## Facts

- The Massachusetts Attorney General issued 1999 regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars to reduce underage tobacco use.
- The regulations barred most outdoor tobacco advertising and any advertising visible from outside a retail location within 1,000 feet of schools or playgrounds.
- The regulations also imposed point-of-sale limits, including a requirement that in-store tobacco advertising be placed at least five feet above the floor.
- Additional rules restricted sales practices, including limits on self-service displays and product placement intended to reduce minors’ access.
- Tobacco manufacturers and retailers challenged the rules, arguing (1) federal preemption of cigarette advertising restrictions under the Federal Cigarette Labeling and Advertising Act (FCLAA) and (2) unconstitutional limits on commercial speech under the First and Fourteenth Amendments.
- The district court largely upheld the outdoor advertising and sales-practice rules but invalidated the five-foot height requirement.
- The First Circuit upheld the scheme and reinstated the five-foot rule, giving substantial deference to the Attorney General’s judgment.
- The Supreme Court granted certiorari.

## Issues

1. Whether the FCLAA expressly preempts Massachusetts restrictions on cigarette advertising, including outdoor and point-of-sale rules.
2. Whether the outdoor and point-of-sale advertising restrictions for smokeless tobacco and cigars violate the First Amendment protection for truthful, nonmisleading commercial speech under the Central Hudson test.
3. Whether the sales-practice regulations restricting youth access to tobacco products violate the First Amendment.

## Decision

- The Court held that the FCLAA preempted Massachusetts’ outdoor and point-of-sale cigarette advertising regulations.
- Applying Central Hudson, the Court held that Massachusetts’ outdoor and point-of-sale advertising restrictions for smokeless tobacco and cigars violated the First Amendment because they were more extensive than necessary to serve the state’s interest in preventing youth tobacco use.
- The Court upheld the sales-practice regulations (including limits on self-service displays and product placement) as constitutional measures aimed at restricting minors’ access rather than broadly suppressing speech.
- The Court rejected the First Circuit’s reliance on deference to the regulator where Central Hudson requires judicial evaluation of fit and supporting justification.

## Legal Principles

- An express federal preemption clause may bar state rules that impose requirements or prohibitions based on smoking and health with respect to cigarette advertising or promotion when the federal statute occupies that subject.
- Truthful, nonmisleading commercial speech about lawful products is protected by the First Amendment, even when the product is harmful and the state seeks to protect minors.
- Under Central Hudson, the government must show that speech restrictions directly advance a substantial interest and are not more extensive than necessary; broad geographic bans that effectively suppress adult access to information can fail the tailoring requirement.
- Courts must independently assess tailoring and justification under Central Hudson; regulatory judgments do not receive controlling deference where constitutional scrutiny applies.
- Regulations directed at limiting youth access to products through sales and distribution practices are more likely to be upheld than sweeping restrictions on advertising speech.

## Conclusion

The Court invalidated Massachusetts’ cigarette advertising restrictions as federally preempted and struck down the cigar and smokeless-tobacco advertising restrictions as insufficiently tailored under Central Hudson, while sustaining the state’s youth-access sales regulations as permissible measures focused on product access rather than broad suppression of commercial speech.


Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001)