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Overruled!

Brief - Court allows 1000 foot no tobacco sales buffer zone - Consolidated Cigar Corporation v. Reilly, No. 00-1107 (1st Cir. 07-17-2000)

The United States Court of Appeals for the First Circuit held that regulations promulgated by the Attorney General of Massachusetts that ban advertising for tobacco products within 1,000 feet of a public playground, park, or school, do not violate the first amendment rights of tobacco manufacturers, and are not preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA).  Consolidated Cigar v. Reilly, No. 00-11-7, 7/17/00.  Writing for the court, Chief Judge Torruella, noting that the regulations effectively would prohibit cigarette advertising in 90% of the state's three largest metropolitan areas, found that the regulations were reasonable in light of the government's interest in protecting minors from tobacco-related injuries.

The regulations restrict the sale, promotion, and labeling of cigarettes, smokeless tobacco, and cigars, and make specified conduct of manufacturers, distributors, and producers per se unfair or deceptive acts or practices under state law.  They ban promotional giveaways and mail-ordering without verification of age, as well as outdoor advertising near schools and playgrounds if it is lower than five feet from the floor of a retail establishment.  (The regulations did allow a "tombstone" sign stating that tobacco products are sold here; however the district court found that this provision was preempted, and that finding was not appealed.)  The regulations also require that all packages and all advertising of cigars include a health warning.

The court rejected plaintiffs' claim of preemption, citing cases from the Second and Seventh Circuits.  It stated that the regulations do not interfere with the Congressional scheme for labeling and advertising cigarettes and smokeless tobacco, and that the restrictions to not present the sort of standards toward which Congress directed the FCLAA.  The court did agree with plaintiffs' contention that the restrictions were content-based, but did not see a first amendment issue, because they are aimed at all tobacco products regardless of brand or manufacturer, and they permit nonpromotional speech about tobacco by any speaker. 

The court found that the regulations directly advance a substantial state interest, namely the attorney general's interest in reducing tobacco use by and tobacco sales to minors.  It did not accept the argument that the regulations were overly restrictive, finding that the 1,000-foot limitation is based on a rule implemented by the FDA after a lengthy investigation. 

On the other hand, the court struck down the cigar warning requirements.  The district court had held these to be consistent with the first amendment, as they were read not to apply to national magazines nor to the Internet.  But the court found that by requiring cigar manufacturers to include the warning on all packages, just in case one should wind up in Massachusetts, this part of the regulation unduly burdens interstate commerce.

Brief compliments of Dr. Jay Gold and the American College of Legal Medicine

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