed. Reg. 41317; Tomar,
Giovano, & Erickson, Smokeless tobacco brand preference and
brand switching among US adolescents and young adults, 4 Tobacco
Control 67 (1995), Record, Doc. No. 38, Exh. 62; Department of
Health and Human Services, Preventing Tobacco Use Among Young
People: A Report of the Surgeon General 163 (1994), Record, Doc.
No. 36, Exh. 1. In particular, the smokeless tobacco industry
boosted sales tenfold in the 1970's and 1980's by targeting young
males. FDA Proposed Rule, 60 Fed. Reg. 41331. See also National
Cancer Institute, Cigars: Health Effects and Trends, Smoking and
Tobacco Control Monograph No.9, p. 16 (1998), Record, Doc. No. 39,
Exh. 67. Another study documented the targeting of youth through
smokeless tobacco sales and advertising techniques. Ernster,
Advertising and Promotion of Smokeless Tobacco Products, National
Cancer Institute
560
Monograph No.8, pp. 87-93 (1989), Record, Doc. No. 38,
Exh.66.
The Attorney General presents different evidence with respect to
cigars. There was no data on underage cigar use prior to 1996
because the behavior was considered "uncommon enough not to be
worthy of examination." Smoking and Tobacco Control Monograph No.9,
at 13; FTC Report to Congress: Cigar Sales and Advertising and
Promotional Expenses for Calendar Years 1996 and 1997, p. 9 (1999),
Record, Doc. No. 39, Exh. 71. In 1995, the FDA decided not to
include cigars in its attempted regulation of tobacco product
advertising, explaining that "the agency does not currently have
sufficient evidence that these products are drug delivery devices
.... FDA has focused its investigation of its authority over
tobacco products on cigarettes and smokeless tobacco products, and
not on pipe tobacco or cigars, because young people predominantly
use cigarettes and smokeless tobacco products." 60 Fed. Reg.
41322.
More recently, however, data on youth cigar use has emerged. The
National Cancer Institute concluded in its 1998 Monograph that the
rate of cigar use by minors is increasing and that, in some States,
the cigar use rates are higher than the smokeless tobacco use rates
for minors. Smoking and Tobacco Control Monograph No.9, at 19,
42-51. In its 1999 Report to Congress, the FTC concluded that
"substantial numbers of adolescents are trying cigars." FTC Report
to Congress, at 9. See also Department of Health and Human
Services, Office of Inspector General, Youth Use of Cigars:
Patterns of Use and Perceptions of Risk (1999), Record, Doc. No.
39, Exh. 78.
Studies have also demonstrated a link between advertising and
demand for cigars. After Congress recognized the power of images in
advertising and banned cigarette advertising in electronic media,
television advertising of small cigars "increased dramatically in
1972 and 1973," "filled the void left by cigarette advertisers,"
and "sales ... soared."
561
Smoking and Tobacco Control Monograph No.9, at 24. In 1973,
Congress extended the electronic media advertising ban for
cigarettes to little cigars. Little Cigar Act, Pub. L. 93-109, § 3,
87 Stat. 352, as amended, 15 U. S. C. § 1335. In the 1990's, cigar
advertising campaigns triggered a boost in sales. Smoking and
Tobacco Control Monograph No.9, at 215.
Our review of the record reveals that the Attorney General has
provided ample documentation of the problem with underage use of
smokeless tobacco and cigars. In addition, we disagree with
petitioners' claim that there is no evidence that preventing
targeted campaigns and limiting youth exposure to advertising will
decrease underage use of smokeless tobacco and cigars. On this
record and in the posture of summary judgment, we are unable to
conclude that the Attorney General's decision to regulate
advertising of smokeless tobacco and cigars in an effort to combat
the use of tobacco products by minors was based on mere
"speculation [and] conjecture."
Edenfield v.
Fane,
507 U. S., at 770.
2
Whatever the strength of the Attorney General's evidence to
justify the outdoor advertising regulations, however, we conclude
that the regulations do not satisfy the fourth step of the
Central Hudson analysis. The final step of the
Central
Hudson analysis, the "critical inquiry in this case," requires
a reasonable fit between the means and ends of the regulatory
scheme. 447 U. S., at 569. The Attorney General's regulations do
not meet this standard. The broad sweep of the regulations
indicates that the Attorney General did not "carefully calculat[e]
the costs and benefits associated with the burden on speech
imposed" by the regulations.
Cincinnati v.
Discovery
Network, Inc., 507 U. S. 410, 417 (1993)
(internal quotation marks omitted).
The outdoor advertising regulations prohibit any smokeless
tobacco or cigar advertising within 1,000 feet of schools
562
or playgrounds. In the District Court, petitioners maintained
that this prohibition would prevent advertising in 87% to 91 % of
Boston, Worcester, and Springfield, Massachusetts. 84 F. Supp. 2d,
at 191. The 87% to 91% figure appears to include not only the
effect of the regulations, but also the limitations imposed by
other generally applicable zoning restrictions. See App. 161-167.
The Attorney General disputed petitioners' figures but "concede[d]
that the reach of the regulations is substantial." 218 F. 3d, at
50. Thus, the Court of Appeals concluded that the regulations
prohibit advertising in a substantial portion of the major
metropolitan areas of Massachusetts.
Ibid.
The substantial geographical reach of the Attorney General's
outdoor advertising regulations is compounded by other factors.
"Outdoor" advertising includes not only advertising located outside
an establishment, but also advertising inside a store if that
advertising is visible from outside the store. The regulations
restrict advertisements of any size and the term advertisement also
includes oral statements. 940 Code of Mass. Regs. §§ 21.03, 22.03
(2000).
In some geographical areas, these regulations would constitute
nearly a complete ban on the communication of truthful information
about smokeless tobacco and cigars to adult consumers. The breadth
and scope of the regulations, and the process by which the Attorney
General adopted the regulations, do not demonstrate a careful
calculation of the speech interests involved.
First, the Attorney General did not seem to consider the impact
of the 1,000-foot restriction on commercial speech in major
metropolitan areas. The Attorney General apparently selected the
1,000-foot distance based on the FDA's decision to impose an
identical 1,000-foot restriction when it attempted to regulate
cigarette and smokeless tobacco advertising. See FDA Final Rule, 61
Fed. Reg. 44399; Brief for Respondents 45, and n. 23. But the FDA's
1,000-foot regulation was not an adequate basis for the Attorney
Gen-
563
eral to tailor the Massachusetts regulations. The degree to
which speech is suppressed-or alternative avenues for speech remain
available-under a particular regulatory scheme tends to be case
specific. See,
e. g.,
Renton, 475 U. S., at 53-54.
And a case specific analysis makes sense, for although a State or
locality may have common interests and concerns about underage
smoking and the effects of tobacco advertisements, the impact of a
restriction on speech will undoubtedly vary from place to place.
The FDA's regulations would have had widely disparate effects
nationwide. Even in Massachusetts, the effect of the Attorney
General's speech regulations will vary based on whether a locale is
rural, suburban, or urban. The uniformly broad sweep of the
geographical limitation demonstrates a lack of tailoring.
In addition, the range of communications restricted seems unduly
broad. For instance, it is not clear from the regulatory scheme why
a ban on oral communications is necessary to further the State's
interest. Apparently that restriction means that a retailer is
unable to answer inquiries about its tobacco products if that
communication occurs outdoors. Similarly, a ban on all signs of any
size seems ill suited to target the problem of highly visible
billboards, as opposed to smaller signs. To the extent that studies
have identified particular advertising and promotion practices that
appeal to youth, tailoring would involve targeting those practices
while permitting others. As crafted, the regulations make no
distinction among practices on this basis.
The Court of Appeals recognized that the smokeless tobacco and
cigar petitioners' concern about the amount of speech restricted
was "valid," but reasoned that there was an "obvious connection to
the state's interest in protecting minors." 218 F. 3d, at 50. Even
on the premise that Massachusetts has demonstrated a connection
between the outdoor advertising regulations and its substantial
interest in preventing underage tobacco use, the question of
tailoring re-
564
mains. The Court of Appeals failed to follow through with an
analysis of the countervailing First Amendment interests.
The State's interest in preventing underage tobacco use is
substantial, and even compelling, but it is no less true that the
sale and use of tobacco products by adults is a legal activity. We
must consider that tobacco retailers and manufacturers have an
interest in conveying truthful information about their products to
adults, and adults have a corresponding interest in receiving
truthful information about tobacco products. In a case involving
indecent speech on the Internet we explained that "the governmental
interest in protecting children from harmful materials ... does not
justify an unnecessarily broad suppression of speech addressed to
adults."
Reno v.
American Civil Liberties Union,
521 U. S. 844,
875 (1997) (citations omitted). See,
e. g., Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 74 (1983)
("The level of discourse reaching a mailbox simply cannot be
limited to that which would be suitable for a sandbox");
Butler v.
Michigan, 352 U. S. 380, 383 (1957)
("The incidence of this enactment is to reduce the adult population
... to reading only what is fit for children"). As the State
protects children from tobacco advertisements, tobacco
manufacturers and retailers and their adult consumers still have a
protected interest in communication. Cf.
American Civil
Liberties Union, supra, at 886-889 (O'CONNOR, J., concurring in
judgment in part and dissenting in part) (discussing the creation
of "adult zones" on the Internet).
In some instances, Massachusetts' outdoor advertising
regulations would impose particularly onerous burdens on speech.
For example, we disagree with the Court of Appeals' conclusion that
because cigar manufacturers and retailers conduct a limited amount
of advertising in comparison to other tobacco products, "the
relative lack of cigar advertising also means that the burden
imposed on cigar advertisers is correspondingly small." 218 F. 3d,
at 49. If some retailers have relatively small advertising budgets,
and use
565
few avenues of communication, then the Attorney General's
outdoor advertising regulations potentially place a greater, not
lesser, burden on those retailers' speech. Furthermore, to the
extent that cigar products and cigar advertising differ from that
of other tobacco products, that difference should inform the
inquiry into what speech restrictions are necessary.
In addition, a retailer in Massachusetts may have no means of
communicating to passersby on the street that it sells tobacco
products because alternative forms of advertisement, like
newspapers, do not allow that retailer to propose an instant
transaction in the way that onsite advertising does. The ban on any
indoor advertising that is visible from the outside also presents
problems in establishments like convenience stores, which have
unique security concerns that counsel in favor of full visibility
of the store from the outside. It is these sorts of considerations
that the Attorney General failed to incorporate into the regulatory
scheme.
