After the Attorney General of Massachusetts (Attorney General)
promulgated comprehensive regulations governing the advertising
and sale of cigarettes, smokeless tobacco, and cigars, petitioners,
a group of tobacco manufacturers and retailers, filed this suit
asserting, among other things, the Supremacy Clause claim that
the cigarette advertising regulations are pre-empted by the Federal
Cigarette Labeling and Advertising Act (FCLAA), which prescribes
mandatory health warnings for cigarette packaging and advertising,
15 U.S.C. 1333, and preempts similar state regulations, 1334(b);
and a claim that the regulations violate the First and Fourteenth
Amendments to the Federal Constitution. In large measure, the
District Court upheld the regulations. Among its rulings, the
court held that restrictions on the location of advertising were
not pre-empted by the FCLAA, and that neither the regulations
prohibiting outdoor advertising within 1,000 feet of a school
or playground nor the sales practices regulations restricting
the location and distribution of tobacco products violated the
First Amendment. The court ruled, however, that the point-of-sale
advertising regulations requiring that indoor advertising be
placed no lower than five feet from the floor were invalid because
the Attorney General had not provided sufficient justification
for that restriction. The First Circuit affirmed the District Courts rulings that the
cigarette advertising regulations are not pre-empted by the FCLAA
and that the outdoor advertising regulations and the sales practices
regulations do not violate the First Amendment under Central Hudson Gas & Elec. Corp. v. Public Serv. Commn of N.
Y., 447 U.S. 557, but reversed the lower courts invalidation of
the point-of-sale advertising regulations, concluding that the
Attorney General is better suited than courts to determine what
restrictions are necessary.
Held:
1.The FCLAA pre-empts Massachusetts regulations governing outdoor
and point-of-sale cigarette advertising. Pp.923.
(a)The FCLAAs pre-emption provision, 1334, prohibits (a) requiring
cigarette packages to bear any statement relating to smoking
and health, other than the statement required by 1333, and (b)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 are labeled in conformity
with 1333. The Courts analysis begins with the statutes language.
Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438. The statutes
interpretation is aided by considering the predecessor pre-emption
provision and the context in which the current language was adopted.
See, e.g., Medtronic, Inc. v. Lohr, 518 U.S. 470, 486. The original
provision simply prohibited any statement relating to smoking
and health in the advertising of any cigarettes the packages
of which are labeled in conformity with the [Acts] provisions.
Without question, the current pre-emption provisions plain language
is much broader. Cipollone v. Liggett Group, Inc.,505 U.S. 504,
520. Rather than preventing only statements, the amended provision
reaches all requirement[s] or prohibition[s] imposed under State
law. And, although the former statute reached only statements
in the advertising, the current provision governs with respect
to the advertising or promotion of cigarettes. At the same time
that Congress expanded the pre-emption provision with respect
to the States, it enacted a provision prohibiting cigarette advertising
in electronic media altogether. Pp.1015.
(b)Congress pre-empted state cigarette advertising regulations like
the Attorney Generals because they would upset federal legislative
choices to require specific warnings and to impose the ban on
cigarette advertising in electronic media in order to address
concerns about smoking and health. In holding that the FCLAA
does not nullify the Massachusetts regulations, the First Circuit
concentrated on whether they are with respect to advertising
and promotion, concluding that the FCLAA only pre-empts regulations
of the content of cigarette advertising. The court also reasoned
that the regulations are a form of zoning, a traditional area
of state power, and, therefore, a presumption against pre-emption
applied, see California Div. of Labor Standards Enforcement v.
