In January 1999, the Attorney General of Massachusetts promulgated advertising regulations on cigarettes to eliminate unfair practices in the marketplace and to prevent access to and use by underage consumers. Congress enacted the Federal Cigarette Labeling and Advertising Act (FCLAA) in 1965 to govern the advertising and promotion of cigarettes. The federal provision precludes States or localities from imposing any additional statements on cigarette packages beyond those provided in the statute or any requirement based on smoking and health with respect to advertising of cigarettes.
A Federal Act may not supersede the historic police powers of the States unless that is the clear and manifest purpose of Congress.
In January 1999, the Attorney General of Massachusetts promulgated regulations governing the sale and advertisement of cigarettes, smokeless tobacco, and cigars to eliminate deception and unfair practices in the market and to prevent access to and use by underage consumers. Congress enacted the Federal Cigarette Labeling and Advertising Act (FCLAA) in 1965 to govern the advertising and promotion of cigarettes. While the preemption provision in the federal Act does not cover smokeless tobacco or cigars, the provision precludes the requirement of any additional statements on cigarette packages beyond those provided in the statute and prevents States or localities from imposing any requirement or prohibition based on smoking and health with respect to advertising and promotion of cigarettes.
Does the Federal Cigarette Labeling and Advertising Act (FCLAA) preempt the Attorney General of Massachusetts’ regulations?
Yes, the FCLAA preempts the Attorney General’s outdoor and point-of-sale cigarette advertising regulations. A distinction between the State’s concern about minors and cigarette advertising and Congress’ more general concern about smoking and health in cigarette advertising is meritless, especially when Congress amended the preemption provision in 1969 to address the former concerns. Moreover, a distinction between state regulation of the location versus the content of cigarette advertising has no legal basis in the text of the preemption provision. Congress preempted state cigarette advertising regulations like the Attorney General’s at issue because they would upset federal legislative choices to require specific warnings and to impose the ban on cigarette advertising in electronic media to address health and smoking concerns.
The text of the preemption provision must be viewed in light of the context, history, structure, and purpose. However, when Congress enacted the FCLAA, it did not intend to preempt state and local regulations of the location of cigarette advertising. Congress adopted the statute to inform the public about danger of smoking to health and to ensure that commerce not be “impeded by diverse, nonuniform, and confusing cigarette” advertisements with respect to any relationship between smoking and health. To serve the second purpose, Congress necessarily had to preempt state regulation of the content in advertising to prevent cigarette manufacturers from being forced into difficult and costly practicing of producing different packaging. However, Congress felt no need to interfere with state zoning laws or regulations prescribing limitations on the location of advertising signs or billboards.
The legislative history also indicates that Congress never intended to expand the scope of preemption beyond content restrictions. The Senate report made clear that the changes made in 1969 were to clarify the scope of the original provision, which only dealt with content restrictions. Further, the provision is ambiguous in articulating whether Congress clearly and manifestly intended to preempt States from utilizing their authority to protect the health of minors.
The Attorney General’s cigarette advertising regulations are “with respect to” advertising and promotion. The Attorney General argues that his advertising regulations are not based on smoking and health but only target youth exposure to cigarette advertising. This assertion does not have a merit. When Congress amended the preemption provision in 1969, it not only concerned itself with health warnings for cigarettes but sought to protect the public, including youth from being exposed to cigarette advertising as can be shown by Congress’ ban on electronic media advertising of cigarettes.
The Attorney General also points out that the State’s outdoor advertising regulations for cigarettes are not preempted by the federal law because they govern the location, not the content, of advertising. However, the content versus location distinction cannot be squared with the language of the preemption provision that reaches all “requirements” and “prohibitions” “imposed under State law.” Such distinction cannot be reconciled with Congress’ own location-based restriction because it only bans advertising in electronic media, not elsewhere. The Court’s role is to examine the Act as a whole and may not pick and choose which provisions in a statute it will consider.