|||United States Court of Appeals For the First Circuit
|||No. 00-1107, No. 00-1117, No. 00-1118, No. 00-1270, Nos. 00-1271, 00-1272,
00-1275, No. 00-1273, No. 00-1274
|||July 17, 2000
|||CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.;
JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWISHER INTERNATIONAL, INC.;
TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; SWEDISH MATCH NORTH AMERICA,
INC.; PLAINTIFFS, APPELLANTS,
THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT, APPELLEE. LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; UNITED STATES TOBACCO COMPANY; PLAINTIFFS. UNITED STATES, INTERESTED PARTY. LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; PLAINTIFFS, APPELLANTS,
THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT, APPELLEE. UNITED STATES TOBACCO COMPANY; CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; PLAINTIFFS. UNITED STATES, INTERESTED PARTY. UNITED STATES TOBACCO COMPANY, PLAINTIFF, APPELLANT,
THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT, APPELLEE. LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; PLAINTIFFS. UNITED STATES, INTERESTED PARTY. LORILLARD TOBACCO COMPANY; PHILIP MORRIS, INC.; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; UNITED STATES TOBACCO COMPANY; CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; PLAINTIFFS, APPELLEES,
THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT, APPELLANT. UNITED STATES, INTERESTED PARTY. LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; UNITED STATES TOBACCO COMPANY; CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; PLAINTIFFS, APPELLEES,
THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT, APPELLANT. UNITED STATES, INTERESTED PARTY.
LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; UNITED STATES TOBACCO COMPANY; CONSOLIDATED CIGAR CORPORATION; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; PHILIP MORRIS, INC.; PLAINTIFFS, APPELLEES, V.
THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT, APPELLANT.
UNITED STATES, INTERESTED PARTY.
CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; SWEDISH MATCH NORTH AMERICA, INC.; LORILLARD TOBACCO COMPANY; PHILIP MORRIS, INC.; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; UNITED STATES TOBACCO COMPANY; PLAINTIFFS, APPELLEES,
THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, DEFENDANT, APPELLANT. UNITED STATES, INTERESTED PARTY.
|||James V. Kearney, with whom Latham & Watkins, Peter G. Hermes, Peter
C. Netburn and Hermes, Netburn, O'Connor & Spearing, P.C. were on brief,
for appellants Consolidated Cigar Corp., General Cigar Co., Inc., Havatampa,
Inc., John Middleton, Inc., L.J. Peretti Co., Inc., Swedish Match North
America, Inc., Swisher International, Inc. and Tobacco Exporters International
(usa) Ltd. Henry C. Dinger, P.C., with whom Cerise Lim-Epstein, Goodwin,
Procter & Hoar, Llp, Verne W. Vance, Jr., John H. Henn, Foley, Hoag
& Eliot, Andrew S. Krulwich, Thomas W. Kirby, Daniel E. Troy, William
A. McGrath, Wiley Rein & Fielding, Richard M. Zielinski, Robert D. Ryan,
Hill & Barlow, John B. Connarton, Jr. P.C., Carol-Lynn M. Bear, Connarton,
Wood & Callahan. Clausen Ely, Patricia A. Barald and Covington &
Burling were on brief, for appellants Philip Morris Incorporated, Brown
& Williamson Tobacco Corporation, Lorillard Tobacco Company and R.J.
Reynolds Tobacco Co. George J. Skelly, with whom Michael D. Blanchard, Eric
S. Sarner and Skadden, Arps, Slate, Meagher & Flom Llp were on brief,
for appellant United States Tobacco Company. Steven G. Brody, Cadwalader,
Wickersham & Taft and Gilbert H. Weil on brief, for Association of National
Advertisers, Inc., amicus curiae. Daniel J. Popeo, Richard A. Samp and Washington
Legal Foundation on brief, for Washington Legal Foundation, amicus curiae.
William W. Porter, Ca, Assistant Attorney General, with whom Susan Paulson,
Ca, Assistant Attorney General, was on brief, for appellee. Douglas N. Letter,
Appellate Litigation Counsel, Civil Division, U.S. Department of Justice,
with whom David W. Ogden, Acting Assistant Attorney General, and Donald
K. Stern, United States Attorney, were on brief, for the United States,
amicus curiae. Brian Wolfman, David C. Vladeck, Richard J. Whitney, Speir
& Whitney, George A. Hacker, Donald W. Garner, Michael L. Ile, Anne
M. Murphy and Leonard A. Nelson on brief, for American Medical Association,
American Heart Association, American Lung Association, American Cancer Society,
Center for Science in the Public Interest, Public Citizen, Inc. and the
Massachusetts Medical Society, amici curiae.
|||Before Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Lipez,
|||The opinion of the court was delivered by: Torruella, Chief Judge.
|||APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
|||Before the Court is a challenge to regulations promulgated by the Attorney
General of Massachusetts which restrict the sale, promotion, and labeling
of tobacco products in an effort to reduce the use of such products by minors.
Three groups of tobacco companies *fn1
have sued the Attorney General, claiming that the Massachusetts regulations
are partially preempted by federal law, that the regulations violate their
First Amendment right to free speech, and that the regulations violate the
Commerce Clause of the Constitution. After due consideration of the arguments
pressed by all parties and by amici curiae, and with full appreciation of
the importance of the public health issue underlying this case, we conclude
(1) that the regulations are not preempted by federal law, (2) that the
regulations do not violate the First Amendment, and (3) that parts of the
regulations unconstitutionally burden interstate commerce. Accordingly,
we affirm in part and reverse in part the decision of the district court.
|||I. Factual and Procedural Background
|||On January 22, 1999, the Attorney General of Massachusetts promulgated
regulations now codified at title 940, sections 21.00 through 21.07 (cigarettes
and smokeless tobacco) and title 940, sections 22.00 through 22.09 (cigars)
of the Massachusetts Code of Regulations. The regulations declare certain
types of conduct by manufacturers, distributors, and sellers of tobacco
products to be per se "unfair or deceptive acts or practices"
prohibited under chapter 93A, § 2(a) of the Massachusetts General Laws.
For example, the regulations prohibit a number of retail practices including
promotional give-aways and mail ordering without age verification, see 940
C.M.R. §§ 21.04(1), 22.06(1), as well as measures aimed specifically at
outlet sales practices, see id. §§ 21.04(2)-(3), 22.06(2)-(3). Of particular
concern to the tobacco companies, the Massachusetts regulations also prohibit
the following advertising practices:
|||(a) Outdoor advertising, 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 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 . . . any portion of which is placed lower
than five feet from the floor of any retail establishment accessible to
persons younger than 18 years old, which is located within a 1,000 foot
radius of any public playground, playground area in a public park, elementary
school or secondary school. Id. §§ 21.04(5), 22.06(5).
|||A single exception to the advertising ban permitted the display of a so-called
"tombstone" sign stating "Tobacco products sold here,"
see id. §§ 21.04(6), 22.06(6), but this provision was struck down by the
district court on preemption grounds. *fn2
Finally, the regulations also prescribe mandatory warning statements to
be included on all cigar labeling and advertising. See id. §§ 22.04, 22.05.
|||In response to the promulgation of the regulations, three separate suits
were filed in federal district court by the appellants in this consolidated
appeal, who are makers and sellers of cigarettes, smokeless tobacco products,
and cigars. The cigarette and smokeless tobacco companies claimed that the
Massachusetts regulations were preempted by the Federal Cigarette Labeling
and Advertising Act (FCLAA), codified as amended at 15 U.S.C. §§ 1331-41,
and that the regulations violated their commercial speech rights under the
First Amendment. *fn3 The cigar companies
also challenged the regulations on First Amendment grounds, as well as claiming
that the regulations imposed an undue burden on interstate commerce in violation
of the Commerce Clause. In an opinion issued December 2, 1999, the district
court rejected the preemption arguments of the cigarette and smokeless tobacco
producers. See Lorillard Tobacco Co. v. Reilly, 76 F. Supp. 2d 124 (D. Mass.
1999) (Lorillard I). In a January 24, 2000 opinion, the district court likewise
rejected the tobacco companies' First Amendment claims, as well as the cigar
makers' Commerce Clause challenge. See Lorillard Tobacco Co. v. Reilly,
84 F. Supp. 2d 180 (D. Mass. 2000) (Lorillard II). *fn4
Judgment was entered on January 25, 2000 in favor of the Attorney General,
and this appeal followed.
|||On appeal, the tobacco companies raise the following issues: (1) whether
the Massachusetts regulations are preempted by federal law, (2) whether
the regulations' advertising restrictions violate the First Amendment, (3)
whether certain restrictions imposed on retail practices violate the First
Amendment, (4) and whether the regulations' cigar warnings requirements
violate the First Amendment and the Commerce Clause. The Attorney General
cross-appeals one issue -- whether the regulations' indoor advertising restrictions
violate the First Amendment.
|||II. Law and Application
|||The Supreme Court has explained the analysis for determining when a state
regulation is preempted by a federal law that contains specific preemption
language. In Medtronic, Inc. v. Lohr, 518 U.S. 470, 484-86 (1996), the Court
stated that, to identify the domain expressly preempted by the federal statute,
two presumptions about the nature of preemption must be considered. First,
particularly when Congress has "'legislated . . . in a field which
the States have traditionally occupied,' we 'start with the assumption that
the historic police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Congress.'"