Dillingham Constr., N. A., Inc., 519 U.S. 316, 325. This Court
rejects the notion that the regulations are not with respect
to cigarette advertising and promotion. There is no question
about an indirect relationship between the Massachusetts regulations
and cigarette advertising: The regulations expressly target such
advertising. Id., at 324325. The Attorney Generals argument that
the regulations are not based on smoking and health since they
do not involve health-related content, but instead target youth
exposure to cigarette advertising, is unpersuasive because, at
bottom, the youth exposure concern is intertwined with the smoking
and health concern. Also unavailing is the Attorney Generals
claim that the regulations are not pre-empted because they govern
the location, not the content, of cigarette advertising. The
content/location distinction cannot be squared with the pre-emption
provisions language, which reaches all requirements and prohibitions
imposed under State law. A distinction between advertising content
and location in the FCLAA also cannot be reconciled with Congress
own location-based restriction, which bans advertising in electronic
media, but not elsewhere. The Attorney Generals assertion that
a complete state ban on cigarette advertising would not be pre-empted
because Congress did not intend to preclude local control of
zoning finds no support in the FCLAA, whose comprehensive warnings,
advertising restrictions, and pre-emption provision would make
little sense if a State or locality could simply target and ban
all cigarette advertising. Pp.1521.
(c)The FCLAAs pre-emption provision does not restrict States and
localities ability to enact generally applicable zoning restrictions
on the location and size of advertisements that apply to cigarettes
on equal terms with other products, see, e.g., Metromedia, Inc.
v. San Diego, 453 U.S. 490, 507508, or to regulate conduct as
it relates to the sale or use of cigarettes, as by prohibiting
cigarette sales to minors, see 42 U.S.C. 300x26(a)(1), 300x21,
as well as common inchoate offenses that attach to criminal conduct,
such as solicitation, conspiracy, and attempt, cf. Central Hudson,
supra, at 563564. Pp.2122.
(d)Because the issue was not decided below, the Court
declines to reach the smokeless tobacco petitioners argument
that, if the outdoor and point-of-sale advertising regulations
for cigarettes are pre-empted, then the same regulations for
smokeless tobacco must be invalidated because they cannot be
severed from the cigarette provisions. Pp.2223.
2.Massachusetts outdoor and point-of-sale advertising regulations
relating to smokeless tobacco and cigars violate the First Amendment,
but the sales practices regulations relating to all three tobacco
products are constitutional. Pp.2341.
(a)Under Central Hudsons four-part test for analyzing
regulations of commercial speech, the Court must determine (1)
whether the expression is protected by the First Amendment, (2)
whether the asserted governmental interest is substantial, (3)
whether the regulation directly advances the governmental interest
asserted, and (4) whether it is not more extensive than is necessary
to serve that interest. 447 U.S., at 566. Only the last two steps
are at issue here. The Attorney General has assumed for summary
judgment purposes that the First Amendment protects the speech
of petitioners, none of whom contests the importance of the States
interest in preventing the use of tobacco by minors. The third step of Central Hudson requires that the government
demonstrate that the harms it recites are real and that its restriction
will in fact alleviate them to a material degree. Edenfield v. Fane, 507 U.S. 761, 770771. The fourth step of Central Hudson requires
a reasonable fit between the legislatures ends and the means
chosen to accomplish those ends, a means narrowly tailored to
achieve the desired objective. E.g., Florida Bar v. Went For It, Inc., 515 U.S. 618, 632. Pp.2326.
(b)The outdoor advertising regulations prohibiting smokeless
tobacco or cigar advertising within 1,000 feet of a school or
playground violate the First Amendment. Pp. 2638.
(1)Those regulations satisfy Central Hudsons third
step by directly advancing the governmental interest asserted
to justify them. The Courts detailed review of the record reveals
that the Attorney General has provided ample documentation of
the problem with underage use of smokeless tobacco and cigars.
In addition, the Court disagrees with petitioners claim that
there is no evidence that preventing targeted advertising campaigns
and limiting youth exposure to advertising will decrease underage
use of those products. On the record below and in the posture
of summary judgment, it cannot be concluded that the Attorney
Generals decision to regulate smokeless tobacco and cigar advertising
in an effort to combat the use of tobacco products by minors
was based on mere speculation and conjecture. Edenfield, supra,
at 770. Pp. 2631.
(2)Whatever the strength of the Attorney Generals evidence to justify
the outdoor advertising regulations, however, the regulations
do not satisfy Central Hudsons fourth step. Their broad sweep
indicates that the Attorney General did not carefully calculat[e]
the costs and benefits associated with the burden on speech imposed. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417. The record indicates that the regulations
prohibit advertising in a substantial portion of Massachusetts
major metropolitan areas; in some areas, they would constitute
nearly a complete ban on the communication of truthful information.