We conclude that the Attorney General has failed to show that
the outdoor advertising regulations for smokeless tobacco and
cigars are not more extensive than necessary to advance the State's
substantial interest in preventing underage tobacco use. JUSTICE
STEVENS urges that the Court remand the case for further
development of the factual record.
Post, at 601-603. We
believe that a remand is inappropriate in these cases because the
State had ample opportunity to develop a record with respect to
tailoring (as it had to justify its decision to regulate
advertising), and additional evidence would not alter the nature of
the scheme before the Court. See
Greater New Orleans, 527 U.
S., at 189, n. 6.
A careful calculation of the costs of a speech regulation does
not mean that a State must demonstrate that there is no incursion
on legitimate speech interests, but a speech regulation cannot
unduly impinge on the speaker's ability to propose a commercial
transaction and the adult listener's opportunity to obtain
information about products. After
566
reviewing the outdoor advertising regulations, we find the
calculation in these cases insufficient for purposes of the First
Amendment.
C
Massachusetts has also restricted indoor, point-of-sale
advertising for smokeless tobacco and cigars. Advertising cannot be
"placed lower than five feet from the floor of any retail
establishment which is located within a one thousand foot radius
of" any school or playground. 940 Code of Mass. Regs. §§
21.04(5)(b), 22.06(5)(b) (2000). The District Court invalidated
these provisions, concluding that the Attorney General had not
provided a sufficient basis for regulating indoor advertising. 84
F. Supp. 2d, at 192-193, 195. The Court of Appeals reversed. 218 F.
3d, at 50-51. The court explained: "We do have some misgivings
about the effectiveness of a restriction that is based on the
assumption that minors under five feet tall will not, or will less
frequently, raise their view above eye-level, but we find that such
[a] determination falls within that range of reasonableness in
which the Attorney General is best suited to pass judgment."
Id., at 51.
We conclude that the point-of-sale advertising regulations fail
both the third and fourth steps of the
Central Hudson
analysis. A regulation cannot be sustained if it "'provides only
ineffective or remote support for the government's purpose,'"
Edenfield, 507 U. S., at 770 (quoting
Central Hudson,
447 U. S., at 564), or if there is "little chance" that the
restriction will advance the State's goal,
Greater New Orleans,
supra, at 193 (internal quotation marks omitted). As outlined
above, the State's goal is to prevent minors from using tobacco
products and to curb demand for that activity by limiting youth
exposure to advertising. The 5-foot rule does not seem to advance
that goal. Not all children are less than 5 feet tall, and those
who are certainly have the ability to look up and take in their
surroundings.
567
By contrast to JUSTICE STEVENS,
post, at 604-605, we do
not believe this regulation can be construed as a mere regulation
of conduct under
United States v.
O'Brien, 391 U. S. 367 (1968). To
qualify as a regulation of communicative action governed by the
scrutiny outlined in
O'Brien, the State's regulation must be
unrelated to expression.
Texas v.
Johnson, 491 U. S. 397, 403
(1989). See also
Erie v.
Pap's A. M., 529 U. S., at
289-296 (plurality opinion). Here, Massachusetts' height
restriction is an attempt to regulate directly the communicative
impact of indoor advertising.
Massachusetts may wish to target tobacco advertisements and
displays that entice children, much like floor-level candy displays
in a convenience store, but the blanket height restriction does not
constitute a reasonable fit with that goal. The Court of Appeals
recognized that the efficacy of the regulation was questionable,
but decided that, "[i]n any event, the burden on speech imposed by
the provision is very limited." 218 F. 3d, at 51. There is no
de
minimis exception for a speech restriction that lacks
sufficient tailoring or justification. We conclude that the
restriction on the height of indoor advertising is invalid under
Central Hudson's third and fourth prongs.
D
The Attorney General also promulgated a number of regulations
that restrict sales practices by cigarette, smokeless tobacco, and
cigar manufacturers and retailers. Among other restrictions, the
regulations bar the use of self-service displays and require that
tobacco products be placed out of the reach of all consumers in a
location accessible only to salespersons. 940 Code of Mass. Regs.
§§ 21.04(2)(c)-(d), 22.06(2)(c)-(d) (2000). The cigarette
petitioners do not challenge the sales practices regulations on
pre-emption grounds. Brief for Petitioners Lorillard Tobacco Co. et
al. in No. 00-596, at 5, n. 2. Two of the cigarette petitioners
(Brown & Williamson Tobacco Corporation and Lorillard Tobacco
Company), petitioner U. S. Smokeless Tobacco Com-
568
pany, and the cigar petitioners challenge the sales practices
regulations on First Amendment grounds. The cigar petitioners
additionally challenge a provision that prohibits sampling or
promotional giveaways of cigars or little cigars. 940 Code of Mass.
Regs. § 22.06(1)(a) (2000).
The District Court concluded that these restrictions implicate
no cognizable speech interest, 84 F. Supp. 2d, at 195-196, but the
Court of Appeals did not fully adopt that reasoning. The Court of
Appeals recognized that self-service displays "often do have some
communicative commercial function," but noted that the restriction
in the regulations "is not on speech, but rather on the physical
location of actual tobacco products." 218 F. 3d, at 53. The court
reasoned that nothing in the regulations would prevent the display
of empty tobacco product containers, so long as no actual tobacco
product was displayed, much like movie jackets at a video store.
Ibid. With respect to cigar products, the court observed
that retailers traditionally allow access to those products, so
that the consumer may make a selection on the basis of a number of
objective and subjective factors including the aroma and feel of
the cigars.
Ibid. Even assuming a speech interest, however,
the court concluded that the regulations were narrowly tailored to
serve the State's substantial interest in preventing access to
tobacco products by minors.
Id., at 54. The court also noted
that the restrictions do not apply to adult-only establishments.
Ibid.
Petitioners devoted little of their briefing to the sales
practices regulations, and our understanding of the regulations is
accordingly limited by the parties' submissions. As we read the
regulations, they basically require tobacco retailers to place
tobacco products behind counters and require customers to have
contact with a salesperson before they are able to handle a tobacco
product.
The cigarette and smokeless tobacco petitioners contend that
"the same First Amendment principles that require invalidation of
the outdoor and indoor advertising restrictions
569
require invalidation of the display regulations at issue in this
case." Brief for Petitioners Lorillard Tobacco Co. et al. in No.
00-596, at 46, n. 7. See also Reply Brief for Petitioner U. S.
Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 12, n. 7. The
cigar petitioners contend that self-service displays for cigars
cannot be prohibited because each brand of cigar is unique and
customers traditionally have sought to handle and compare cigars at
the time of purchase. Brief for Petitioners Altadis U. S. A. Inc.
et al. in No. 00-597, at 23, n. 9; Reply Brief for Petitioners
Altadis U. S. A. Inc. et al. in No. 00-597, p. 10, n. 7.
We reject these contentions. Assuming that petitioners have a
cognizable speech interest in a particular means of displaying
their products, cf.
Cincinnati v.
Discovery Network,
Inc., 507 U. S.
410 (1993) (distribution of a magazine through newsracks),
these regulations withstand First Amendment scrutiny.
Massachusetts' sales practices provisions regulate conduct that
may have a communicative component, but Massachusetts seeks to
regulate the placement of tobacco products for reasons unrelated to
the communication of ideas. See
O'Brien, supra, at 382. See
also
Pap's A. M., 529 U. S., at 289 (plurality opinion);
id., at 310 (SOUTER, J., concurring in part and dissenting in
part);
Johnson, supra, at 403. We conclude that the State
has demonstrated a substantial interest in preventing access to
tobacco products by minors and has adopted an appropriately narrow
means of advancing that interest. See
O'Brien, supra, at
382.
Unattended displays of tobacco products present an opportunity
for access without the proper age verification required by law.
Thus, the State prohibits self-service and other displays that
would allow an individual to obtain tobacco products without direct
contact with a salesperson. It is clear that the regulations leave
open ample channels of communication. The regulations do not
significantly impede adult access to tobacco products. Moreover,
retailers have other
570
means of exercising any cognizable speech interest in the
presentation of their products. We presume that vendors may place
empty tobacco packaging on open display, and display actual tobacco
products so long as that display is only accessible to sales
personnel. As for cigars, there is no indication in the regulations
that a customer is unable to examine a cigar prior to purchase, so
long as that examination takes place through a salesperson.
The cigar petitioners also list Massachusetts' prohibition on
sampling and free giveaways among the regulations they challenge on
First Amendment grounds. See 940 Code of Mass. Regs. § 22.06(1)(a)
(2000); Brief for Petitioners Altadis U. S. A. Inc. et al. in No.
00-597, at 2. At no point in their briefs or at oral argument,
however, did the cigar petitioners argue the merits of their First
Amendment claim with respect to the sampling and giveaway
regulation. We decline to address an issue that was not
sufficiently briefed and argued before this Court. See
Northwest
Airlines, Inc. v.
County of Kent, 510 U. S. 355, 366, n. 10
(1994);
Williams v.
United States, 503 U. S. 193, 206
(1992);
Granfinanciera,
We conclude that the sales practices regulations withstand First
Amendment scrutiny. The means chosen by the State are narrowly
tailored to prevent access to tobacco products by minors, are
unrelated to expression, and leave open alternative avenues for
vendors to convey information about products and for would-be
customers to inspect products before purchase.
IV
We have observed that "tobacco use, particularly among children
and adolescents, poses perhaps the single most significant threat
to public health in the United States." FDA v.
Brown &
Williamson Tobacco Corp., 529 U. S., at 161. From a policy
perspective, it is understandable for the States to attempt to
prevent minors from using tobacco products before they reach an age
where they are capable of weighing
571
for themselves the risks and potential benefits of tobacco use,
and other adult activities. Federal law, however, places limits on
policy choices available to the States.
In these cases, Congress enacted a comprehensive scheme to
address cigarette smoking and health in advertising and pre-empted
state regulation of cigarette advertising that attempts to address
that same concern, even with respect to youth. The First Amendment
also constrains state efforts to limit advertising of tobacco
products, because so long as the sale and use of tobacco is lawful
for adults, the tobacco industry has a protected interest in
communicating information about its products and adult customers
have an interest in receiving that information.