Id. at 485. Second, in determining the scope of the federal preemption,
the "ultimate touchstone" is Congress's purpose as "discerned
from the language of the pre-emption statute and the 'statutory framework'
surrounding it." Id. at 486. In this respect, it is relevant to consider
the "'structure and purpose of the statute as a whole,' as revealed
not only in the text, but through the reviewing court's reasoned understanding
of the way in which Congress intended the statute and its surrounding regulatory
scheme to affect business, consumers, and the law." Id.
|||The tobacco companies argue, rather weakly we might say, that the "presumption
against preemption" should not be applied in this case because the
presumption "is not triggered when the State regulates in an area where
there has been a history of significant federal presence." United States
v. Locke, 120 S. Ct. 1135, 1147 (2000). However, as the Court noted in Locke,
the area at issue there -- maritime commerce -- is one in which "Congress
has legislated from the earliest days of the Republic, creating an extensive
federal statutory and regulatory scheme." Id. at 1148. We have little
difficulty distinguishing the historically pervasive federal regulation
of fields such as maritime commerce, see, e.g., Kelly v. Washington, 302
U.S. 1, 4 (1937) ("The federal acts and regulations with respect to
vessels on the navigable waters of the United States are elaborate. They
were well described in the argument of the Assistant Solicitor General as
a maze of regulation."), from Congress's relatively recent entry into
the regulation of the tobacco industry. The thirty-five years that have
passed since passage of the FCLAA, with its limited scope when compared
to federal regulation of fields such as maritime commerce, can hardly serve
as a basis for supplanting the traditional state authority in matters of
public health, particularly that of minors. See Medtronic, 518 U.S. at 475
("Throughout our history the several States have exercised their police
powers to protect the health and safety of their citizens. Because these
are 'primarily, and historically, . . . matters of local concern,' the 'States
traditionally have had great latitude under their police powers to legislate
as to the protection of the lives, limbs, health, comfort, and quiet of
all persons.'" (citations omitted)). The "presumption against
preemption" applies with full force to this case.
|||We turn, therefore, to our task of identifying "the domain expressly
preempted" by § 1334(b), id. at 484, keeping in mind (1) the presumption
that Congress does not intend to supplant state regulation in the area of
public health and the health of minors without a clear and manifest indication
of such preemptory purpose, see id. at 485, and (2) that our decision must
"rest primarily on a 'fair understanding of congressional purpose,'"
as informed by the text, the statutory framework, and the purpose of the
FCLAA as a whole, id. at 486.
|||2. The Preemptive Scope of § 1334(b)
|||Section 1334(b) of the FCLAA states that "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(b). To date, four other federal courts of appeals have addressed
the preemptive scope of this provision. See Lindsey v. Tacoma-Pierce County
Health Dep't, 195 F.3d 1065 (9th Cir. 1999); Greater New York Metro. Food
Council v. Giuliani, 195 F.3d 100 (2d Cir. 1999); Federation of Advertising
Indus. Representatives, Inc. v. City of Chicago, 189 F.3d 633 (7th Cir.
1999) ("FAIR"); Penn Advertising of Baltimore, Inc. v. Mayor &
City Council of Baltimore, 63 F.3d 1318 (4th Cir. 1995). We find the Second
and Seventh Circuits' decisions in Giuliani and FAIR to be particularly
|||In Giuliani, the United States Court of Appeals for the Second Circuit
focused on the ambiguity in the phrase "with respect to" advertising
and promotion. See Giuliani, 195 F.3d at 105. As the court noted, a "hyper-literal"
reading of that phrase would preempt a range of state regulation which Congress
surely did not intend to affect. Id. For example, "it could divest
states and municipalities of authority to prevent tobacco advertisers from
posting their ads in public buildings even though smoking is legally prohibited
there. Or . . . it could lead to the conclusion that 'states [are] without
power to prohibit a cigarette company from handing out free cigarettes in
an elementary school yard.'" Id. (citing FAIR, 189 F.3d at 633).
|||Given the ambiguity of the preemption provision, the Second Circuit endeavored
to discern Congress's intent in enacting § 1334(b). Relying on the FCLAA's
statement of purpose at 15 U.S.C. § 1331, the court reached two conclusions
regarding the intended scope of § 1334(b): first, that Congress sought to
inform the public of the health risks associated with smoking, and second,
that while so informing the public Congress also sought to protect the national
economy from the burdens that would result from a multitude of "'diverse,
non-uniform, and confusing' advertising standards." See Giuliani, 195
F.3d at 106. The court logically concluded that § 1334(b)'s preemption provision
was intended to further that congressional balance by preempting state regulations
that would frustrate federal law by creating a "'multiplicity of conflicting
|||Applying this reading of § 1334(b) to a 1000-foot rule essentially identical
to that imposed by the Massachusetts regulations, the court found that the
regulation was not preempted by the FCLAA because it "[did] not impose
obligations 'with respect to' advertising as that phrase is used in § 1334(b)."
Id. at 109. The court found that the 1000-foot restriction "do[es]
not touch upon Congress's 'comprehensive Federal program' to control cigarette
advertising information. The restrictions do not, for example, burden advertisers
with a duty to warn. Nor do they impose content and format requirements
on advertising information." Id. Although the court did recognize that
different states and municipalities might impose differing regulations with
regard to the location of tobacco advertising, "[d]ivergent 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." Id.
|||Finally, the court in Giuliani also emphasized that "the presumption
against preemption is particularly strong here, as these provisions are
the sort thought to lie within the heartland of the states' historic powers."
Id. (citing Medtronic, 518 U.S. at 485). Both zoning regulations and regulations
directed at the safety and welfare of minors, the court said, "lie
peculiarly within the states' historic police powers." Id. (citing
Packer Corp. v. Utah, 285 U.S. 105, 111 (1932) (zoning restrictions on cigarette
advertising), and Toy Mfrs. of America, Inc. v. Blumenthal, 986 F.2d 615,
620 (2d Cir. 1992)). Far from the clear and manifest intent required to
preempt state regulation in such areas, the court noted that the legislative
history of § 1334(b) suggests that Congress specifically intended to give
such traditional state laws "wide berth." Id. at 10 (citing S.
Rep. No. 91-566, reprinted in 1970 U.S.C.C.A.N. at 2663). Based on the foregoing,
the Second Circuit held that the 1000-foot restriction was not preempted
by the FCLAA.
|||The United States Court of Appeals for the Seventh Circuit used a similar
analysis to find that § 1334(b) did not preempt Chicago regulations restricting
the advertising of cigarettes and alcoholic beverages. Relying largely on
the Supreme Court's decision in New York State Conference of Blue Cross
& Blue Shield Plans v. Travelers Insurance, 514 U.S. 645 (1995), in
which the court considered the similar preemption provision of the Employee
Retirement Income Security Act (ERISA), the Seventh Circuit concluded that
"[i]f the FCLAA language ('with respect to advertising and promotion')
were viewed with an 'uncritical literalism,' the effect would be to 'read
Congress's words of limitation as mere sham, and to read the presumption
against pre-emption out of the law whenever Congress speaks to the matter
with generality.'" FAIR, 189 F.3d at 637 (quoting Travelers Ins., 514
U.S. at 656).
|||As in Giuliani, the FAIR court then turned to an examination of the legislative
history and overall scheme of the FCLAA and § 1334(b) to discern the intended
scope of the preemption provision. See id. (relying on Cipollone v. Liggett
Group, Inc., 505 U.S. 504 (1992), and Medtronic, 518 U.S. at 484-85). After
examining the statement of purpose found in § 1331 and the legislative history
of § 1334(b), the court concluded:
|||We therefore must read the language of the FCLAA preemption provision
in light of Congress's desire not only to ensure uniformity of regulation
with respect to matters of labeling and advertising, but also in light of
the manifest congressional concern in preserving for the states the remainder
of their traditional police powers. FAIR, 189 F.3d at 638.
|||Noting that the placement and manner of outdoor advertising is a matter
of traditional local concern, the court declined to imply preemption of
a regulation of such local interest and importance. Id. at 639. The court
further concluded that the restrictions posed no danger of interfering with
the FCLAA's advertising and labeling scheme, and held that they were not
preempted by § 1334(b). *fn5
|||We are persuaded by the reasoning of our sister circuits that Congress
did not intend § 1334(b) to preempt the kind of tobacco advertising restrictions
imposed by the Massachusetts regulations. The regulations do not interfere
with the cigarette and smokeless tobacco labeling and advertising scheme
established by Congress, and to the extent that they may create differing
restrictions on the location of advertising in various states and municipalities,
such divergent restrictions are indistinguishable from the existing zoning
regulations in place throughout the country. *fn6
We do not consider such location restrictions to present the kind of "diverse,
non-uniform, and confusing" advertising standards with which Congress
was concerned when it enacted the FCLAA. See Giuliani, 195 F.3d at 106-07;
see also 15 U.S.C. § 1331. *fn7 Thus,
we hold that the Massachusetts regulations are not preempted by the FCLAA.
