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When Massachusetts instituted regulations limiting tobacco ads and sales, Lorillard brought suit arguing that these regulations were unconstitutional, per the First Amendment and the Supremacy Clause.
Massachusetts’s limits on tobacco advertising violated the First Amendment because they were not narrowly tailored to accomplish the state’s goal of protecting children.
The Attorney General of Massachusetts promulgated comprehensive regulations governing the advertising and sale of tobacco products such as cigarettes, cigars, and smokeless tobacco. Lorillard Tobacco Co. (Lorillard) and others in the tobacco industry challenged the regulations, arguing that the Massachusetts regulations were preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA), per the Supremacy Clause. The regulations at issue include a ban on tobacco ads and sales of tobacco within 1,000 feet of schools and playgrounds. Lorillard argued that this was an infringement on its First Amendment rights and that the regulation was more extensive than necessary.
Does the FCLAA preempt parts of the Massachusetts tobacco regulations, per the Supremacy Clause? Do parts of the tobacco regulations violate the First Amendment?
Yes and yes, the FCLAA preempts part of the Massachusetts tobacco regulations and part of the regulations also violate the First Amendment.
The FCLAA prevents states and localities from regulating the location of cigarette advertising. As to smokeless tobacco or cigar advertising within 1,000 feet of schools or playgrounds, this prohibition would prevent advertising in 87%-91% of Boston, Worcester, and Springfield. As such, these regulations would constitute an almost complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers. Thus, the Massachusetts regulations do not demonstrate a careful calculation of the speech interests involved – the uniformly broad sweep demonstrates a lack of tailoring. While Massachusetts has an interest in preventing underage tobacco use, the sale and use of tobacco products by adults is legal. Further, tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults. With these interests in mind, the Massachusetts regulations with respect to smokeless tobacco and cigars violates the First Amendment.