To the extent that federal law and the First Amendment do not
prohibit state action, States and localities remain free to combat
the problem of underage tobacco use by appropriate means. The
judgment of the United States Court of Appeals for the First
Circuit is therefore affirmed in part and reversed in part, and the
cases are remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE KENNEDY, with whom JUSTICE SCALIA joins, concurring in
part and concurring in the judgment.
The obvious overbreadth of the outdoor advertising restrictions
suffices to invalidate them under the fourth part of the test in
Central Hudson Gas &
Elec. Corp. v.
Public
Servo Comm'n of N.
Y., 447 U. S. 557 (1980). As
a result, in my view, there is no need to consider whether the
restrictions satisfy the third part of the test, a proposition
about which there is considerable doubt. Cf.
post, at
583-584 (THOMAS, J., concurring in part and concurring in
judgment). N either are we required to consider whether
Central
Hudson should be retained in the face of the substantial
objections that can be made to it. See
post, at 574-582
(opinion of THOMAS, J.). My continuing concerns that the test
gives
572
insufficient protection to truthful, nonmisleading commercial
speech require me to refrain from expressing agreement with the
Court's application of the third part of
Central Hudson.
See,
e. g., J,J,
Liquormart, Inc. v.
Rhode Island,
517 U. S. 484, 501-504 (1996) (opinion of STEVENS, J., joined
by KENNEDY and GINSBURG, JJ.). With the exception of Part III-B-l,
then, I join the opinion of the Court.
JUSTICE THOMAS, concurring in part and concurring in the
judgment.
I join the opinion of the Court (with the exception of Part
III-B-l) because I agree that the Massachusetts cigarette
advertising regulations are pre-empted by the Federal Cigarette
Labeling and Advertising Act, 15 U. S. C. § 1331
et seq. I
also agree with the Court's disposition of the First Amendment
challenges to the other regulations at issue here, and I share the
Court's view that the regulations fail even the intermediate
scrutiny of
Central Hudson Gas &
Elec. Corp. v.
Public Servo Comm'n of N.
Y., 447 U. S. 557 (1980). At
the same time, I continue to believe that when the government seeks
to restrict truthful speech in order to suppress the ideas it
conveys, strict scrutiny is appropriate, whether or not the speech
in question may be characterized as "commercial." See J,J,
Liquormart, Inc. v.
Rhode Island, 517 U. S. 484, 518
(1996) (THOMAS, J., concurring in part and concurring in judgment).
I would subject all of the advertising restrictions to strict
scrutiny and would hold that they violate the First Amendment.
I
At the heart of this litigation is a Massachusetts regulation
that imposes a sweeping ban on speech about tobacco products. 940
Code of Mass. Regs. § 21.04(5) (2000), which governs cigarettes and
smokeless tobacco, and § 22.06(5), which governs cigars, prohibit
all outdoor advertising, all indoor advertising that can be seen
from outdoors, and all point-ofsale advertising (even if not
visible from outdoors) that is
573
lower than five feet from the floor.1 These restrictions are
superficially limited in their geographic scope: They apply only
within 1,000 feet of "any public playground, playground area in a
public park, elementary school or secondary school." § 21.04(5)(a).
But the Court of Appeals acknowledged that the zone of prohibition
covers as much as 90 percent of the three largest cities in
Massachusetts,
Consolidated Cigar Corp. v.
Reilly,
218 F.3d
30, 50
(CA1 2000), so the practical effect is little
different from that of a total ban. Cf.
United States v.
Playboy Entertainment Group, Inc., 529 U. S. 803, 812 (2000)
("The Government's content-based burdens must satisfy the same
rigorous scrutiny as its contentbased bans").
Respondents suggest in passing that the regulations are
"zoning-type restrictions" that should receive "the intermediate
level of scrutiny traditionally associated with various forms of
'time, place, and manner' regulations." Brief for Respondents 31.
We have indeed upheld time, place, and manner regulations that
prohibited certain kinds of outdoor signs, see,
e. g., Members
of City Council of Los Angeles v.
Taxpayers for Vincent,
466 U. S. 789
(1984), and we have similarly upheld zoning laws that had the
effect of restricting certain kinds of sexually explicit
expression, see,
e. g., Renton v.
Playtime Theatres,
Inc., 475 U. S.
41 (1986). But the abiding characteristic of valid time, place,
and manner regulations is their content neutrality. See
Ward
v.
Rock Against Racism, 491 U. S. 781, 791-796
(1989). In
Vincent the city prohibited all signs on public
property, not to sup-
1 Other regulations prohibit the sale of tobacco products "in
any manner other than in a direct, face-to-face exchange," forbid
self-service displays, and require that tobacco products be
accessible only to store personnel. See §§ 21.04(2)(a), (c)-(d), §§
22.06(2)(a), (c)-(d). In addition, they prohibit sampling and
promotional giveaways. See §§21.04(1), 22.06(1). I agree with the
Court, see
ante, at 567-570, that these regulations, which
govern conduct rather than expression, should be upheld under the
test of
United States v.
O'Brien, 391 U. S. 367 (1968).
574
press the message conveyed by any of the signs, but simply to
minimize the esthetic effect of visual clutter. Likewise, the
ordinance in
Renton was aimed not at expression, but at the
"secondary effects" caused by adult businesses.
The regulations here are very different. Massachusetts is not
concerned with any "secondary effects" of tobacco advertising-it is
concerned with the advertising's primary effect, which is to induce
those who view the advertisements to purchase and use tobacco
products. Cf.
Boos v.
Barry, 485 U. S. 312, 321 (1988)
("Listeners' reactions to speech are not the type of 'secondary
effects' we referred to in
Renton"). In other words, it
seeks to suppress speech about tobacco because it objects to the
content of that speech. We have consistently applied strict
scrutiny to such contentbased regulations of speech. See,
e. g.,
Turner Broadcasting System, Inc. v.
FCC, 512 U. S. 622, 641-643
(1994).
A
There was once a time when this Court declined to give any First
Amendment protection to commercial speech. In
Valentine v.
Chrestensen, 316 U. S. 52 (1942), the
Court went so far as to say that "the Constitution imposes [no]
restraint on government as respects purely commercial advertising."
Id., at 54. That position was repudiated in
Virginia Bd.
of Pharmacy v.
Virginia Citizens Consumer Council, Inc.,
425 U. S. 748 (1976), which explained that even speech "which
does 'no more than propose a commercial transaction'" is protected
by the First Amendment.
Id., at 762 (quoting
Pittsburgh
Press Co. v.
Pittsburgh Comm'n on Human Relations,
413 U. S. 376,
385 (1973)). Since then, the Court has followed an uncertain
course-much of the uncertainty being generated by the malleability
of the four-part balancing test of
Central Hudson. See J,J,
Liquormart, 517 U. S., at 520522 (THOMAS, J., concurring in
part and concurring in judgment).
575
I have observed previously that there is no "philosophical or
historical basis for asserting that 'commercial' speech is of
'lower value' than 'noncommercial' speech."
Id., at 522.
Indeed, I doubt whether it is even possible to draw a coherent
distinction between commercial and noncommercial speech. See id.,
at 523, n. 4 (citing Kozinski & Banner, Who's Afraid of
Commercial Speech, 76 Va. L. Rev. 627 (1990)).2
It should be clear that if these regulations targeted anything
other than advertising for commercial products-if, for example,
they were directed at billboards promoting political candidates-all
would agree that the restrictions should be subjected to strict
scrutiny. In my view, an asserted government interest in keeping
people ignorant by suppressing expression "is
per se
illegitimate and can no more justify regulation of 'commercial'
speech than it can justify regulation of 'noncommercial' speech."
517 U. S., at 518 (THOMAS, J., concurring in part and concurring in
judgment). That is essentially the interest asserted here, and,
adhering to the views I expressed in J,J,
Liquormart, I
would subject the Massachusetts regulations to strict scrutiny.
B
Even if one accepts the premise that commercial speech generally
is entitled to a lower level of constitutional protection than are
other forms of speech, it does not follow that the regulations here
deserve anything less than strict scrutiny. Although we have
recognized several categories of
2 Tobacco advertising provides a good illustration. The sale of
tobacco products is the subject of considerable political
controversy, and not surprisingly, some tobacco advertisements both
promote a product and take a stand in this political debate. See
Brief for National Association of Convenience Stores as
Amicus
Curiae 20-22. A recent cigarette advertisement, for example,
displayed a brand logo next to text reading, "Why do politicians
smoke cigars while taxing cigarettes?" App. to Brief for National
Association of Convenience Stores as
Amicus Curiae 2a.
576
speech that normally receive reduced First Amendment protection,
or no First Amendment protection at all, we have never held that
the government may regulate speech within those categories in any
way that it wishes. Rather, we have said "that these areas of
speech can, consistently with the First Amendment, be regulated
because of their constitutionally proscribable content." R.
A. v: v.
St. Paul, 505 U. S. 377, 383 (1992). Even when
speech falls into a category of reduced constitutional protection,
the government may not engage in content discrimination for reasons
unrelated to those characteristics of the speech that place it
within the category. For example, a city may ban obscenity (because
obscenity is an unprotected category, see,
e. g., Roth v.
United States, 354 U. S. 476 (1957)),
but it may not ban "only those legally obscene works that contain
criticism of the city government."
R. A. V:,
supra,
at 384.
In explaining the distinction between commercial speech and
other forms of speech, we have emphasized that commercial speech is
both "more easily verifiable by its disseminator" and less likely
to be "chilled by proper regulation."
Virginia Bd., 425 U.
S., at 772, n. 24. These characteristics led us to conclude that,
in the context of commercial speech, it is "less necessary to
tolerate inaccurate statements for fear of silencing the speaker,"
and also that it is more "appropriate to require that a commercial
message appear in such a form, or include such additional
information, warnings, and disclaimers, as are necessary to prevent
its being deceptive."
Ibid. Whatever the validity of this
reasoning, it is limited to the peculiarly
commercial harms
that commercial speech can threaten-i.
e., the risk of
deceptive or misleading advertising. As we observed in
R. A.
V::
"[A] State may choose to regulate price advertising in one
industry but not in others, because the risk of fraud (one of the
characteristics of commercial speech that justifies depriving it of
full First Amendment protection) is in its view greater there. But
a State may not prohibit
577
only that commercial advertising that depicts men in a demeaning
fashion." 505 U. S., at 388-389 (citations omitted).