|||B. First Amendment Challenge to Advertising Restrictions
|||The next claim, urged by all three groups of tobacco companies, is that
the advertising restrictions imposed by the Massachusetts regulations violate
the companies' First Amendment right to freedom of speech. We find this
|||1. Level of Review
|||The tobacco companies first argue that the advertising and promotion restrictions
at issue here should be subject to a more searching review than the "intermediate"
scrutiny traditionally applied in commercial speech cases. See generally
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York,
447 U.S. 557, 561-66 (1980). According to the companies, the regulations
target tobacco advertising because of its content and therefore should be
subject to a more demanding First Amendment analysis. The Attorney General,
in contrast, characterizes the regulations as content-neutral and urges
us to deferentially apply the Central Hudson test for commercial speech
|||First, we repeat our conclusion (reached in the preemption analysis) that
the regulations are content-based. The regulations apply only to advertising
"the purpose or effect of which is to promote the use or sale of the
[tobacco] product." 940 C.M.R. §§ 21.03, 22.03 (defining "advertisement").
Advertising of other products is not restricted by the regulations, nor
is tobacco-related speech that has a purpose or effect other than promotion,
such as public health campaigns. Contrary to the Attorney General's suggestion,
this type of focus is plainly content-based.
|||Such conclusion does not, however, require a greater level of scrutiny
than the standard Central Hudson analysis. The tobacco companies argue that
the regulations amount to inherently suspect "viewpoint discrimination"
because they ban only speech that invites the purchase of tobacco products.
However, the Supreme Court has made clear that even regulations which single
out the promotional speech of a particular industry are analyzed under the
Central Hudson test. See Greater New Orleans Broadcasting Ass'n v. United
States, 527 U.S. 173, 184 (1999) (applying Central Hudson to regulations
restricting advertisements for casino gambling).
|||The tobacco companies nevertheless argue that our decision in AIDS Action
Committee v. MBTA, 42 F.3d 1, 11 (1st Cir. 1994), supports the application
of a higher level of scrutiny. In that case, Boston's transportation authority
refused to display public service advertisements for the AIDS Action Committee
on the purported basis that the ads "describe[d] sexual content in
a patently offensive way," id. at 5, but agreed to carry ads with similar
or more explicit content by other speakers. We held that this disparity
gave rise to an appearance that the suppression of speech was based on the
identity or perceived viewpoint of the speaker, particularly because the
transportation authority did not even attempt to articulate a neutral justification
for the disparate treatment. See id. at 11. In contrast, the Attorney General
here has not distinguished among speakers by disparately applying a facially
neutral provision. On their face, the regulations restrict the promotion
of tobacco products, regardless of brand or manufacturer, and permit nonpromotional
speech relating to tobacco products by any speaker, tobacco manufacturers
and sellers included. The companies make no allegation that the Attorney
General has disparately, much less discriminatorily, applied these provisions.
Under these circumstances, we do not see the danger of viewpoint discrimination
that was present in AIDS Action Committee, *fn8
and we decline to impose a higher level of review on such basis.
|||In declining to impose a more searching review than that mandated by Central
Hudson, we are aware of the recent rumblings from members of the Supreme
Court and others suggesting that the Central Hudson test may be in need
of minor or major modification. See, e.g., Greater New Orleans Broad. Ass'n,
527 U.S. at 184 ("[C]ertain judges, scholars, and amici curiae have
advocated repudiation of the Central Hudson standard and implementation
of a more straightforward and stringent test for assessing the validity
of governmental restrictions on commercial speech."). Nevertheless,
it is not our role to anticipate changes in well-established constitutional
doctrines. See Buzynski v. Oliver, 538 F.2d 6, 7 (1st Cir. 1976) ("Although
there are circumstances in which it is appropriate for a court of appeals
to disregard the teachings of earlier Supreme Court decisions, generally
the Supreme Court has the exclusive authority to overrule its decisions."
(citation omitted)). We are therefore bound to apply the Central Hudson
test, as is, to this case.
|||2. The Central Hudson Test
|||In Central Hudson Gas & Electric Corp. v. Public Service Commission
of New York, 447 U.S. 557, 566 (1980), the Supreme Court summarized the
four-part analysis used to determine the constitutionality of governmental
restrictions on commercial speech:
|||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.
|||Under this analysis, the government bears the burden of identifying a
substantial interest and justifying the challenged restriction. See Greater
New Orleans Broad. Ass'n, 527 U.S. at 183. Mindful that the four prongs
of the analysis are "to a certain extent, interrelated," id.,
we will consider them seriatim.
|||a. Non-misleading Speech Concerning Lawful Activity
|||Although the Attorney General is unwilling to entirely concede that the
tobacco advertisements at issue here are truthful, non-misleading speech
about a lawful activity, he was willing to assume that much for the purposes
of summary judgment. We therefore need not explore this prong of the analysis.
|||b. Substantial Interest
|||The second prong of the Central Hudson test requires that the state identify
a substantial state interest underlying the challenged regulations. Several
such interests have been identified by the Attorney General.
|||The first state interest proffered by the Attorney General is the Commonwealth's
desire "to eliminate deception and unfairness in the way [tobacco products]
are marketed, sold and distributed in Massachusetts." 940 C.M.R. §§
21.01, 22.01. Leaving aside for now whether such interest is served by the
regulations, we have no doubt that it is a substantial state interest. Indeed,
the state interest in protecting consumers from false and misleading commercial
information was the original justification for a more permissive First Amendment
analysis in the commercial speech area. See, e.g., Central Hudson, 447 U.S.
|||The next state interest identified by the Attorney General is the Commonwealth's
aim "to address the incidence of [tobacco] use by children under legal
age." 940 C.M.R. § 21.01; see also id. § 22.01. This general state
interest is subdivided in the briefs into two distinct, but related, interests.
First, the Attorney General asserts a state interest in ensuring compliance
with state law, which prohibits the sale of tobacco products to minors,
and we consider that interest substantial. Second, the Attorney General
relies on the state's interest in protecting the health of children from
the negative effects associated with the use and abuse of tobacco products,
which is also substantial.
|||The tobacco companies argue that Massachusetts cannot have a substantial
interest in depriving consumers of truthful information in a paternalistic
effort to protect them by "keeping them in the dark." We certainly
agree with this proposition insofar as it relates to adult consumers, in
which circumstance the First Amendment mandates that the consumer, rather
than the government, judge the value of the information being communicated.
See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503-04 (1996).
However, the courts have consistently recognized that the government may
act more protectively where children are concerned. See Erzoznick v. City
of Jacksonville, 422 U.S. 205, 212 (1975) ("It is well settled that
a State or municipality can adopt more stringent controls on communicative
materials available to youths than on those available to adults.");
Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 329-30 (4th Cir. 1996) (citing
cases in support of the proposition that "children deserve special
solicitude in the First Amendment balance because they lack the ability
to assess and analyze fully the information presented through commercial
media"). Where, as here, the state acts to protect minors, its substantial
interest is not vitiated by the admittedly paternalistic nature of its regulation.
|||c. Whether the Regulations "Directly Advance" the State's Interests
|||A great deal of the written and oral argument submitted in this case has
concerned the third prong of our Central Hudson analysis -- whether the
Massachusetts regulations "directly advance" the Commonwealth's
interests. After a careful review of the record, we hold that the regulations
satisfy this prong of our inquiry.
|||The Supreme Court has recently emphasized that the government's burden
regarding this third prong of the Central Hudson analysis
|||"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." Consequently, "the regulation
may not be sustained if it provides only ineffective or remote support for
the government's purpose." Greater New Orleans Broad. Ass'n, 527 U.S.
at 188 (quoting Edenfield v. Fane, 507 U.S. 761, 770-71 (1993), and Central
Hudson, 447 U.S. at 564). The companies and the Attorney General dispute
both whether the harms recited by the Commonwealth are real and whether
the regulations will alleviate them to a material degree. Although the two
aspects of the inquiry are closely interrelated in this case, we address
them separately for the sake of convenience and, hopefully, clarity.
|||i. Real Harms
|||Like so many contentious issues in the law, the dispute over whether the
harms cited by the Attorney General are "real" is in part a dispute
over the level of generality at which the inquiry itself should be made.