This substantial geographical reach is compounded by other factors.
Outdoor advertising includes not only advertising located outside
an establishment, but also advertising inside a store if visible
from outside. Moreover, the regulations restrict advertisements
of any size, and the term advertisement also includes oral statements.
The uniformly broad sweep of the geographical limitation and
the range of communications restricted demonstrate a lack of
tailoring. The governmental interest in preventing underage tobacco use
is substantial, and even compelling, but it is no less true that
the sale and use of tobacco products by adults is a legal activity.
A speech regulation cannot unduly impinge on the speakers ability
to propose a commercial transaction and the adult listeners opportunity
to obtain information about products. The Attorney General has
failed to show that the regulations at issue are not more extensive
than necessary. Pp.3136.
(c)The regulations prohibiting indoor, point-of-sale advertising
of smokeless tobacco and cigars lower than 5 feet from the floor
of a retail establishment located within 1,000 feet of a school
or playground fail both the third and fourth steps of the Central
Hudson analysis. The 5-foot rule does not seem to advance the goals of preventing
minors from using tobacco products and curbing demand for that
activity by limiting youth exposure to advertising. Not all children
are less than 5 feet tall, and those who are can look up and
take in their surroundings. Nor can the blanket height restriction
be construed as a mere regulation of communicative action under
United States v. OBrien, 391 U.S. 367, since it is not unrelated
to expression, see, e.g., Texas v. Johnson, 491 U.S. 397, 403,
but attempts to regulate directly the communicative impact of
indoor advertising. Moreover, the restriction does not constitute
a reasonable fit with the goal of targeting tobacco advertising
that entices children. Although the First Circuit decided that
the restrictions burden on speech is very limited, there is no
de minimis exception for a speech restriction that lacks sufficient
tailoring or justification. Pp.3638.
(d)Assuming that petitioners have a cognizable speech
interest in a particular means of displaying their products,
cf. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, the regulations requiring retailers to place tobacco products
behind counters and requiring customers to have contact with
a salesperson before they are able to handle such a product withstand
First Amendment scrutiny. The State has demonstrated a substantial interest in preventing
access to tobacco products by minors and has adopted an appropriately
narrow means of advancing that interest. See e.g., OBrien, supra,
at 382. Because unattended displays of such products present
an opportunity for access without the proper age verification
required by law, the State prohibits self-service and other displays
that would allow an individual to obtain tobacco without direct
contact with a salesperson. It is clear that the regulations
leave open ample communication channels. They do not significantly
impede adult access to tobacco products, and retailers have other
means of exercising any cognizable speech interest in the presentation
of their products. The Court presumes that vendors may place
empty tobacco packaging on open display, and display actual tobacco
products so long as that display is only accessible to sales
personnel. As for cigars, there is no indication that a customer
is unable to examine a cigar prior to purchase, so long as that
examination takes place through a salesperson. Pp. 3840.
(e)The Court declines to address the cigar petitioners
First Amendment challenge to a regulation prohibiting sampling
or promotional giveaways of cigars and little cigars. That claim
was not sufficiently briefed and argued before this Court. Pp.4041.
218 F.3d 30, affirmed in part, reversed in part, and remanded.
OConnor, J., delivered the opinion of the Court, Parts I,
IIC, and IID of which were unanimous; Parts IIIA, IIIC, and IIID
of which were joined by Rehnquist, C.J., and Scalia, Kennedy,
Souter, and Thomas, JJ.; Part IIIB1 of which was joined by Rehnquist,
C.J., and Stevens, Souter, Ginsburg, and Breyer, JJ.; and Parts
IIA, IIB, IIIB2, and IV of which were joined by Rehnquist, C.J.,
and Scalia, Kennedy, and Thomas, JJ. Kennedy, J., filed an opinion
concurring in part and concurring in the judgment, in which Scalia,
J., joined. Thomas, J., filed an opinion concurring in part and
concurring in the judgment. Souter, J., filed an opinion concurring
in part and dissenting in part. Stevens, J., filed an opinion
concurring in part, concurring in the judgment in part, and dissenting
in part, in which Ginsburg and Breyer, JJ., joined, and in Part
I of which Souter, J., joined.