In J,J,
Liquormart, several Members of the Court said
much the same thing:
"[W]hen a State entirely prohibits the dissemination of
truthful, nonmisleading commercial messages for reasons unrelated
to the preservation of a fair bargaining process, there is far less
reason to depart from the rigorous review that the First Amendment
generally demands." 517 U. S., at 501 (opinion of STEVENS, J.,
joined by KENNEDY and GINSBURG, JJ.).
Whatever power the State may have to regulate commercial speech,
it may not use that power to limit the content of commercial
speech, as it has done here, "for reasons unrelated to the
preservation of a fair bargaining process." Such
content-discriminatory regulation-like all other contentbased
regulation of speech-must be subjected to strict scrutiny.
C
In an effort to avoid the implications of these basic principles
of First Amendment law, respondents make two principal claims.
First, they argue that the regulations target deceptive and
misleading speech. See Brief for Respondents 33 ("Petitioners'
advertising clearly engenders 'the potential for deception or
confusion' that allows for regulation of commercial speech based on
its content" (quoting
Bolger v.
Youngs Drug Products
Corp., 463 U. S.
60, 65 (1983))). Second, they argue that the regulations
restrict speech that promotes an illegal transaction-i.
e.,
the sale of tobacco to minors. See Brief for Respondents 15 ("The
regulations ... exhibit a close connection to a commercial
transaction the State has prohibited").
Neither theory is properly before the Court. For purposes of
summary judgment, respondents were willing to as-
578
sume "that the tobacco advertisements at issue here are
truthful, nonmisleading speech about a lawful activity." 218 F. 3d,
at 43. Although respondents now claim that they have not conceded
this point, see Brief for Respondents 35, n. 17, the fact remains
that they did not urge their theories in the lower courts, and in
general, we do not consider arguments for affirmance that were not
presented below. See,
e. g., Glover v.
United States,
531 U. S. 198,
205 (2001). These concessions should make this an easy case, one
clearly controlled by J,J,
Liquormart and by
Greater New
Orleans Broadcasting Assn., Inc. v.
United States,
527 U. S. 173
(1999). At all events, even if we were to entertain these
arguments, neither is persuasive.
Respondents suggest that tobacco advertising is misleading
because "its youthful imagery and ... sheer ubiquity" leads
children to believe "that tobacco use is desirable and pervasive."
Brief for Respondents 33; see also Brief for United States as
Amicus Curiae 7 ("[S]o many children lack the maturity in
judgment to resist the tobacco industry's appeals to excitement,
glamour, and independence"). This justification is belied, however,
by the sweeping overinclusivity of the regulations. Massachusetts
has done nothing to target its prohibition to advertisements
appealing to "excitement, glamour, and independence"; the ban
applies with equal force to appeals to torpor, homeliness, and
servility. It has not focused on "youthful imagery"; smokers
depicted on the sides of buildings may no more play shuffleboard
than they may ride skateboards.
The regulations even prohibit a store from accurately stating
the prices at which cigarettes are sold. Such a display could not
possibly be misleading, unless one accepts the State's apparent
view that the simple existence of tobacco advertisements misleads
people into believing that tobacco use is more pervasive than it
actually is. The State misunderstands the purpose of advertising.
Promoting a product that is not yet pervasively used (or a cause
that is not yet
579
widely supported) is a primary purpose of advertising. Tobacco
advertisements would be no more misleading for suggesting pervasive
use of tobacco products than are any other advertisements that
attempt to expand a market for a product, or to rally support for a
political movement. Any inference from the advertisements that
businesses would like for tobacco use to be pervasive is entirely
reasonable, and advertising that gives rise to that inference is in
no way deceptive.
The State also contends that tobacco advertisements may be
restricted because they propose an illegal sale of tobacco to
minors. A direct solicitation of unlawful activity may of course be
proscribed, whether or not it is commercial in nature. See
Brandenburg v.
Ohio, 395 U. S. 444 (1969)
(per curiam). The State's power to punish speech that
solicits or incites crime has nothing to do with the commercial
character of the speech. After all, it is often the case that
solicitation to commit a crime is entirely noncommercial. The harm
that the State seeks to prevent is the harm caused by the unlawful
activity that is solicited; it is unrelated to the commercial
transaction itself. Thus there is no reason to apply anything other
than our usual rule for evaluating solicitation and incitement
simply because the speech in question happens to be commercial. See
Carey v.
Population Services Int'l, 431 U. S. 678, 701-702
(1977).
Viewed as an effort to proscribe solicitation to unlawful
conduct, these regulations clearly fail the
Brandenburg
test. A State may not "forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to
incite or produce such action."
Brandenburg, supra, at 447.
Even if Massachusetts could prohibit advertisements reading, "Hey
kids, buy cigarettes here," these regulations sweep much more
broadly than that. They cover
"any ... statement or
representation ... the purpose or effect of which is to promote the
use or sale" of tobacco products, whether or not the statement is
directly or indi-
580
rectly addressed to minors. 940 Code of Mass. Regs. § 21.03
(2000). On respondents' theory,
all tobacco advertising may
be limited because
some of its viewers may not legally act
on it.
It is difficult to see any stopping point to a rule that would
allow a State to prohibit all speech in favor of an activity in
which it is illegal for minors to engage. Presumably, the State
could ban car advertisements in an effort to enforce its
restrictions on underage driving. It could regulate advertisements
urging people to vote, because children are not permitted to vote.
And, although the Solicitor General resisted this implication of
her theory, see Tr. of Oral Arg. 5556, the State could prohibit
advertisements for adult businesses, which children are forbidden
to patronize.
At bottom, respondents' theory rests on the premise that an
indirect solicitation is enough to empower the State to regulate
speech, and that, as petitioners put it, even an advertisement
directed at adults "will give any children who may happen to see it
the wrong idea and therefore must be suppressed from public view."
Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596,
p. 36. This view is foreign to the First Amendment. "Every idea is
an incitement,"
Gitlow v.
New York, 268 U. S. 652, 673 (1925)
(Holmes, J., dissenting), and if speech may be suppressed whenever
it might inspire someone to act unlawfully, then there is no limit
to the State's censorial power. Cf.
American Booksellers Assn.,
Inc. v.
Hudnut, 771 F.2d
323 (CA7 1985), aff'd, 475 U. S. 1001 (1986).
There is a deeper flaw in the State's argument. Even if
Massachusetts has a valid interest in regulating speech directed at
children-who, it argues, may be more easily misled, and to whom the
sale of tobacco products is unlawfulit may not pursue that interest
at the expense of the free speech rights of adults.
The theory that public debate should be limited in order to
protect impressionable children has a long historical pedi-
581
gree: Socrates was condemned for being "a doer of evil, inasmuch
as he corrupts the youth." 1 Dialogues of Plato, Apology 348 (B.
Jowett transl., 4th ed. 1953). But the theory has met with a less
enthusiastic reception in this Court than it did in the Athenian
assembly. In
Butler v.
Michigan, 352 U. S. 380
(1957), we struck down a statute restricting the sale of materials
"'tending to incite minors to violent or depraved or immoral
acts.'"
Id., at 381 (quoting then Mich. Penal Code § 343).
The effect of the law, we observed, was "to reduce the adult
population of Michigan to reading only what is fit for children."
352 U. S., at 383. As Justice Frankfurter colorfully put it,
"Surely, this is to burn the house to roast the pig."
Ibid.
We have held consistently that speech "cannot be suppressed
solely to protect the young from ideas or images that a legislative
body thinks unsuitable for them."
Erznoznik v.
Jacksonville, 422 U. S. 205, 213-214
(1975); accord,
Bolger, 463 U. S., at 74 ("The level of
discourse reaching a mailbox simply cannot be limited to that which
would be suitable for a sandbox"). To be sure, in
FCC v.
Pacifica Foundation, 438 U. S. 726 (1978), we
upheld the Federal Communications Commission's power to regulate
indecent but nonobscene radio broadcasts. But
Pacifica
relied heavily on what it considered to be the "special
justifications for regulation of the broadcast media that are not
applicable to other speakers."
Reno v.
American Civil
Liberties Union, 521 U. S. 844, 868
(1997). It emphasized that radio is
"uniquely pervasive" and
"uniquely accessible to children, even those too young to
read."
Pacifica, supra, at 748-749 (emphasis added).
Outside of the broadcasting context, we have adhered to the view
that "the governmental interest in protecting children from harmful
materials" does not "justify an unnecessarily broad suppression of
speech addressed to adults."
Reno, supra, at 875; see also
Playboy Entertainment, 529 U. S., at 814 ("[T]he objective
of shielding children does not
582
suffice to support a blanket ban if the protection can be
accomplished by a less restrictive alternative"). Massachusetts may
not avoid the application of strict scrutiny simply because it
seeks to protect children.
II
Under strict scrutiny, the advertising ban may be saved only if
it is narrowly tailored to promote a compelling government
interest. See,
e. g.,
id., at 813. If that interest
could be served by an alternative that is less restrictive of
speech, then the State must use that alternative instead. See
ibid.; Reno, supra, at 874. Applying this standard, the
regulations here must fail.
A
Massachusetts asserts a compelling interest in reducing tobacco
use among minors. Applied to adults, an interest in manipulating
market choices by keeping people ignorant would not be legitimate,
let alone compelling. See
supra, at 575. But assuming that
there is a compelling interest in reducing underage smoking, and
that the ban on outdoor advertising promotes this interest, I doubt
that the same is true of the ban on point-of-sale advertising below
five feet. See 940 Code of Mass. Regs. §§ 21.04(5)(b), 22.06(5)(b)
(2000). The Court of Appeals admitted to having "some misgivings
about the effectiveness of a restriction that is based on the
assumption that minors under five feet tall will not, or will less
frequently, raise their view above eye-level," 218 F. 3d, at 51, as
well it might have, since respondents have produced no evidence to
support this counterintuitive assumption. Obviously even short
children can see objects that are taller than they are. Anyway, by
the time they are 12lh years old, both the median girl and the
median boy are over five feet tall. See U. S. Centers for Disease
Control and Prevention, Growth Charts (2000). Thus, there is no
reason to believe that this regulation does anything to protect
minors from
583
exposure to tobacco advertising.3 Far from serving a compelling
interest, the ban on displays below five feet seems to lack even a
minimally rational relationship to any conceivable interest.