The Attorney General, adopting a broader perspective, urges that the record
and common sense amply support his contention that there is a problem with
underage tobacco use, in the United States generally and in Massachusetts
in particular. The Attorney General further asserts that this problem of
underage tobacco use is substantially related to, and thus may be materially
alleviated by restrictions upon, advertising. The tobacco companies, on
the other hand, urge a more narrow perspective. They argue that the Attorney
General has failed to demonstrate a teen cigarette smoking problem in Massachusetts,
and that he certainly has shown no problem with underage consumption of
smokeless tobacco or cigars. Furthermore, the companies charge, to the extent
that there may be a problem with tobacco use by minors, the record does
not establish any connection between such underage use and the types of
indoor and outdoor advertising and promotion restricted by the regulations.
The Attorney General's principal response to the companies' emphasis on
product-specific analysis, which response was accepted in large part by
the district court, is that the three types of tobacco products subject
to the regulations pose similar health concerns and similar dangers in the
way they are promoted, and thus may and should be regulated pursuant to
one common scheme.
|||First of all, we have some difficulty accepting the Attorney General's
suggestion that "what is good for cigarettes is good for cigars,"
at least in the First Amendment context. To accept such a proposition could
conceivably open the door to unforeseen and unjustified speech regulation
on the mere theory that products are related or share ingredients. On the
other hand, of course, the Attorney General need not offer separate justifications
for regulation of green and red M & M's, to give an exaggerated example,
and our commercial speech doctrine must allow the legislative and executive
branches to make reasonable economies in their regulation of comparable
products. However, we need not decide today whether, and under what circumstances,
a "regulation by association" scheme might be acceptable in the
commercial speech context, because we find that the Attorney General has
offered sufficient product-specific evidence regarding cigarettes, smokeless
tobacco, and cigars to demonstrate that the dangers posed by underage use
of each is a "real harm" and that the regulations can be reasonably
expected to alleviate those harms to a material degree.
|||Before addressing the product-specific information presented by the Attorney
General, however, we do note that he is not the first to recognize 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., 120 S. Ct. 1291, 1315 (2000).
After conducting the most extensive rulemaking procedure in history, the
Food and Drug Administration promulgated regulations not unlike those issued
by the Attorney General. See 61 Fed. Reg. 44619-45318. Although the Supreme
Court recently struck down the FDA regulations because it found that the
agency did not have authority to regulate tobacco products, the Court explicitly
emphasized "the seriousness of the problem that the FDA has sought
to address" and stated that the agency had "amply demonstrated"
its significance. Brown & Willamson, 120 S. Ct. at 1315. At this level
of generality, we feel that the risk of harm posed by tobacco use, and particularly
by underage tobacco use in this country, is established beyond reasonable
dispute. Again, we need not decide whether this alone satisfies the "real
harm" aspect of the "directly advances" prong, however, because
the Attorney General has provided us with additional information to support
his view that underage use of cigarettes, smokeless tobacco products, and
cigars poses a real danger to the Commonwealth of Massachusetts.
|||The Attorney General's case is strongest against cigarettes, which have
become emblematic of the health risks associated with tobacco use in this
country. In his summary judgment papers and in his submissions to this Court,
the Attorney General refers at length to precisely the kinds of studies
and summaries of statistical and anecdotal evidence accepted by the Supreme
Court to justify commercial speech restrictions. See Florida Bar v. Went
For It, Inc., 515 U.S. 618, 626-28 (1995) ("[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.'" (citations omitted)); Affidavit of Michael G. Hering
and exhibits thereto, Joint Appendix at 1184-3087. These submissions are
replete with evidence that smoking, particularly by minors, poses a significant
risk to the public health and is a widespread practice. See, e.g., U.S.
Dep't of Health & Human Servs., Preventing Tobacco Use Among Young People:
A Report of the Surgeon General (1994), Joint Appendix at 1203, 1223 ("Cigarette
smoking during childhood and adolescence produces significant health problems
among young people, including cough and phlegm production, an increased
number and severity of respiratory illnesses, decreased physical fitness,
and unfavorable lipid profile, and potential retardation in the rate of
lung growth and the level of maximum lung function."); Massachusetts
Dep't of Pub. Health, Adolescent Tobacco Use in Massachusetts: Trends Among
Public Schools Students 1984-1996 (1997), Joint Appendix at 2272, 2281.
As such, they are more than sufficient to demonstrate that the harm cited
by the Attorney General is a real one.
|||i(B). Smokeless Tobacco
|||The makers of smokeless tobacco products present two principal arguments
for why, even assuming that Massachusetts could justify its regulation of
cigarettes, the use of smokeless tobacco products does not present a comparable
problem. First, the smokeless tobacco producers argue that the vast majority
of the information relied upon by the Attorney General to justify the regulations
concerns cigarettes specifically and not smokeless tobacco. Second, they
point to studies indicating that, whatever national trends may exist, smokeless
tobacco consumption by minors has actually decreased in Massachusetts during
recent years. We address these arguments in turn.
|||The smokeless tobacco producers are correct that the Attorney General
has been able to garner more information on the use and negative effects
of cigarettes than of other tobacco products. However, the Attorney General
does point to various sources specific to smokeless tobacco, including the
relevant parts of the FDA regulations struck down but factually accepted
by the Supreme Court in Brown & Williamson, as well as independent published
studies. See, e.g., Choi et al., Does advertising promote smokeless tobacco
use among adolescent boys? Evidence from California, Joint Appendix at 2516.
Furthermore, the state's brief sets forth substantial anecdotal evidence
detailing the highly successful marketing of smokeless tobacco to young
consumers beginning in the late 1960s and early 1970s. Of course, the companies
object that this data is dated and that it does not specifically evaluate
the impact of outdoor advertising such as that principally targeted by the
Massachusetts regulations, but we think that such objections demand more
than Central Hudson requires. The Attorney General has adequately demonstrated
that smokeless tobacco consumption by underage users poses a real danger.
|||The companies' second point is that the Massachusetts Department of Health
study upon which the Attorney General largely relies actually shows a sharp
decline in the use of smokeless tobacco by young people in Massachusetts
between 1993 and 1996, in which time such use fell from 8.0 percent to 4.5
percent. See Mass. Dep't of Pub. Health, Independent Evaluation of the Massachusetts
Tobacco Control Program, Joint Appendix at 3752. Although we understand
the companies' frustration at increased regulation while current efforts
seem to be bearing fruit, we do not think that partial successes in fighting
underage smokeless tobacco use robs the Commonwealth of its authority to
remedy what remains of the problem. Even according to the study emphasized
by the smokeless tobacco makers, a not-insignificant number of minors continues
to use smokeless tobacco products in Massachusetts, and nothing submitted
by the companies contradicts the Attorney General's evidence that this remaining
use poses a significant health risk to those users, now and as they age.
We therefore conclude that the Attorney General has satisfied this aspect
of his burden with regard to smokeless tobacco products.
|||The cigar makers largely echo the first argument pressed by the smokeless
tobacco makers above -- that the Attorney General impermissibly relies on
studies and anecdotal evidence concerning cigarette smoking to justify regulation
of cigars. Again, we find that the state has presented sufficient evidence
to support its conclusion that underage cigar smoking constitutes a real
|||The Attorney General relies heavily on a monograph published by the National
Cancer Institute in 1998. See National Cancer Inst., Monograph 9, Cigars:
Effects and Trends (1998), Joint Appendix at 2572. As that study sets forth
in more detail, cigar smoking presents a serious risk of disease, comparable
in type and severity to that attributed to cigarette smoking. See id. at
2588. The study also concludes that the "data on cigar use among adolescents
is also alarming," referring specifically to Massachusetts for evidence
of "a substantial level of cigar use, even prior to high school."
Id. at 2598. We think that this evidence weighs very heavily in the Attorney
General's favor. *fn9
|||The Attorney General also relies on anecdotal evidence of the successful
advertising campaign waged by smokeless tobacco in the 1960s and 1970s (mentioned
above) and a similar successful campaign by cigarette manufacturers in the
1940s and 1950s. He argues that these advertising campaigns have demonstrated
a willingness and an effectiveness on the part of tobacco producers in the
use of "image-related" advertisements to stimulate tobacco markets,
and that minors are particularly susceptible to this type of advertising.
