The city-county health department for Tacoma, Washington enacted a regulation banning all outdoor tobacco advertising, or indoor tobacco advertising visible from outdoors. The regulation had an exception for "tombstone advertising" outside stores that sell tobacco: a simple black-on-white sign with price and availability information about the products on sale. Even these were banned if they were within 1000 feet of a school, school bus stop, or sidewalk where students pass on their way to school. Plaintiffs are convenience store owners who complain that this ordinance is preempted under the FCLAA, violates their right of commercial speech under Washington law, and is beyond the authority of the health agency under its enabling law.
The district court granted summary judgment for the defendant health agency, finding no preemption and that the regulation was within the health department's authority. This is broadly consistent with decision in the Second and Seventh Circuits, with the exception that the Second Circuit stuck the tombstone provision and allowed only the complete banning of advertisements. The Ninth Circuit Court of Appeals accepted appeal. Unlike the other two circuits, which had focused on whether the ordinance forced the companies to change the content of their ads, the court in the instant case focused on the literal language of the statute, which prohibits restrictions on ads that are related to smoking and health. Rather than reading the congressional intent as being to assure that the warnings were not obscured, the court looked to the concern that tobacco companies would be financially burdened by facing different regulations in each state and city. Pointing that the laws at issue in the Second and Seventh Circuit cases had different provisions, and that both were different from the law at issue in this case, the court concluded that policy of uniformity demanded that the law be found preempted by the FCLAA. The court reversed the district court on preemption and granted summary judgment for plaintiffs. Since this preemption finding disposed of the plaintiffs' claims, the court did not reach the commercial speech issues. With this clear split among the circuits, it is expected that this issue will end up at the U. S. Supreme Court.
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