There is also considerable reason to doubt that the restrictions
on cigar and smokeless tobacco outdoor advertising promote any
state interest. Outdoor advertising for cigars, after all, is
virtually nonexistent. Cigar makers use no billboards in
Massachusetts, and in fact their nationwide outdoor advertising
budget is only about $50,000 per year. See 218 F. 3d, at 49. To the
extent outdoor advertising exists, there is no evidence that it is
targeted at youth or has a significant effect on youth. The Court
of Appeals focused on the State's evidence of a relationship
between "tobacco advertising and tobacco use," id., at 48, thus
eliding the dearth of evidence showing any relationship between
cigar advertising and
cigar use by minors.
Respondents principally rely on a National Cancer Institute report
on cigar smoking, see Brief for Respondents 39, n. 19. But that
report contains only the conclusory assertion that cigars are being
"heavily promoted in ways likely to influence adolescent use," and
it does not even discuss outdoor advertising, instead focusing on
"[e]ndorsements by celebrities," "the re-
3 This is not to say that the regulation does nothing at all. As
the Court points out, see
ante, at 565, 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, Recommendations for Workplace Violence
Prevention Programs in Late-Night Retail Establishments 6 (1998)
("Shelves should be low enough to assure good visibility throughout
the store"). The § 21.04(5)(b) ban on displays below five feet and
the § 21.04(5)(a) ban on displays visible from outside the 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 Respondents 30
("The State, quite clearly, is not trying to suppress altogether
the communication of product information to interested consumers"),
the restrictions effectively produce a total ban.
584
surgence of cigar smoking in movies," and "cigar lifestyle
magazines such as 'Cigar Aficionado.'" National Cancer Institute,
Cigars: Health Effects and Trends, Smoking and Tobacco Control
Monograph No.9, pp. 14-15 (1998), Record, Doc. No. 39, Exh. 67. The
report candidly acknowledges that "[a]dditional information is
needed to better characterize marketing efforts for cigars" and "to
learn the extent to which advertising and promotion for cigars ...
reaches and affects kids."
Id., at 216-217. In other words,
respondents have adduced no evidence that a ban on cigar
advertising will do anything to promote their asserted
interest.
Much the same is true of smokeless tobacco. Here respondents
place primary reliance on evidence that, in the late 1960's, the U.
S. Smokeless Tobacco Company increased its sales through
advertising targeted at young males. See Brief for Respondents 39,
n. 19. But this does nothing to show that advertising affecting
minors is a problem today. The Court invokes the Food and Drug
Administration's findings, see
ante, at 559-560, but the
report it cites based its conclusions on the observed "very large
increase in the use of smokeless tobacco products by young people."
60 Fed. Reg. 41318 (1995). This premise is contradicted by one of
respondents' own studies, which reports a large, steady
de
crease in smokeless tobacco use among Massachusetts high
school students during the 1990's. See App. 292. This finding casts
some doubt on whether the State's interest in additional regulation
is truly compelling. More importantly, because cigarette smoking
among high school students has not exhibited such a trend, see
ibid., it indicates that respondents' effort to aggregate
cigarettes and smokeless tobacco is misguided.
B
In any case, even assuming that the regulations advance a
compelling state interest, they must be struck down because they
are not narrowly tailored. The Court is correct, see
ante,
at 561-563, that the arbitrary 1,000-foot radius demon-
585
strates a lack of narrow tailoring, but the problem goes deeper
than that. A prohibited zone defined solely by circles drawn around
schools and playgrounds is necessarily overinclusive, regardless of
the radii of the circles. Consider, for example, a billboard
located within 1,000 feet of a school but visible only from an
elevated freeway that runs nearby. Such a billboard would not
threaten any of the interests respondents assert, but it would be
banned anyway, because the regulations take no account of whether
the advertisement could even be seen by children. The prohibited
zone is even more suspect where, as here, it includes all but 10
percent of the area in the three largest cities in the State.
The loose tailoring of the advertising ban is displayed not only
in its geographic scope but also in the nature of the
advertisements it affects. The regulations define "advertisement"
very broadly; the term includes any "written ... statement or
representation, made by" a person who sells tobacco products, "the
purpose or effect of which is to promote the use or sale of the
product." 940 Code of Mass. Regs. § 21.03 (2000). Almost everything
a business does has the purpose of promoting the sale of its
products, so this definition would cover anything a tobacco
retailer might say. Some of the prohibited speech would not even be
commercial. If a store displayed a sign promoting a candidate for
Attorney General who had promised to repeal the tobacco regulations
if elected, it probably would be doing so with the longterm purpose
of promoting sales, and the display of such a sign would be
illegal.
Even if the definition of "advertisement" were read more
narrowly so as to require a specific reference to tobacco products,
it still would have Draconian effects. It would, for example,
prohibit a tobacconist from displaying a sign reading "Joe's Cigar
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
black-and-white sign reading "Tobacco Products Sold Here." §
22.06(6). Rather, it is to
586
make individual cigar retailers more difficult to identify by
making them change their names. Respondents assert no interest in
cigar retailer anonymity, and it is difficult to conceive of any
other interest to which this rule could be said to be narrowly
tailored.
The regulations fail the narrow tailoring inquiry for another,
more fundamental reason. In addition to examining a narrower
advertising ban, the State should have examined ways of advancing
its interest that do not require limiting speech at all. Here,
respondents had several alternatives. Most obviously, they could
have directly regulated the conduct with which they were concerned.
See,
e. g., Rubin v.
Coors Brewing Co., 514 U. S. 476, 490-491
(1995) (invalidating ban on disclosure of alcohol content on beer
labels, in part because the Government could have pursued
alternatives such as "directly limiting the alcohol content of
beers"); see also J,J,
Liquormart, 517 U. S., at 524
(THOMAS, J., concurring in part and concurring in judgment) ("[I]t
would seem that directly banning a product (or ... otherwise
restricting its sale in specific ways) would virtually always be at
least as effective in discouraging consumption as merely
restricting advertising"). Massachusetts already prohibits the sale
of tobacco to minors, but it could take steps to enforce that
prohibition more vigorously. It also could enact laws prohibiting
the purchase, possession, or use of tobacco by minors. And, if its
concern is that tobacco advertising communicates a message with
which it disagrees, it could seek to counteract that message with
"more speech, not enforced silence,"
Whitney v.
California, 274 U. S. 357, 377 (1927)
(Brandeis, J., concurring).
III
Underlying many of the arguments of respondents and their
amici is the idea that tobacco is in some sense
sui
generis-that it is so special, so unlike any other object of
regulation, that application of normal First Amendment principles
should be suspended. See,
e. g., Brief for Respondents
50
587
(referring to tobacco use as "one of the State's-and indeed the
Nation's-most urgent problems"); Brief for United States as
Amicus Curiae 19-20 (cataloging the prevalence and the
effects of tobacco use); Brief for American Medical Association et
aI. as
Amici Curiae 24 (advocating "the authority of
governments to protect children from uniquely dangerous messages").
Smoking poses serious health risks, and advertising may induce
children (who lack the judgment to make an intelligent decision
about whether to smoke) to begin smoking, which can lead to
addiction. The State's assessment of the urgency of the problem
posed by tobacco is a policy judgment, and it is not this Court's
place to secondguess it. Nevertheless, it seems appropriate to
point out that to uphold the Massachusetts tobacco regulations
would be to accept a line of reasoning that would permit
restrictions on advertising for a host of other products.
Tobacco use is, we are told, "the single leading cause of
preventable death in the United States." Brief for United States as
Amicus Curiae 19. The
second largest contributor to
mortality rates in the United States is obesity. Koplan &
Dietz, Caloric Imbalance and Public Health Policy, 282 JAMA 1579
(1999). It is associated with increased incidence of diabetes,
hypertension, and coronary artery disease,
ibid., and it
represents a public health problem that is rapidly growing worse.
See Mokdad et aI., The Spread of the Obesity Epidemic in the United
States, 1991-1998, 282 JAMA 1519 (1999). Although the growth of
obesity over the last few decades has had many causes, a
significant factor has been the increased availability of large
quantities of highcalorie, high-fat foods. See Hill, Environmental
Contributions to the Obesity Epidemic, 280 Science 1371 (1998).
Such foods, of course, have been aggressively marketed and promoted
by fast food companies. See Nestle & Jacobson, Halting the
Obesity Epidemic, U. S. Dept. of Health and Human Services, 115
Public Health Reports 12, 18 (2000).
588
Respondents say that tobacco companies are covertly targeting
children in their advertising. Fast food companies do so openly.
See,
e. g., Kramer, McD's Steals Another Toy from BK,
Advertising Age, Nov. 15, 1999, p. 1 (describing a McDonald's
promotional campaign); Lucas, BK Takes Choice Message to Kids,
Adweek, June 29, 1998, p. 4 (describing a Burger King promotional
campaign). Moreover, there is considerable evidence that they have
been successful in changing children's eating behavior. See
Borzekowski & Robinson, The 30-Second Effect, 101 J. Am.
Dietetic Assn. 42 (2001); Taras, Sallis, Patterson, Nader, &
Nelson, Television's Influence on Children's Diet and Physical
Activity, 10 J. Dev. & Behav. Pediatrics 176 (1989). The effect
of advertising on children's eating habits is significant for two
reasons. First, childhood obesity is a serious health problem in
its own right. Troiano & Flegal, Overweight Children and
Adolescents, 101 Pediatrics 497 (1998). Second, eating preferences
formed in childhood tend to persist in adulthood. Birch &
Fisher, Development of Eating Behaviors Among Children and
Adolescents, 101 Pediatrics 539 (1998). So even though fast food is
not addictive in the same way tobacco is, children's exposure to
fast food advertising can have deleterious consequences that are
difficult to reverse.
To take another example, the third largest cause of preventable
deaths in the United States is alcohol. McGinnis & Foege,
Actual Causes of Death in the United States, 270 JAMA 2207, 2208
(1993). Alcohol use is associated with tens of thousands of deaths
each year from cancers and digestive diseases.