The companies argue that this anecdotal evidence is dated and cannot establish
a link between youth cigar smoking and advertising, particularly not the
kind of advertising at issue here. Once again, we think that the standard
urged by the tobacco companies demands more than is required by Central
Hudson and its progeny. The Attorney General has sufficiently demonstrated
that cigar use among minors poses a real danger in Massachusetts.
|||ii. Whether the Restrictions Will Alleviate the Cited Harms to a Material
|||The second aspect of the third prong of the Central Hudson analysis is
also hotly disputed by the parties. The tobacco companies argue that the
Attorney General has failed entirely to demonstrate that advertising causes
underage smoking or that advertising restrictions of the type at issue here
will have any effect on underage tobacco use, much less result in a material
reduction. The companies pointedly attack the studies submitted by the Attorney
General and assert that several of those very studies decline to assert
a cause-effect relationship between advertising and smoking. The Attorney
General responds with a common sense argument on the causal relationship
between advertising and product use, supported by a number of studies and
anecdotal evidence demonstrating at least a correlation between advertising
and tobacco use in general and among children in particular. We think that
the Attorney General has carried his burden.
|||The "common sense" argument asserted by the Attorney General
-- that advertising has some cause-effect relationship with consumption
-- is not a novel one. Indeed, the Supreme Court recognized in Central Hudson
itself that "[t]here is an immediate connection between advertising
and demand." 447 U.S. at 569. More recently, in Rubin v. Coors Brewing
Co., 514 U.S. 476, 487 (1995), the Court found it "assuredly a matter
of 'common sense' that a restriction on advertising of a product characteristic
will decrease the extent to which consumers select a product on the basis
of that trait." But see Greater New Orleans Broad. Ass'n, 527 U.S.
at 189 ("While it is no doubt fair to assume that more advertising
would have some impact on overall demand for gambling, it is also reasonable
to assume that much of that advertising would merely channel gamblers to
one casino rather than another."). After all, the five leading cigarette
manufacturers spent approximately $5.66 billion on advertising and promotion
in 1997, and nearly $300 million on outdoor advertising alone. See Federal
Trade Comm'n, Report to Congress for 1997, Joint Appendix at 2544. It would
defy common sense to conclude that for-profit corporations which have demonstrated
their ability to survive and flourish in the market would pour such tremendous
resources into advertising without at least some calculation that their
efforts would have a substantial effect on consumption of their product.
As a general proposition, we think that common sense does support the Attorney
|||The Attorney General, however, does not rest on common sense arguments
alone. He cites myriad sources to support his proposition that tobacco advertising
and tobacco use are causally related, including notably a Surgeon's General's
report concluding that "cigarette advertising appears to increase young
people's risk of smoking," see U.S. Dep't of Health & Human Servs.,
Preventing Tobacco Use Among Young People: A Report of the Surgeon General
(1994), Joint Appendix at 1203, and the FDA's extensive investigation and
finding that "advertising plays a material role in the decision by
those under 18 to use tobacco products," see 60 Fed Reg. 44466 (1996),
Joint Appendix at 1513. Nearly two thousand pages of the joint appendix
in this case consist of reports and surveys by governmental, scientific,
and academic entities submitted by the Attorney General in support of his
dual proposition that tobacco use by minors poses a real risk and that tobacco
advertising contributed materially to this problem. *fn10
Although we decline to summarize that material here, we have no difficulty
concluding that it is sufficient to satisfy the Attorney General's burden
of demonstrating that the restrictions will alleviate the harm caused by
underage smoking to a material degree.
|||The smokeless tobacco and cigar manufacturers also repeat the argument
that the majority of the materials submitted by the Attorney General concern
primarily or exclusively cigarettes, and that such materials cannot justify
restrictions on smokeless tobacco and cigar advertisements. We agree that
the cigarette regulations are the supported most abundantly, in terms of
the sheer size of record submitted by the Attorney General. That, however,
is not determinative. The product-specific information submitted by the
Attorney General, taken in conjunction with the other statistical and anecdotal
information presented, is sufficient to carry his burden. See Florida Bar,
515 U.S. at 626-28.
|||Finally, the cigar manufacturers argue that the Massachusetts regulations
cannot reasonably be expected to reduce cigar consumption in Massachusetts,
because the advertising of cigars is nearly nonexistent in comparison with
the pervasive promotion of cigarettes. For instance, the cigar makers do
not use any billboards in Massachusetts, and they spent only $50,500 on
outdoor advertising in the entire United States during 1997, compared to
the nearly $300 million spent by the leading cigarette manufacturers in
that year. While this argument is a forceful one, it fails to persuade us
that the regulations are unjustified. Although the regulations will necessarily
have a small impact on the amount of existing advertising (because relatively
little exists), they will remove any outdoor advertising that does currently
fall within 1000 feet of a school or playground, thus protecting those particular
children. As the Attorney General has demonstrated, children exposed to
tobacco advertising near their schools and play areas are likely to be affected
by its message. Although fewer children will be affected by cigar advertising,
simply because there is much less of it, the relative lack of current cigar
advertising also means that the burden imposed on cigar advertisers is correspondingly
small. We cannot conclude that, under these particular circumstances, the
First Amendment bars the Attorney General from regulating cigar advertising
of the type targeted here, especially when we consider that he has done
so as part of a rational and well-founded comprehensive tobacco regulatory
|||In sum, we conclude that the Attorney General has carried his burden of
demonstrating that the regulations will "directly advance" his
goals of reducing both underage tobacco use and tobacco sales to minors.
*fn11 Less advertising may reasonably
be expected to reduce the consumption of tobacco products by current users,
insofar as there will be fewer reminders to stop at the store to pick up
a pack of cigarettes, a can of smokeless tobacco, or a cigar (at least on
the way to and from schools and playgrounds, where Massachusetts has focused
its efforts). Moreover, the restrictions on advertising should reduce the
number of new or future users by reducing the visibility of tobacco products
to minors, by dispelling the advertising-encouraged notion that tobacco
products are pervasive and form part of the "good life," and by
eliminating the psychological incentives to tobacco use presented by things
as simple as attractive ad color and design (aspects of advertising which
we agree may reasonably be assumed to have greater effect on young people).
Because the Attorney General has submitted sufficient data to demonstrate
the harms posed by underage tobacco use and to support his view that the
regulations will diminish underage tobacco consumption in both of these
ways, we conclude that he has satisfied his burden under prong three of
the Central Hudson analysis.
|||d. The Regulations Do Not Restrict More Speech than Necessary
|||The fourth and final prong of the Central Hudson analysis requires that
the government not restrict more speech than necessary to achieve its purposes.
In Board of Trustees of the State University of New York v. Fox, 492 U.S.
469, 477 (1989), the Supreme Court explained that this is not a "least
restrictive means" standard. Summarizing its holding, the Court stated:
|||What our decisions require is a "'fit' between the legislature's
ends and the means chosen to accomplish those ends"--a fit that is
not necessarily perfect, but reasonable; that represents not necessarily
the single best disposition but one whose scope is "in proportion to
the interest served;" that employs not necessarily the least restrictive
means but . . . a means narrowly tailored to achieve the desired objective.
Within those bounds we leave it to governmental decisionmakers to judge
what manner of regulation may best be employed. Id. at 480.
|||We hold that the Massachusetts advertising regulations satisfy this requirement.
|||The companies' first argument that the Massachusetts regulations are not
sufficiently tailored to satisfy the First Amendment is that, although the
regulations facially apply only to areas within 1000 feet of a school or
playground, the actual effect of the regulations is to prohibit virtually
all advertising in as much as ninety percent of the land area of Massachusetts'
three largest metropolitan areas, Boston, Worcester, and Springfield. Although
this is certainly a valid point (even the Attorney General concedes that
the reach of the regulations is substantial), it does not vitiate the tailoring
of the speech restrictions in this case. While the amount of land within
1000 feet of a school or playground may be substantial, its sheer size cannot
defeat the obvious connection to the state's interest in protecting minors,
which is served directly by limiting application of the regulations to areas
near schools and playgrounds -- areas where children are more likely to
be. We also find no indication that the Attorney General adopted the 1000-foot
rule as a proxy or pretext for a more general ban on tobacco advertising,
in the Commonwealth's largest metropolitan areas or elsewhere in the state.
Under the circumstances, we do not think that the substantial geographical
reach of the regulations violates the First Amendment.
|||The companies also challenge the 1000-foot rule itself, arguing that it
is both arbitrary and overly extensive. However, the Supreme Court in Fox
explicitly noted "the difficulty of establishing with precision the
point at which restrictions become more extensive than their objective requires,
and provide[d] the Legislative and Executive Branches needed leeway"
in fashioning effective but proportionate commercial speech regulations.
See Fox, 492 U.S. at 480. The Attorney General based his 1000-foot determination
primarily on the FDA's implementation of a comparable rule in its 1996 regulations,
which, as noted, followed an extensive rulemaking procedure. Such reliance
on the conclusions of a lengthy federal investigation should hardly be called
arbitrary. Furthermore, it is worth noting that the industry has voluntarily
refrained from billboard advertising within 500 feet of schools since 1990,
which suggests that they recognize the value of such restrictions in principle.
