Federal Preemption Now a Barrier to Local Tobacco Ordinances

By Ronald L. Scott
Health Law & Policy Institute

Until recently, tobacco control advocates were mostly concerned about preemption in the context of state laws that prevent local jurisdictions from enacting laws more stringent than state law mandates.  The recent U.S. Supreme Court decision in Lorillard v. Reilly, 121 S. Ct. 2404 (2001) shifts the focus to federal preemption.

In Lorillard, manufacturers and sellers of cigarettes, smokeless tobacco, and cigars challenged Massachusetts’s regulations that restricted the sale, promotion and labeling of tobacco products.  Plaintiffs argued that the regulations were preempted by federal law, and that the regulations violated plaintiff’s First Amendment right of commercial free speech.  The Court held that the Federal Cigarette Labeling and Advertising Act (FCLAA) preempted regulations governing outdoor and point-of-sale cigarette advertising.  The Court also held that state regulations prohibiting outdoor advertising of smokeless tobacco or cigars within 1,000 feet of a school or playground violates the First Amendment to the U.S. Constitution.  The Court struck down regulations prohibiting indoor point-of-sale advertising of smokeless tobacco and cigars lower that 5 feet from the floor of a retail establishment located within 1,000 feet of a school or playground, again citing commercial free speech concerns.

The Court did uphold regulations requiring retailers to place tobacco products behind counters, however, rejecting the argument that requiring customers to have contact with a salesperson before handling tobacco products violates the First Amendment’s protection of commercial free speech.  The Court held that Massachusetts demonstrated a “substantial, and even compelling” interest in preventing minor’s access to tobacco products, and that the state “adopted an appropriately narrow means of advancing that interest.”  Therefore, regulations requiring retailers to place tobacco products behind counters withstood First Amendment scrutiny.

The FCLAA’s preemption provision prohibits states from requiring cigarette packages to bear statements related to smoking and health other than the warning label required by federal law.  However, the FCLAA also preempts any “requirement or prohibition based on smoking and health…imposed under state law with respect to the advertising or promotion of any cigarettes the packages of which have been labeled in conformity [with federal law].”  The Court said that Congress preempted state cigarette advertising regulations because these regulations would “upset federal legislative choices” to require specific warnings (and to impose bans on cigarette advertising via television and other electronic media).

Since the preemption provision of FCLAA applies to cigarettes, manufactures and sellers of smokeless tobacco and cigars argued that the outdoor and point-of-sale regulations violated their rights of commercial free speech.  Although it largely agreed that the government has a compelling interest  in preventing underage tobacco use, the Court said “it is no less true that the sale and use of tobacco products by adults is a legal activity.”  A regulation of speech cannot impinge on a seller’s right to propose a commercial transaction or the adult listener’s ability to obtain information about lawful products.

Lorillard not only invalidates attempts by Massachusetts and other states to regulate cigarette advertising, but also invalidates local ordinances containing similar provisions, e.g., municipal ordinances prohibiting advertising close to schools and playgrounds.  Cities should revisit their regulatory efforts to ensure their ordinances withstand constitutional scrutiny.

However, Lorillard does not prevent states from regulating certain aspects of tobacco sale and use.  The Court specifically upheld state laws prohibiting tobacco sales to minors.  This decision does not affect the power of a state or political subdivision to impose taxes on tobacco.  It does not affect state laws or local ordinances prohibiting smoking in public buildings or similar police regulations.  But Lorillard does force states and municipalities to review requirements or prohibitions in the advertising of tobacco products.