Id., at
2208-2209. And the victims of alcohol use are not limited to those
who drink alcohol. In 1996, over 17,000 people were killed, and
over 321,000 people were injured, in alcohol-related car accidents.
U. S. Dept. of Justice, Alcohol and Crime 13 (1998). Each year,
alcohol is involved in several million violent crimes, including
almost 200,000 sexual assaults.
Id., at 3-4.
589
Although every State prohibits the sale of alcohol to those
under age 21, much alcohol advertising is viewed by children.
Federal Trade Commission, J. Evans & R. Kelly, SelfRegulation
in the Alcohol Industry (Sept. 1999); Grube & Wallack,
Television Beer Advertising and Drinking Knowledge, Beliefs, and
Intentions among Schoolchildren, 84 Am. J. Pub. Health 254 (1994).
Not surprisingly, there is considerable evidence that exposure to
alcohol advertising is associated with underage drinking. See
Atkin, Survey and Experimental Research on Effects of Alcohol
Advertising, in The Effects of the Mass Media on the Use and Abuse
of Alcohol 39 (S. Martin ed. 1995); Madden & Grube, The
Frequency and Nature of Alcohol and Tobacco Advertising in
Televised Sports, 1990 through 1992, 84 Am. J. Pub. Health 297
(1994).
Like underage tobacco use, underage drinking has effects that
cannot be undone later in life. Those who begin drinking early are
much more likely to become dependent on alcohol. Indeed, the
probability of lifetime alcohol dependence decreases approximately
14 percent with each additional year of age at which alcohol is
first used. Grant & Dawson, Age at Onset of Alcohol Use and its
Association with DSM-IV Alcohol Abuse and Dependence, 9 J.
Substance Abuse 103, 108 (1997). And obviously the effects of
underage drinking are irreversible for the nearly 1,700 Americans
killed each year by teenage drunk drivers. See National Highway
Traffic Safety Administration, 1998 Youth Fatal Crash and Alcohol
Facts.
Respondents have identified no principle of law or logic that
would preclude the imposition of restrictions on fast food and
alcohol advertising similar to those they seek to impose on tobacco
advertising. Cf. Tr. of Oral Arg. 56-57. In effect, they seek a
"vice" exception to the First Amendment. No such exception exists.
See J,J,
Liquormart, 517 U. S., at 513-514 (opinion of
STEVENS, J., joined by KENNEDY, THOMAS, and GINSBURG, JJ.). If it
did, it would have almost no limit, for "any product that poses
some threat to
590
public health or public morals might reasonably be characterized
by a state legislature as relating to 'vice activity.'"
Id.,
at 514. That is why "a 'vice' label that is unaccompanied by a
corresponding prohibition against the commercial behavior at issue
fails to provide a principled justification for the regulation of
commercial speech about that activity."
Ibid.
No legislature has ever sought to restrict speech about an
activity it regarded as harmless and inoffensive. Calls for limits
on expression always are made when the specter of some threatened
harm is looming. The identity of the harm may vary. People will be
inspired by totalitarian dogmas and subvert the Republic. They will
be inflamed by racial demagoguery and embrace hatred and bigotry.
Or they will be enticed by cigarette advertisements and choose to
smoke, risking disease. It is therefore no answer for the State to
say that the makers of cigarettes are doing harm: perhaps they are.
But in that respect they are no different from the purveyors of
other harmful products, or the advocates of harmful ideas. When the
State seeks to silence them, they are all entitled to the
protection of the First Amendment.
JUSTICE SOUTER, concurring in part and dissenting in part.
I join Parts I, II-C, II-D, III-A, III-B-1, III-C, and III-D of
the Court's opinion. I join Part I of the opinion of JUSTICE
STEVENS concurring in part, concurring in the judgment in part, and
dissenting in part. I respectfully dissent from Part III-B-2 of the
opinion of the Court, and like JUSTICE STEVENS would remand for
trial on the constitutionality of the 1,OOO-foot limit.
JUSTICE STEVENS, with whom JUSTICE GINSBURG and JUSTICE BREYER
join, and with whom JUSTICE SOUTER joins as to Part I, concurring
in part, concurring in the judgment in part, and dissenting in
part.
This suit presents two separate sets of issues. The
firstinvolving pre-emption-is straightforward. The second-
591
involving the First Amendment-is more complex. Because I
strongly disagree with the Court's conclusion that the Federal
Cigarette Labeling and Advertising Act of 1965 (FCLAA or Act), 15
U. S. C. § 1331
et seq., as amended, precludes States and
localities from regulating the location of cigarette advertising, I
dissent from Parts II-A and II-B of the Court's opinion. On the
First Amendment questions, I agree with the Court both that the
outdoor advertising restrictions imposed by Massachusetts serve
legitimate and important state interests and that the record does
not indicate 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 on the constitutionality of the outdoor advertising
regulations. Finally, because I do not believe that either the
point-of-sale advertising restrictions or the sales practice
restrictions implicate significant First Amendment concerns, I
would uphold them in their entirety.
I
As the majority acknowledges,
ante, at 541-542, under
prevailing principles, any examination of the scope of a preemption
provision must" 'start with the assumption that the historic police
powers of the States [are] not to be superseded by ... Federal Act
unless that [is] the clear and manifest purpose of Congress.'"
Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 516 (1992)
(quoting
Rice v.
Santa Fe Elevator Corp., 331 U. S. 218, 230
(1947)); see also,
e. g., California Div. of Labor Standards
Enforcement v.
Dillingham Constr., N.
A., Inc.,
519 U. S. 316,
325 (1997);
Medtronic, Inc. v.
Lohr, 518 U. S. 470, 475
(1996). As the regulations at issue in this suit implicate two
powers that lie at the heart of the States' traditional police
power-the power to regulate land usage and the power to protect the
health and safety of minors-our precedents require that the Court
construe the pre-emption provision "narrow[ly]."
Id., at
485;
592
Opinion of STEVENS, J.
see also
Cipollone, 505 U. S., at 518. If Congress'
intent to pre-empt a particular category of regulation is
ambiguous, such regulations are not pre-empted.1
The text of the pre-emption provision must be viewed in context,
with proper attention paid to the history, structure, and purpose
of the regulatory scheme in which it appears. See,
e. g.,
Medtronic, 518 U. S., at 484-486;
New York State Conference
of Blue Cross &
Blue Shield Plans v.
Travelers
Ins. Co., 514 U.
S. 645, 655-656 (1995);
Cipollone, 505 U. S., at
513-515, 519-520, 529, 530, n. 27; accord,
ante, at 542.2 An
assessment of the scope of a pre-emption provision must give effect
to a "reasoned understanding of the way in which Congress intended
the statute and its surrounding regulatory scheme to affect
business, consumers, and the law."
Medtronic, 518 U. S., at
486.
This task, properly performed, leads inexorably to the
conclusion that Congress did not intend to pre-empt state and local
regulations of the location of cigarette advertising when it
adopted the provision at issue in this suit. In both 1965 and 1969,
Congress made clear the purposes of its regulatory
1 See,
e. g., Florida Lime &
Avocado Growers,
Inc. v.
Paul, 373 U. S. 132, 146-147
(1963) ("[W]e are not to conclude that Congress legislated the
ouster of this [state] statute ... in the absence of an unambiguous
congressional mandate to that effect");
Cipollone, 505 U.
S., at 533 (Blackmun, J., joined by KENNEDY and SOUTER, JJ.,
concurring in part, concurring in judgment in part, and dissenting
in part) ("The principles of federalism and respect for state
sovereignty that underlie the Court's reluctance to find
pre-emption where Congress has not spoken directly to the issue
apply with equal force where Congress has spoken, though
ambiguously. In such cases, the question is not whether Congress
intended to pre-empt state regulation, but to what extent. We do
not, absent unambiguous evidence, infer a scope of pre-emption
beyond that which clearly is mandated by Congress' language"
(emphasis deleted)).
2 Cf.
Central Hanover Bank &
Trust Co. v.
Commissioner, 159 F.2d 167, 169 (CA2 1947) (L. Hand, J.)
("There is no more likely way to misapprehend the meaning of
language-be it in a constitution, a statute, a will or a
contract-than to read the words literally, forgetting the object
which the document as a whole is meant to secure").
593
endeavor, explaining with precision the federal policies
motivating its actions. According to the Acts, Congress adopted a
"comprehensive Federal Program to deal with cigarette labeling and
advertising with respect to any relationship between smoking and
health," for two reasons: (1) to inform the public that smoking may
be hazardous to health and (2) to ensure that commerce and the
interstate economy not be "impeded by diverse, nonuniform, and
confusing cigarette labeling and advertising regulations with
respect to any relationship between smoking and health." 15 U. S.
C. § 1331.
In order to serve the second purpose it was necessary to
pre-empt state regulation of the content of both cigarette labels
and cigarette advertising. If one State required the inclusion of a
particular warning on the package of cigarettes while another State
demanded a different formulation, cigarette 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 would be entailed by such a
patchwork regulatory system, Congress expressly precluded other
regulators from requiring the placement on cigarette packaging of
any "statement relating to smoking and health." § 1334(a). Similar
concerns applied to cigarette advertising. If different regulatory
bodies required that different warnings or statements be used when
cigarette manufacturers advertised their products, the text and
layout of a company's ads would have had to differ from locale to
locale. The resulting costs would have come with little or no
health benefit. Moreover, given the nature of publishing, it might
well have been the case that cigarette companies would not have
been able to advertise in national publications without violating
the laws of some jurisdictions. In response to these concerns,
Congress adopted a parallel provision pre-empting state and local
regulations requiring inclusion in cigarette advertising of any
"statement relating to smoking and health." § 1334(b) (1970 ed.)
(amended 1970).
594
There was, however, no need to interfere with state or local
zoning laws or other regulations prescribing limitations on the
location of signs or billboards. Laws prohibiting a cigarette
company from hanging a billboard near a school in Boston in no way
conflict with laws permitting the hanging of such a billboard in
other jurisdictions. Nor would such laws even impose a significant
administrative burden on would-be advertisers, as the great
majority of localities impose general restrictions on signage, thus
requiring advertisers to examine local law before posting signs
whether or not cigarette-specific laws are pre-empted. See
Greater N.