The contention that 500 feet is acceptable but that 1000 feet is somehow
arbitrary strikes us as splitting hairs, particularly because this type
of determination is generally better suited for legislative and executive
decisionmakers than for the courts; in any event, it is a greater judicial
second-guessing than is appropriate under the Central Hudson analysis for
commercial speech restrictions. In the end, one thousand feet -- a mere
three city blocks -- does not strike us as an unreasonable distance in which
to assume that minors present at or on their way to or from schools and
playgrounds would be most affected by outdoor advertising. Whether or not
it is a perfect "fit," it is a reasonable one, and that is what
is required by Central Hudson and Fox.
|||Oddly enough, the district court struck down the 1000-foot boundary in
the context of indoor advertising, concluding that the Attorney General
had offered no basis for it other than the FDA regulations, which themselves
did not restrict indoor ads. The Attorney General has appealed this aspect
of the district court's decision, and we reverse, largely for reasons mentioned
in the previous paragraph. It is hardly unreasonable for the Attorney General
to determine that stores within 1000 feet of schools and playgrounds --
that area where children are most likely to be present -- will also be more
likely to receive minors as customers. In fact, we do not doubt that the
companies would have challenged the rationality of the Attorney General's
regulatory scheme if it did not include restrictions on advertisements at
the point of sale. 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 determination falls within that range of reasonableness
in which the Attorney General is best suited to pass judgment. In any event,
the burden on speech imposed by the provision is very limited (there are
no restrictions whatsoever on advertising above the five-foot level, so
long as it is not visible from the street), and we find the compromise to
be narrowly tailored and a reasonable "fit." Fox, 492 U. S. at
|||The tobacco companies' next argument is that the Attorney General may
not regulate commercial speech when there exist several reasonable alternatives
that would restrict no or less speech. In particular, the companies argue
that Massachusetts should be required to more stringently enforce current
laws prohibiting tobacco sales to minors, and perhaps make tobacco use itself
illegal for minors, before restricting tobacco advertising and promotion.
We are not persuaded by this line of argument in this case. First, Massachusetts
has not chosen speech restrictions as its first or only punch in its fight
against underage tobacco use. To the contrary, the Commonwealth is widely
considered a leader in many aspects of tobacco regulation. See, e.g., Center
for Disease Control, Best Practices for Comprehensive Tobacco Control Programs
(Aug. 1999), Joint Appendix at 684 (referring throughout to Massachusetts
as a leader in tobacco control). Although the companies question this characterization,
they offer no evidence to the contrary, nor do they offer any persuasive
evidence that the state is neglecting to conscientiously and vigorously
enforce its current laws. Second, in light of Fox, we do not think that
Massachusetts should be required to criminalize underage tobacco use before
it can regulate tobacco advertising around its schools and playgrounds.
There are legitimate reasons why the state may not want to make underage
tobacco use a crime; after all, the state's motivation is to protect children,
not to institutionalize them. Third, the principal function of advertising
is to propose a commercial transaction, in this case the sale of tobacco
products -- which, where minors are concerned, is already illegal in Massachusetts.
And finally, while criminalization of underage tobacco use or possession
(or stricter enforcement of existing laws, for that matter) might reduce
the amount of current tobacco use, it is unlikely to serve the government's
interest in reducing the demand for tobacco products among young people.
The advertising regulations, in contrast, can reasonably be expected to
reduce demand. For all of these reasons, we conclude that Massachusetts
need not exhaust yet more alternatives in its ongoing efforts to curb underage
tobacco use before restricting commercial speech in the targeted way that
it does with the regulations.
|||The next area of dispute between the parties concerns the alternative
modes of communication left open to tobacco manufacturers and retailers.
The Attorney General emphasizes that the regulations do not restrict advertising
and promotion in print media, such as newspapers and magazines. The tobacco
companies, in response, note that tobacco advertising is already prohibited
from television and radio. *fn12 They
also point out that, while newspaper and magazine advertising may be a viable
alternative for major manufacturers and some large retailers (as evidenced
in part by the prevalence of cigarette and cigar ads in magazines), such
media are cost-prohibitive for many vendors of tobacco products such as
small groceries and convenience stores. These smaller vendors of tobacco
products, the companies argue, are left without any reasonable alternative
means for communicating with the public.
|||Although we find this argument quite a strong one, it does not require
invalidation of the regulations because it does not vitiate the narrow tailoring
of the restrictions on speech. After all, only businesses within 1000 feet
of a school or playground -- the area reasonably determined by the Attorney
General to present the greatest exposure to minors -- will be affected by
the regulations. And even within those areas, the regulations as written
explicitly permitted retailers to display so-called "tombstone"
signs. See 940 C.M.R. § 21.04(6). These signs would have allowed retailers
to communicate to legitimate consumers the availability of tobacco products,
albeit less forcefully than larger, more colorful advertising. Unfortunately
(for tobacco sellers), the district court found this aspect of the regulations
preempted by the FCLAA, and the Commonwealth has not appealed that ruling.
We nevertheless are of the view that this compromise established by the
regulations, as written, is indicative of the kind of "calculation"
by the Attorney General that the First Amendment requires of government
when it seeks to restrict commercial speech. See Fox, 492 U.S. at 480. And,
although the striking of the tombstone exception measurably increases the
burden on tobacco sellers (or rather removes an alleviating factor), *fn13
we cannot conclude that this vitiates the reasonable fit otherwise established
by the regulations.
|||Finally, the tobacco companies suggest that the regulations are not sufficiently
tailored because they deny communication to a large number of adults for
the sake of protecting children. However, the cases referred to by the companies,
such as United States v. Playboy Entertainment Group, Inc., No. 98-1682,
2000 WL 646196 (U.S. May 22, 2000), Reno v. ACLU, 521 U.S. 844 (1997), and
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), do not support their
position. First, each of those cases dealt with expressive speech, rather
than commercial speech, and therefore applied a "strict scrutiny"
standard to invalidate the laws, rather than the intermediate scrutiny applicable
to commercial speech cases. Furthermore, even in that context, the Court
held that "the objective of sheltering children does not suffice to
support a blanket ban if the protection can be accomplished by a less restrictive
alternative." Playboy Entertainment Group, 2000 WL 646196, at *7 (emphasis
added); see also Reno, 521 U.S. at 874 ("[The law's] burden on adult
speech is unacceptable if less restrictive alternatives would be at least
as effective in achieving the legitimate purpose that the statute was enacted
to serve."). Here, although the geographical scope of the advertising
restrictions is substantial, we do not find the restrictions equivalent
to a "blanket ban" on speech. Furthermore, it is difficult to
imagine how Massachusetts might effectively shield children from tobacco
advertising near schools and playgrounds without incidentally burdening
adult communication in that area as it does. The regulations themselves
address this problem by providing an exception for indoor advertising in
any establishment that excludes minors, see C.M.R. § 21.04(5)(b), as well
by the very fact that the advertising restrictions are focused on areas
where children are most likely to be present. Consequently, we think that
the burden imposed on adult commercial communication within the 1000-foot
perimeter is not so great as to render the regulations invalid under Central
|||In conclusion, we hold that the advertising restrictions imposed by the
Massachusetts regulations do not violate the First Amendment. The regulations
directly advance the substantial interests identified by the Attorney General,
and their restrictions on commercial speech are proportionate to the state's
purposes. As the Supreme Court has stated, "[w]ithin those bounds we
leave it to governmental decisionmakers to judge what manner of regulation
may best be employed." Fox, 492 U.S. at 480.
|||C. First Amendment Challenge to Restrictions on Retail Practices
|||The manufacturers of smokeless tobacco and cigars also challenge the restrictions
imposed by the Massachusetts regulations on the use of "self-service"
displays as a retail outlet practice. See 940 C.M.R. § 22.06. The district
court held that this practice is not protected by the First Amendment because
it does not constitute speech. Although the issue is by no means an easy
one, we agree and affirm.
|||On appeal, the tobacco companies argue that self-service displays are
"a specialized mode of speech" that communicates information to
the consumer and proposes a commercial transaction in much the same way
as does advertising. Although we accept the tobacco companies' proposition
that self-service displays often do have some communicative commercial function
(covered as they often are in logos and other advertising mechanisms), the
actual restriction imposed by the regulations is not on speech, but rather
on the physical location of actual tobacco products. A familiar analogy
illustrates this point. If sellers are so inclined, we see nothing in the
regulations prohibiting them from displaying empty tobacco product containers
in display cases, so long as no actual tobacco product is so displayed.
