US SUPREME Court rules state tobacco ad restrictions can't exceed federal law

<br>WASHINGTON (AP) _ A state government may not impose its own broad advertising restrictions on tobacco beyond the federal law that bans cigarette ads on television and requires warning labels on packages,

Thursday, June 28th 2001, 12:00 am

By: News On 6

WASHINGTON (AP) _ A state government may not impose its own broad advertising restrictions on tobacco beyond the federal law that bans cigarette ads on television and requires warning labels on packages, the Supreme Court ruled Thursday.

The tangled ruling was a victory for a group of cigarette makers that had fought proposed ad restrictions in Massachusetts as both a violation of federal law and an unconstitutional limit on the companies' free speech.

The court was unanimous on some points, but splintered on others.

The five-member conservative- to moderate wing, led by swing voter Justice Sandra Day O'Connor, ruled that the 1969 federal cigarette ad law trumps the additional rules Massachusetts wanted to impose.

The majority's ruling on that point focused narrowly on the language of the Massachusetts ad ban, but the justices' reasoning would extend to other states contemplating similar restrictions.

The court gave cigarette makers a partial free-speech victory, ruling that the state's plans for bans on outdoor advertising and signs would violate the First Amendment. The state does have the right to restrict where tobacco products may be displayed inside stores, the justices ruled.

Massachusetts' plan to ban tobacco ads near playgrounds and schools has been on hold pending the high court ruling.

Justice Clarence Thomas wrote separately to reiterate his belief that commercial speech such as advertising deserves the same kind of free-speech protection as political or artistic expression.

The case was the last decided in the term that closed Thursday, and its length and complexity revealed deep ideological differences. Justices may have been revising it until the last minute _ the opinion was handed out on regular notebook-size paper instead of in the smaller, bound form that takes more time to prepare.

Massachusetts proposed banning outdoor advertising of all tobacco products within 1,000 feet of schools and playgrounds, including ads outside stores and those inside stores that can been seen from outside.

The state law also required that tobacco products be kept behind store counters, and it prohibited advertising at children's eye level.

The state cited reports by the Food and Drug Administration and the surgeon general that tobacco advertising significantly influences children's tobacco use.

``From a policy perspective, it is understandable for the states to attempt to prevent minors from using tobacco products before they reach an age where they are capable of weighing for themselves the risks and potential benefits of tobacco use, and other adult activities,'' O'Connor wrote. ``Federal law, however, places limits on policy choices available to the states.''

Turning to the First Amendment question, the court said that states cannot simply ban advertising for a product that remains legal for sale to adults, and ``the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.''

The court rejected the tobacco companies' claims that the state went too far in trying to restrict sales of cigars and snuff to minors. The court found that there is enough evidence of a problem that the state did have an interest in keeping those products away from children.

The court upheld part of a lower federal court decision in the case, overturned part of that lower opinion and sent the case back for further review.

Tobacco companies said Massachusetts could not unilaterally impose its own restrictions because of the way Congress wrote the 1969 law that took cigarette ads off the airwaves and added warning labels to tobacco packaging.

Part of the law prohibits states from passing a ``requirement or prohibition based on smoking and health ... with respect to the advertising or promotion'' of cigarettes.

The tobacco companies argued that trumps Massachusetts' plan, which would go further than either the 1969 law or the 1998 billboard ban negotiated between states and the tobacco industry.

The Supreme Court agreed.

``To the extent that federal law and the First Amendment do not prohibit state action, states and localities remain free to combat the problems of underage tobacco use by appropriate means,'' O'Connor wrote.

The tobacco companies had asked the court to use the case to raise the level of protection for ``commercial speech,'' or advertising. Many business interests and many conservative legal theorists would like to see advertising accorded free-speech protections more like political and artistic expression.

The court generally has held that commercial speech such as advertising may be regulated under the First Amendment, but not banned.

Lawyers for Massachusetts and the federal government argued Congress did not intend to prevent states from regulating the location of ads. Only the content of ads is addressed by the federal law, lawyers for Massachusetts said.

The regulations were to have gone into effect in February, but were postponed by the tobacco companies' legal challenge.

The cases are Lorillard Tobacco v. Reilly, 00-596, and Altadis U.S.A. v. Reilly, 00-597.