Y. Metropolitan Food Council, Inc. v.
Giuliani, 195 F.3d
100,
109 (CA2 1999) ("Divergent local zoning
restrictions on the location of sign advertising are a commonplace
feature of the national landscape and cigarette advertisers have
always been bound to observe them"). Hence, it is unsurprising that
Congress did not include any provision in the 1965 Act pre-empting
location restrictions.
The Public Health Cigarette Smoking Act of 1969 (1969 Act), § 2,
84 Stat. 87, made two important changes in the pre-emption
provision. First, it limited the applicability of the advertising
prong to States and localities, paving the way for further federal
regulation of cigarette advertising. FCLAA, § 4. Second, it
expanded the scope of the advertising pre-emption provision. Where
previously States were prohibited from requiring particular
statements in cigarette advertising based on health concerns, they
would henceforth be prohibited from imposing any "requirement or
prohibition based on smoking and health ... with respect to the
advertising or promotion" of cigarettes. § 5(b), 15 U. S. C. §
1334(b).3
3 In
Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 521
(1992), we held that one of the consequences of this change in
language was that after 1969 the statute pre-empts some common-law
actions.
595
Ripped from its context, this provision could theoretically be
read as a breathtaking expansion of the limitations imposed by the
1965 Act. However, both our precedents and common sense require us
to read statutory provisions-and, in particular, pre-emption
clauses-in the context of both their neighboring provisions and of
the history and purpose of the statutory scheme. See
supra,
at 592. When so viewed, it is quite clear that the 1969 amendments
were intended to expand the provision to capture a narrow set of
content regulations that would have escaped pre-emption under the
prior provision, not to fundamentally reorder the division of
regulatory authority between the Federal and State Governments.
All signs point inescapably to the conclusion that Congress only
intended to pre-empt content regulations in the 1969 Act. It is of
crucial importance that, in making modifications of the pre-emption
provision, Congress did not alter the statement laying out the
federal policies the provision was intended to serve. See 15 U. S.
C. § 1331. To this day, the stated federal policies in this area
are (1) to inform the public of the dangers of cigarette smoking
and (2) to protect the cigarette companies from the burdens of
confusing and contradictory state regulations of their labels and
advertisements. See ibid. The retention of this provision unchanged
is strong evidence that Congress' only intention in expanding the
pre-emption clause was to capture forms of content regulation that
had fallen through the cracks of the prior provision-for example,
state laws prohibiting cigarette manufacturers from making
particular claims in their advertising or requiring them to utilize
specified layouts or include particular graphics in their
marketing.4
4 Because of the nature of magazine publishing and distribution,
it is conceivable that a State or locality might cause the kind of
regulatory confusion the statute was drafted to prevent by adopting
a law prohibiting the advertising of cigarettes in any publication
distributed within its
596
Opinion of STEVENS, J.
The legislative history of the provision also supports such a
reading. The record does not contain any evidence that Congress
intended to expand the scope of pre-emption beyond content
restrictions.5 To the contrary, the Senate Report makes it clear
that the changes merely "clarified" the scope of the original
provision. S. Rep. No. 91-566, p. 12 (1969). Even as amended,
Congress perceived the provision as "narrowly phrased" and
emphasized that its purpose is to "avoid the chaos created by a
multiplicity of conflicting regulations."
Ibid. According to
the Senate Report, the changes "in no way affect the power of any
state or political subdivision of any state with respect to ... the
sale of cigarettes to minors ... or similar police regulations."
Ibid.
In analyzing the scope of the pre-emption provision, the Courts
of Appeals have almost uniformly concluded that state and local
laws regulating the location of billboards and signs are not
pre-empted. See
Consolidated Cigar Corp. v.
Reilly,
218 F.3d
30, 39-41
(CA1 2000) (case below);
Greater New York
Metropolitan Food Council, Inc. v.
Giuliani, 195 F. 3d
100, 104-110
(CA2 1999);
Federation of Advertising
Industry Representatives, Inc. v.
Chicago, 189 F.3d
633,
boundaries. There is at least a modicum of support for the
suggestion that Congress may have intended the pre-emption of such
restrictions. See id., at 515, n. 11 (noting that California was
considering such a ban at the time Congress was considering the
1969 Act). However, the concerns posed by the diverse regulation of
national publications are not present with regard to the local
regulation of the location of signs and billboards.
5 At one point, the Court briefly argues that it would be wrong
to conclude that Congress intended to preclude only content
restrictions, because it imposed a location restriction (a ban on
television and radio advertising) in another provision of the same
bill. See
ante, at 548-549. This argument is something of a
non sequitur. The fact that Congress, in adopting a comprehensive
legislative package, chose to impose a federal location restriction
for a national medium has no bearing on whether, in a separate
provision, the Legislature intended to strip States and localities
of the authority to impose location restrictions for purely local
advertising media.
597
636-640 (CA7 1999);
Penn Advertising of Baltimore,
Inc. v.
Mayor and City Council of Baltimore, 63 F.3d
1318 (CA4 1995); contra,
Lindsey v.
Tacoma-Pierce Cty. Health Dept., 195 F.3d
1065 (CA9 1999). The decisions in those cases relied heavily
upon our discussion of the same pre-emption provision in
Cipollone, 505 U. S., at 515-524. In
Cipollone, while
the Members of the Court expressed three different opinions
concerning the scope of pre-emption mandated by the provision,
those differences related entirely to which, if any, of the
plaintiff's claims based on the
content of the defendants'
advertising were pre-empted by § 5. Nary a word in any of the three
Cipollone opinions supports the thesis that § 5 should be
interpreted to pre-empt state regulation of the location of signs
advertising cigarettes. Indeed, seven of the nine Justices
subscribed to opinions that explicitly tethered the scope of the
pre-emption provision to Congress' concern with "diverse,
nonuniform, and confusing cigarette labeling and advertising
regulations."
Id., at 519;
id., at 534, 541 (opinion
of Blackmun, J., joined by KENNEDY and SOUTER, JJ.).
I am firmly convinced that, when Congress amended the
pre-emption provision in 1969, it did not intend to expand the
application of the provision beyond content regulations.6
6 Petitioners suggest in passing that Massachusetts' regulation
amounts to a "near-total ba[n]," Brief for Petitioners Lorillard
Tobacco Co. et al. in No. 00-596, p. 22, and thus is a
de
facto regulation of the content of cigarette ads. But we need
not consider today the circumstances in which location restrictions
approximating a total ban might constitute regulation of content
and thus be pre-empted by the Act, because petitioners have failed
to introduce sufficient evidence to create a genuine issue as to
that claim. Petitioners introduced maps purporting to show that
cigarette advertising is barred in 90.6% of Boston proper, 87.8% of
Worcester, and 88.8% of Springfield. See App. 165-167. But the maps
do not distinguish between the area restricted due to the
regulation at issue here and the area restricted due to
pre-existing regulations, such as general zoning requirements
applicable to all outdoor advertising. Nor do the maps show the
percentage (with respect to either area or population) of the State
that is off limits to cigarette advertising; they cover only three
cities
598
Opinion of STEVENS, J.
I, therefore, find the conclusion inescapable that the zoning
regulation at issue in this suit is not a "requirement or
prohibition ... with respect to ... advertising" within the meaning
of the 1969 Act.7 Even if I were not so convinced, however, I would
still dissent from the Court's conclusion with regard to
pre-emption, because the provision is, at the very least,
ambiguous. The historical record simply does not reflect that it
was Congress' "'clear and manifest purpose,'" id., at 516, to
pre-empt attempts by States to utilize their traditional zoning
authority to protect the health and welfare of minors. Absent such
a manifest purpose, Massachusetts and its sister States retain
their traditional police powers.8
containing approximately 14% of the State's population. See U.
S. Census Bureau, Statistical Abstract of the United States 28, 47,
49 (1999) (providing population figures for 1998). The area in
which cigarette advertising is restricted is likely to be
considerably less in less densely populated portions of the State.
And even on the interpretation of this data most favorable to
petitioners, the Massachusetts regulation still permits indoor and
outdoor cigarette advertising in at least 10% of the geographical
area of the State. In short, the regulation here is not the
equivalent of a total ban on cigarette advertising.
7 Hence, while I agree in large part with the substance of the
arguments proffered by the respondents and the United States on the
pre-emption issue, I reject their conclusion that the
content/location distinction finds expression in the limiting
phrase "based on smoking and health." See Brief for Respondents 20;
Brief for United States as
Amicus Curiae 5; accord,
Penn
Advertising of Baltimore, Inc. v.
Mayor and City Council of
Baltimore, 63 F.3d
1318 (CA4 1995). Instead, I would follow the First, Second, and
Seventh Circuits in concluding that a statute regulating the
location of advertising is not a "requirement or prohibition ...
with respect to ... advertising" within the meaning of the 1969
Act. See
Consolidated Cigar Corp. v.
Reilly,
218 F.3d
30, 39-41 (CA1 2000) (case below);
Greater N Y.
Metropolitan Food Council, Inc. v.
Giuliani,
195 F.3d
100, 104-110
(CA2 1999);
Federation of Advertising
Industry Representatives, Inc. v.
Chicago, 189 F.3d
633, 636-640
(CA7 1999).
8 The Court's holding that federal law precludes States and
localities from protecting children from dangerous products within
1,000 feet of a school is particularly ironic given the Court's
conclusion six years ago that
599
II
On the First Amendment issues raised by petitioners, my
disagreements with the majority are less significant. I would,
however, reach different dispositions as to the 1,000foot rule and
the height restrictions for indoor advertising, and my evaluation
of the sales practice restrictions differs from the Court's.
The 1.000-Foot Rule
I am in complete accord with the Court's analysis of the
importance of the interests served by the advertising restrictions.
As the Court lucidly explains, few interests are more "compelling,"
ante, at 564, than ensuring that minors do not become
addicted to a dangerous drug before they are able to make a mature
and informed decision as to the health risks associated with that
substance. Unlike other products sold for human consumption,
tobacco products are addictive and ultimately lethal for many
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
Massachusetts' regulations serve interests of the highest order and
are, therefore, immune from any ends-based challenge, whatever
level of scrutiny one chooses to employ.
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 a similarly motivated ban. See
United States v.
Lopez, 514 U.
