But see: Supreme Court strikes MA tobacco advertising regulations - Lorillard Tobacco Company v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001)
This case deals with a New York City ordinance that prohibits outdoor tobacco advertising within 1000 feet of schools or other places where children congregate. It also prohibits indoor advertising within this zone if it can be seen from outdoors. It does allow a simple "tobacco products sold here" sign on businesses within the regulated zone. Plaintiffs sought to enjoin enforcement of this ordinance on the basis that such advertising constitutes protected commercial speech and that such regulation is prohibited by the Federal Cigarette Labeling Act and Advertising Act (FCLAA), which provides:
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).
Based on this language, and without reaching any first amendment claims, the district court granted summary judgment for plaintiffs and permanently enjoined the enforcement of the law.
The Second Circuit Court of Appeals began its analysis by noting that its purpose is to carry out the intent of Congress. The FCLAA provision is so broad that, in the example from another case construing the provision, it could be claimed to prevent a state from stopping a cigarette company from handing out samples at an elementary school because this would be interfering with the promotion of cigarettes. The court found that what Congress was trying to avoid was state laws that might interfere with the warning labels specified by Congress, not with state attempts to control the general advertising of cigarettes. Using this analysis, this court had previously struck down a law requiring advertisers of cigarettes to post additional health messages. The court saw this as directly influencing the content specified by Congress and thus was preempted. In the instant case, however, except for specifying the content of the sign allowed for business in the zone, the ordinance was neutral as to the content of the ads, banning all of them equally. The court found that the complete ban was not preempted, but that the specified language for the store sign was. Thus it allowed the city to ban all advertising within the 1000-foot zone near places where children would congregate, but did not allow it to specify what type of sign would be permitted within the zone. The court did not reach the first amendment commercial speech issues because the district court had ruled only on FCLAA preemption. The case was remanded to the district court to allow it to address the commercial speech claims.
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