In that circumstance, just like at the local video store, the consumer can
peruse the relevant commercial information at his or her leisure before
approaching the sales counter to make an actual purchase. For the vast majority
of tobacco products, nearly all of which are distributed in sealed packaging
which the consumer may not open and inspect before purchase, we think that
this type of regulation poses no cognizable burden on speech, and any secondary
imposition is surely so narrow as to be justified by the significant interests
served by the regulations.
|||We do recognize that the sale of higher-end cigars poses a somewhat different
circumstance. According to the cigar manufacturers, cigar retailers traditionally
allow consumers pre-purchase access to cigars so that the consumer may make
his or her selection on the basis of a number of objective and subjective
factors including the aroma and feel of the cigar. Unlike the distribution
of packaged cigars and little cigars, this specialized retail practice would
in fact be burdened by prohibitions on self-service displays, and would
implicate Central Hudson scrutiny if the First Amendment applies to such
a retail practice.
|||However, we need not decide whether this particular form of self-service
retail practice constitutes commercial speech protected by the First Amendment,
because the regulations pass muster under Central Hudson even assuming arguendo
that the commercial speech analysis applies. For the reasons set forth at
length above, we conclude that the Attorney General has adequately demonstrated
the substantial nature of the state's interests, as well as the general
proposition that restrictions on advertising and promotion may reasonably
be expected to directly advance those interests. It is apparent that limiting
self-service displays and placing tobacco products behind the sales counter
will aid in the Commonwealth's efforts to curb the sale of tobacco products
to underage consumers and directly advance the state's goals. Finally, the
regulations are more than sufficiently tailored to the goals of the regulation,
not only because they leave open retail schemes such as those used by video
stores, but also because the prohibition on self-service displays does not
apply to "[s]elf-service displays that are located within adult-only
retail facilities." 940 C.M.R. § 22.06(3)(c). A tobacco specialty store
can therefore avoid any burden presented by the regulation by simply closing
the store to children, who cannot lawfully purchase tobacco products in
any event. We find the fit between ends and means to be very reasonable,
and we therefore conclude that the restrictions on self-service displays
|||D. Challenges to the Cigar Warnings Requirements
|||In addition to their challenges to the restrictions on advertising, promotion,
and self-service displays, the cigar companies also challenge the warning
scheme created by the Massachusetts regulations. Under that scheme, all
packages and advertising of cigars must include a warning stating (1) that
cigar smoke contains carbon monoxide and nicotine or (2) that cigars are
not a safe alterative to cigarettes. See 940 C.M.R. §§ 22.04-22.05. The
warnings must occupy twenty-five percent of the front or top panel of the
package (whichever is larger) and twenty percent of any advertisement, see
id. §§ 22.04(2), 22.05(2), although that area may be used for any federal,
state, or local warning so long as the Massachusetts warning remains clear
and conspicuous, see id. § 22.04(2)(c). The use of a pre-printed sticker
affixed to the package or advertisement constitutes compliance. See id.
|||1. First Amendment Claim
|||The cigar companies' first argument posits that the warnings requirements
violate the First Amendment. The district court rejected this argument,
and we affirm for substantially the reasons set forth in the lower court's
opinion. See Lorillard II, 84 F. Supp. 2d at 197-98.
|||At the outset, we note that warnings schemes similar to that imposed by
the Massachusetts regulations have been repeatedly sustained by the courts.
See, e.g., Zauderer v. Office of Disciplinary Counsel of the Supreme Court
of Ohio, 471 U.S. 626, 650-53 (1985). Furthermore, the cigar warnings were
specifically designed to "fill the gap" in federal law, which
requires similar warnings for cigarettes and smokeless tobacco products
but not for cigars; this federal scheme has been in place since 1965 and
its validity is well established.
|||As the Supreme Court made clear in Zauderer, there are "material
differences between disclosure requirements and outright prohibitions on
speech," 471 U.S. at 650, such that "the First Amendment interests
implicated by disclosure requirements are substantially weaker than those
at stake when speech is actually suppressed," id. at 651 n.14. Therefore,
although the commercial speech analysis applies, the Supreme Court has held
that "an advertiser's rights are adequately protected as long as disclosure
requirements are reasonably related to the State's interest in preventing
deception of consumers." Id. at 651.
|||On appeal, the cigar companies do not challenge the substantiality of
the state's interest in informing consumers of the health risks associated
with cigar smoking. Nor do they dispute that the regulations are reasonably
related to that interest. Rather, the companies assert that the regulations
are nevertheless unconstitutional because the very size of the required
warnings (twenty-five percent of the main panel of packaging or twenty percent
of advertising) "unduly burdens" speech. Cf. id. at 651 ("We
recognize that unjustified or unduly burdensome disclosure requirements
might offend the First Amendment by chilling protected commercial speech.").
|||With respect to the packaging requirements, the companies argue that the
warnings are unconstitutional because the Attorney General failed to prove
that the Commonwealth's purposes could not be equally well served by warnings
covering only, for example, ten percent of the front of top panel of the
package. This argument, however, was explicitly rejected by the Supreme
Court in Zauderer, where the Court declined to apply a "'least restrictive
means' analysis" to disclosure requirements and stated: "[W]e
do not think it appropriate to strike down such requirements merely because
other possible means by which the State might achieve its purposes can be
hypothesized." Id. at 651 n.14. Because the packaging requirements
are reasonably related to a substantial state interest and do not unduly
burden interstate commerce, they are valid.
|||With regard to the advertisement warning requirements, the companies argue
that the twenty-percent coverage of the warnings will so burden cigar manufacturers
that they will cease advertising altogether. The companies offer precious
little to support this difficult-to-believe proposition, and we find it
unpersuasive. Other industries, including the manufacturers of cigarettes
and smokeless tobacco products, have successfully incorporated warning schemes
into their advertising practices, and cigars present no special considerations
that lead us to believe a different result will ensue here. Similar to the
restrictions upheld in Zauderer, Massachusetts "has not attempted to
prevent [cigar makers] from conveying information to the public; it has
only required them to provide somewhat more information than they might
otherwise be inclined to present." Id. at 650. As such, the advertising
restrictions do not violate the First Amendment.
|||2. Commerce Clause Claim
|||Finally, the cigar companies claim that the cigar warning requirements
imposed by the regulations unduly burden interstate commerce in violation
of the Commerce Clause. We agree in part.
|||a. Advertising Requirements
|||Section 22.05 of the regulations makes it unlawful "for any persons
to advertise or cause to be advertised within Massachusetts any cigar or
little cigar unless the advertising bears one of the warning statements
. . . and the warning statement . . . comprises 20% of the area of the advertisement
and is in the format required." As the district court, appellants,
and the Attorney General all apparently agree, this language applies, on
its face, to advertisements in national magazines sold in Massachusetts
as well as to advertising on the Internet if viewed from an Internet terminal
in Massachusetts. The district court, although recognizing the burden on
interstate commerce that would result from a plain reading of the regulation,
adopted a narrow interpretation under which § 22.05 did not apply to national
magazines and Internet advertising, and upheld the regulation. While we
agree with the district court's evaluation of the burden that would result
from a facial application of the regulation, we think that the provision
is not fairly susceptible to the narrowing construction, and we find that
it unduly burdens interstate commerce.
|||The Supreme Court summarized the standard for evaluating nondiscriminatory
state regulations on commerce in Pike v. Bruce Church, Inc., 397 U.S. 137,
142 (1970): "Where the statute regulates even-handedly to effectuate
a legitimate local public interest, and its effects on interstate commerce
are only incidental, it will be upheld unless the burden imposed on such
commerce is clearly excessive in relation to the putative local benefits."
The warning requirements, as they apply to advertisements, satisfy the first
inquiry of the Pike analysis uncontroversially: informing consumers of the
health risks associated with cigar consumption is unquestionably a legitimate
local public interest. However, even accepting the Attorney General's further
position that any effect on interstate commerce is only incidental, the
resulting burden on interstate commerce is clearly excessive, even in relation
to the Commonwealth's strong interest in informing consumers of health risks.
|||The plain language of the regulations, which makes it unlawful to "cause
to be advertised" cigar products in Massachusetts, imposes liability
on manufacturers for advertising in national magazines that are distributed
in the Commonwealth, as well as for advertising on the Internet which can
be viewed from a terminal in Massachusetts. *fn14
As the district court recognized, this "would place a great burden
on interstate commerce since it would require the Massachusetts Warning
to be carried by a national magazine in order to ensure that any copies
ending up in Massachusetts carry the Warning." Lorillard II, 84 F.
Supp. 2d at 203. The court also concluded that "the Commonwealth's
local interest in capturing national magazines [and Internet media] is outweighed
by the burden it would place on interstate commerce." Id. We agree
with this evaluation of the burden imposed by the regulations, and we similarly
conclude that in this respect § 22.05 runs afoul of the Pike analysis.
|||The district court, however, endeavored to save the regulations from invalidation
by adopting a narrow interpretative gloss to avoid the constitutional problems
posed by a facial reading. With little if any support in the language of
the regulations, the court held that they would not apply to magazines of
truly national distribution, unless the magazine had a regional or Massachusetts
version, nor to Internet media. Id.
|||Although federal courts may in some circumstances adopt a "narrowing
construction to which the law is fairly susceptible," Rhode Island
Assoc. of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 36 (1st Cir. 1999),
the courts must also take care not to trample the legislative or executive
province of state authorities by making unduly substantive additions or
changes to laws and regulations. As the companies point out, the district
court's interpretative gloss may pose its own problems and ambiguities,
such as the determination of whether a magazine is "truly national"
in scope. We also are skeptical of the court's reasoning that Internet advertisements
are not "within" Massachusetts; although we understand the court's
point, and appreciate the difficulties inherent in regulation of speech
in "cyberspace," the plain language of the regulations covers
a person or entity that advertises on any Internet site viewable from a
terminal in Massachusetts. Most important, there is simply no basis in the
language or history of § 22.05 to support the narrow reading of the district
court. See Erzoznick v. City of Jacksonville, 422 U.S. 205, 216 (1975) (rejecting
narrowing interpretation where, inter alia, "the ordinance by its plain
terms is not susceptible to a narrowing construction"). In sum, although
there can be no easily and brightly demarcated line between proper narrowing
construction and judicial overreaching, we conclude that the regulations
are simply not "fairly susceptible" to the district court's narrowing
interpretation. Rhode Island Assoc. of Realtors, 199 F.3d at 36.
|||We therefore hold that the warnings requirements for advertising are unconstitutional.