S. 549 (1995). Despite the absence of any identified federal
interest in creating "an invisible federal zone extending 1,000
feet beyond the (often irregular) boundaries of the school
property," as the majority construes it today, the "statute now
before us forecloses the States from experimenting and exercising
their own judgment in an area to which States lay claim by right of
history and expertise," id., at 583 (KENNEDY, J., concurring). I
wonder why a Court sensitive to federalism concerns would adopt
such a strange construction of statutory language whose quite
different purpose Congress took pains to explain.
600
may be invalid for two different reasons. First, the means
chosen may be insufficiently related to the ends they purportedly
serve. See,
e. g., Rubin v.
Coors Brewing Co., 514 U.
S. 476 (1995) (striking a statute prohibiting beer labels from
displaying alcohol content because the provision did not
significantly forward the government's interest in the health,
safety, and welfare of its citizens). Alternatively, the statute
may be so broadly drawn that, while effectively achieving its ends,
it unduly restricts communications that are unrelated to its policy
aims. See,
e. g., United States v.
Playboy Entertainment
Group, Inc., 529
U. S. 803, 812 (2000) (striking a statute intended to protect
children from indecent television broadcasts, in part because it
constituted "a significant restriction of communication between
speakers and willing adult listeners"). The second difficulty is
most frequently encountered when government adopts measures for the
protection of children that impose substantial restrictions on the
ability of adults to communicate with one another. See,
e. g.,
Playboy Entertainment Group, Inc., supra; Reno v.
American
Civil Liberties Union, 521 U. S. 844 (1997);
Sable Communications of Cal., Inc. v.
FCC, 492 U. S.
115 (1989).
To my mind, the 1,000-foot rule does not present a tailoring
problem of the first type. For reasons cogently explained in our
prior opinions and in the opinion of the Court, we may fairly
assume that advertising stimulates consumption and, therefore, that
regulations limiting advertising will facilitate efforts to stem
consumption.9 See,
e. g., Rubin, 514 U. S., at 487;
United States v.
Edge Broadcasting Co., 509 U. S. 418, 434
(1993);
ante, at 557. Furthermore, if the government's
intention is to limit consumption by a particular segment of the
community-in this case, minors-it is
9 Moreover, even if it were our practice to require a
particularized showing of the effects of advertising on
consumption, the respondents have met that burden in this suit. See
ante, at 557-561 (summarizing the evidence).
601
appropriate, indeed necessary, to tailor advertising
restrictions to the areas where that segment of the community
congregates-in this case, the area surrounding schools and
playgrounds.
However, I share the majority's concern as to whether the
1,000-foot rule unduly restricts the ability of cigarette
manufacturers to convey lawful information to adult consumers.
This, of course, is a question of line-drawing. While a ban on all
communications about a given subject would be the most effective
way to prevent children from exposure to such material, the State
cannot by fiat reduce the level of discourse to that which is "fit
for children."
Butler v.
Michigan, 352 U. S. 380, 383
(1957); cf.
Bolger v.
Youngs Drug Products Corp.,
463 U. S. 60, 74
(1983) ("The level of discourse reaching a mailbox simply cannot be
limited to that which would be suitable for a sandbox"). On the
other hand, efforts to protect children from exposure to harmful
material will undoubtedly have some spillover effect on the free
speech rights of adults. See,
e. g., FCC v.
Pacifica
Foundation, 438
U. S. 726, 749-750, and n. 28 (1978).
Finding the appropriate balance is no easy matter.
Though many factors plausibly enter the equation when
calculating whether a child-directed location restriction goes too
far in regulating adult speech, one crucial question is whether the
regulatory scheme leaves available sufficient "alternative avenues
of communication."
Renton v.
Playtime Theatres, Inc.,
475 U. S. 41, 50
(1986);
Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789, 819 (1984)
(Brennan, J., dissenting); accord,
ante, at 563. Because I
do not think the record contains sufficient information to enable
us to answer that question, I would vacate the award of summary
judgment upholding the 1,000-foot rule and remand for trial on that
issue. Therefore, while I agree with the majority that the Court of
Appeals did not sufficiently consider the implications of the
1,000-foot rule for the lawful communication of adults, see
ante, at 561-566,
602
I dissent from the disposition reflected in Part III-B-2 of the
Court's opinion.
There is no doubt that the 1,000-foot rule prohibits cigarette
advertising in a substantial portion of Massachusetts' largest
cities. Even on that question, however, the parties remain in
dispute as to the percentage of these urban areas that is actually
off limits to tobacco advertising. See
ante, at 562.
Moreover, the record is entirely silent on the impact of the
regulation in other portions of the Commonwealth. The dearth of
reliable statistical information as to the scope of the ban is
problematic.
More importantly, the Court lacks sufficient qualitative
information as to the areas where cigarette advertising is
prohibited and those where it is permitted. The fact that 80% or
90% of an urban area is unavailable to tobacco advertisements may
be constitutionally irrelevant if the available areas are so
heavily trafficked or so central to the city's culturallife that
they provide a sufficient forum for the propagation of a
manufacturer's message. One electric sign in Times Square or at the
foot of the Golden Gate Bridge may be seen by more potential
customers than a hundred signs dispersed in residential
neighborhoods.
Finally, the Court lacks information as to other avenues of
communication available to cigarette manufacturers and retailers.
For example, depending on the answers to empirical questions on
which we lack data, the ubiquity of print advertisements hawking
particular brands of cigarettes might suffice to inform adult
consumers of the special advantages of the respective brands.
Similarly, print advertisements, circulars mailed to people's
homes, word of mouth, and general information mayor may not be
sufficient to imbue the adult population with the knowledge that
particular stores, chains of stores, or types of stores sell
tobacco products.1o
10 As the above observations indicate, the analysis as to
whether the 1,000-foot rule impermissibly curtails speech between
adults will require a particularized analysis that may well ask
slightly different questions-
603
In granting summary judgment for the respondents, the District
Judge treated the First Amendment issues in this suit as pure
questions of law and stated that "there are no material facts in
dispute concerning these issues." 84 F. Supp. 2d 180, 183 (Mass.
2000). With due respect, I disagree. While the ultimate question
before us is one of law, the answer to that question turns on
complicated factual questions relating to the practical effects of
the regulations. As the record does not reveal the answer to these
disputed questions of fact, the court should have denied summary
judgment to both parties and allowed the parties to present further
evidence.
I note, moreover, that the alleged "overinclusivity" of the
advertising regulations,
ante, at 578 (THOMAS, J.,
concurring in part and concurring in judgment), while relevant to
whether the regulations are narrowly tailored, does not "beli[e]"
the claim that tobacco advertising imagery misleads children into
believing that smoking is healthy, glamorous, or sophisticated,
ibid. See Brief for American Legacy Foundation as
Amicus
Curiae 4-5, and nn. 9, 10; Brief for City of Los Angeles et al.
as
Amici Curiae 4 (documenting charge that advertisements
for cigarettes and smokeless tobacco target underage smokers). For
purposes of summary judgment, the State conceded that the tobacco
companies' advertising concerns lawful activity and is not
misleading. Under the Court's disposition of the cases today, the
State remains free to proffer evidence that the advertising is in
fact misleading. See
Virginia Bd. of Pharmacy v.
Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976)
("[M]uch commercial speech is not provably false, or even wholly
false, but only deceptive or misleading. We foresee no obstacle to
a State's dealing effectively with this problem"). I would vacate
the grant of summary judgment to respondents on this issue and
remand for further proceedings.
and conceivably could reach different results-with regard to the
constitutionality of the restrictions as applied to manufacturers
and retailers.
604
The Sales Practice and Indoor Advertising Restrictions
After addressing petitioners' challenge to the sales practice
restrictions imposed by the Massachusetts statute, the Court
concluded that these provisions did not violate the First
Amendment. I concur in that judgment, but write separately on this
issue to make two brief points.
First, I agree with the District Court and the Court of Appeals
that the sales practice restrictions are best analyzed as
regulating conduct, not speech. See 218 F. 3d, at 53. While the
decision how to display one's products no doubt serves a marginal
communicative function, the same can be said of virtually any human
activity performed with the hope or intention of evoking the
interest of others. This Court has long recognized the need to
differentiate between legislation that targets expression and
legislation that targets conduct for legitimate non-speech-related
reasons but imposes an incidental burden on expression. See,
e. g.,
United States v.
O'Brien, 391 U. S. 367 (1968).
However difficult that line may be to draw, it seems clear to me
that laws requiring that stores maintain items behind counters and
prohibiting self-service displays fall squarely on the conduct side
of the line. Restrictions as to the accessibility of dangerous or
legally restricted products are a common feature of the regulatory
regime governing American retail stores. I see nothing the least
bit constitutionally problematic in requiring individuals to ask
for the assistance of a salesclerk in order to examine or purchase
a handgun, a bottle of penicillin, or a package of cigarettes.
Second, though I admit the question is closer, I would, for
similar reasons, uphold the regulation limiting tobacco advertising
in certain retail establishments to the space five feet or more
above the floor.ll When viewed in isolation, this provision appears
to target speech. Further, to the ex-
11 This ban only applies to stores located within 1,000 feet of
a school or playground and contains an exception for adult-only
establishments. See
ante, at 535, 536.
605
tent that it does target speech it may well run into
constitutional problems, as the connection between the ends the
statute purports to serve and the means it has chosen are dubious.
Nonetheless, I am ultimately persuaded that the provision is
unobjectionable because it is little more than an adjunct to the
other sales practice restrictions. As the Commonwealth of
Massachusetts can properly legislate the placement of products and
the nature of displays in its convenience stores, I would not draw
a distinction between such restrictions and height restrictions on
related product advertising. I would accord the Commonwealth some
latitude in imposing restrictions that can have only the slightest
impact on the ability of adults to purchase a poisonous product and
may save some children from taking the first step on the road to
addiction.
III
Because I strongly disagree with the Court's conclusion on the
pre-emption issue, I dissent from Parts II-A and II-B of its
opinion. Though I agree with much of what the Court has to say
about the First Amendment, I ultimately disagree with its
disposition or its reasoning on each of the regulations before
US.12
12 Reflecting my partial agreement with the Court, I join Parts
I, II-C, II-D, and III-B-1 and concur in the judgment reflected in
Part III-D.
Comments
Be the first to comment
Leave a Comment