Although appropriate intrastate application of these or similar restrictions
may be permissible, § 22.05 does not lend itself to judicial parsing, and
we leave it to the Attorney General, if he so wishes, to craft a constitutional
warnings requirement for media and other cigar advertising.
|||b. Packaging Requirements
|||The cigar companies also challenge the provision making it unlawful to
"manufacture, package, import for sale or distribute within Massachusetts
any manufactured cigar or manufactured little cigar the package of which
does not bear" the required warning. 940 C.M.R. § 22.04(1). As all
parties seem to agree, this language imposes liability on a manufacturer
whenever one of its cigars appears in Massachusetts without the required
warning, even when the sale is conducted by third parties without the knowledge
or consent of the manufacturer. We think that this provision burdens interstate
commerce in an impermissible manner.
|||As an initial matter, we would note that we do not find Pike problems
with the Attorney General's labeling scheme in general. Similar warnings
are required on a range of products by a number of states, see, e.g., California
Health & Safety Code § 104550 (cigar labels and warnings); Ala. Code
§ 8-19-5(23) (making it unlawful to affix a required revenue stamp to improperly
labeled cigarette packages); New York Alcoholic Beverage Control Law § 107-a
(authorizing and governing state labeling scheme for alcoholic beverages),
and the burden on manufacturers and retailers of requiring state-specific
packaging, while significant, does not generally outweigh the benefits of
informing the public of serious health issues. We generally agree with the
Attorney General that the companies' interest in the efficiency of a uniform
national labeling system cannot override the Commonwealth's substantial
interest in protecting its citizens. Although it might not be ideal for
the companies to have to coordinate all Massachusetts distribution through
a central point to affix labels, this option certainly would give the manufacturers
adequate room within which to maneuver, without imposing any undue burden
on interstate commerce.
|||However, there is one aspect of the regulations that renders them unduly
burdensome, and that is § 22.05's imposition of liability for third party
action. As mentioned above, the regulations impose liability on the manufacturers
for every import, sale, or distribution of an improperly labeled package
in Massachusetts, even when the sale or distribution is made by a third
party unconnected with the manufacturer, such as a mail-order seller in
another state or any other distributer, wholesaler, or retail seller that
sells cigars to Massachusetts consumers independent of the manufacturer.
Under this scheme, the manufacturers may not safely label only those packages
intended for Massachusetts; instead, to protect themselves against liability
for conduct totally without their control, the manufacturers have no choice
but to include the Massachusetts warnings on all packages, just in case
one should later appear in Massachusetts through unforeseen channels. This
harsh practical effect of the regulations stands in sharp contrast to all
other warnings schemes of which the Court is aware, which typically impose
liability on the ultimate seller, thus containing the law's effect intrastate
and also allowing all affected parties to take the necessary precautions
to comply with the law and avoid substantial liability. In this respect,
we conclude that the benefit derived from the regulations is clearly outweighed
by the substantial burdens placed on interstate commerce.
|||Unlike the advertising requirements, the labeling provisions are not easily
susceptible to parsing of what is constitutional and what runs afoul of
the Commerce Clause. Therefore, although we would find many aspects of the
package labeling provisions to pass constitutional muster, we must invalidate
them in their entirety and leave it to the Attorney General to reformulate
them, if he so desires, in a manner consistent with this decision and the
Constitution. We therefore hold 940 C.M.R. § 22.04 to be unconstitutional
and without effect, except insofar as it provides the warnings and format
specifications required in 940 C.M.R. § 22.05.
|||For the reasons set forth above, we hold that the Massachusetts regulations
are not preempted by federal law, do not violate the First Amendment, and
do not violate the Commerce Clause except for 940 C.M.R. § 22.04 and § 22.05.
The judgment of the district court is
|||Affirmed in part, reversed in part.
|||*fn1 The appellants in these consolidated
appeals include manufacturers of cigarettes, smokeless tobacco products,
|||*fn2 This aspect of the district court's
decision has not been appealed and therefore is not before us.
|||*fn3 Although the FCLAA applies only
to cigarettes, the smokeless tobacco companies join the cigarette makers'
challenge because they contend that the regulations may not be severed to
preserve the smokeless tobacco provisions if the cigarette provisions are
declared invalid. We do not reach this aspect of the companies argument
because we hold that the regulations are not preempted by the FCLAA.
|||*fn4 The district court did invalidate
one aspect of the regulations under the First Amendment, finding that the
Attorney General had failed to demonstrate that the point-of-sale provisions
requiring indoor advertisements to be at least five feet from the floor
were sufficiently tailored to serve the government's interests. See Lorillard
II, 84 F. Supp. 2d at 192-93.
|||*fn5 Both the FAIR and the Giuliani
courts found that "tombstone" provisions similar to that invalidated
by the district court were preempted by § 1334(b). See FAIR, 189 F.3d at
640; Giuliani, 195 F.3d at 108.
|||*fn6 The Fourth Circuit, in Penn Advertising,
63 F.3d at 1324, found that Baltimore's restrictions on outdoor cigarette
advertisements were not preempted by § 1334(b). Although we do not adopt
that court's apparent conclusion that location restrictions do not constitute
a "'prohibition based on smoking and health,'" id., we do agree
with the general conclusion that Congress did not intend § 1334(b) to preempt
restrictions of the kind at issue there and in this case.
|||*fn7 We also note that the Ninth Circuit,
in Lindsey, 195 F.3d at 1073, concluded that a county ordinance banning
all outdoor tobacco advertising was preempted by § 1334(b). That court determined
that "[d]espite the holdings of Penn Advertising, FAIR, and Giuliani,
the text of the FCLAA's preemption provision clearly preempts a ban on outdoor
advertising because such a ban constitutes a 'requirement or prohibition
based on smoking and health . . . with respect to the advertising or promotion
of any cigarettes.'" Id. (quoting 15 U.S.C. § 1331). With all due respect,
we conclude that the court's analysis fails to avoid the "uncritical
literalism" that the Supreme Court has cautioned us against, Travelers
Ins., 514 U.S. at 656, and we disagree that "'[t]here is no good reason
to believe that Congress meant less than what it said,'" Lindsey, 195
F.3d at 1073, in the phrase "with respect to advertising." We
find the decisions of the Second and Seventh Circuits more in line with
our reading of Congress's purpose, and more in line with our understanding
of the Supreme Court's instructions in the area of federal preemption.
|||*fn8 Notwithstanding the tobacco companies'
cries of mistreatment, the context in which the Massachusetts regulations
were promulgated simply does not compare to that surrounding the suppression
of speech in AIDS Action Committee. In that case, the suppression was directed
at a group advocating sexual health practices, particularly with regard
to AIDS -- an issue that evokes deep feelings and often prejudices in our
society. Furthermore, the suppression of speech in AIDS Action Committee,
which was done with no contemporaneous explanation of reasons or basis,
also came after a previous ad campaign had provoked public complaints which
included a substantial display of homophobia. See AIDS Action Committee,
42 F.3d at 3. We found those particular circumstances to give rise to a
presumption of viewpoint discrimination, but we did not suggest that ordinary
commercial speech regulations, such as those at issue in this case, would
give rise to a similar presumption absent comparable circumstances, which
are simply not present here.
|||*fn9 The study also sheds light on the
FDA's decision to not regulate cigars when it regulated cigarettes and smokeless
tobacco in 1996, abstention much touted by the cigar companies in their
briefs. According to the monologue, data on youth cigar usage was largely
unavailable until recently. See Cigars: Effects and Trends, Joint Appendix
|||*fn10 To be sure, the companies have
presented studies in which no correlation or causal relationship was found
between advertising and tobacco use. They also are critical of several of
the studies cited by the Attorney General. However, the fact that there
may exist differences of opinion on this issue is insufficient to deprive
Massachusetts of its ability to enact regulations based on a well-founded
conclusion that advertising restrictions will reduce tobacco use among young
|||*fn11 We are not persuaded that the
regulations further the state's interest in prohibiting the dispersion of
false and misleading information to consumers. However, because the other
interests identified by the Attorney General are directly advanced, this
failure does not require invalidation of the regulations.
|||*fn12 Congress prohibited such advertising
of cigarettes and little cigars in 1971, see 15 U.S.C. § 1335, and of smokeless
tobacco products in 1986, see 15 U.S.C. § 4402(f).
|||*fn13 We do note that, even under
the district court's decision, which was premised on the content-based nature
of the tombstone provision, the Commonwealth remains able to promulgate
a new exception provision that does not dictate the content of a small information
sign communicating to legitimate customers the availability of tobacco products,
if the Commonwealth so desires.
|||*fn14 On their face, the regulations
arguably impose liability on the print and Internet media, as well.
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