Nos. 00-596 and 00-597 

In the Supreme Court of the United States 

LORILLARD TOBACCO CO., ET AL., PETITIONERS 

v. 
THOMAS F. REILLY, ATTORNEY GENERAL 

OF MASSACHUSETTS 

ALTADIS U.S.A. INC., ETC., ET AL., PETITIONERS 

v. 
THOMAS F. REILLY, ATTORNEY GENERAL 

OF MASSACHUSETTS 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENT 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

DOUGLAS N. LETTER 

Attorney 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTIONS PRESENTED 

1. Whether state regulations that restrict the advertis- 
ing of tobacco products near a school or playground are 
preempted by the Federal Cigarette Labeling and Advertis- 
ing Act. 

2. Whether such regulations violate the First Amend- 
ment. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
4 

Argument: 

I. The State’s restrictions on advertising near 

schools and playgrounds are not preempted 

by FCLAA ..................................................................... 

7 

II. The State’s advertising restrictions do not 

violate the First Amendment ..................................... 

18 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Board of Trustees of the State Univ. of N.Y. v. Fox, 

492 U.S. 469 (1989) ................................................................ 

24 

Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 

(1983) ........................................................................................ 27 

California Div. of Labor Standards Enforcement v. 

Dillingham Constr., 519 U.S. 316 (1997) .......................... 

13 

Carey v Population Servs. Int’l, 431 U.S. 678 (1977) ...... 

27 

Central Hudson Gas & Elec. Corp. v. Public Serv. 

Comm’n, 447 U.S. 557 (1980) ............................. 

3, 6, 18, 23, 24 

Cincinnati v. Discovery Network, Inc., 507 U.S. 410 

(1993) ........................................................................................ 26 

Cipollone v. Liggett Group, Inc., 505 U.S. 504 

(1992) .......................................................... 

7, 8, 12, 15, 16, 17, 18 

City of Renton v. Playtime Theatres, Inc., 475 U.S. 

41 (1986) ................................................................................... 

25 

Edenfield v. Fane, 507 U.S. 761 (1993) .............................. 

20 

Egelhoff v. Egelhoff, No. 99-1529 (Mar. 21, 2001) ............ 

13 

FDA v. Brown & Williamson Tobacco Corp., 529 

U.S. 120 (2000) .............................................................. 

12, 19, 27 

FTC v. Keppel & Bro., 291 U.S. 304 (1934) ....................... 29 

(III) 

IV 

Cases—Continued: Page 

Florida Bar v. Went For It, Inc., 515 U.S. 618 

(1995) .............................................................................. 

23, 24, 25 

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 

(1996) ........................................................................................ 29 

Greater N.Y. Metro. Food Council, Inc. v. Giuliani, 

195 F.3d 100 (2d Cir. 1999), cert. denied, 529 U.S. 

1066 (2000) .............................................................................. 

14 

Medtronic v. Lohr, 518 U.S. 470 (1996) ............................. 

8, 13 

Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981) ....... 

24 

New York State Conference of Blue Cross & Blue 

Shield Plans v. Travelers Ins. Co., 514 U.S. 645 

(1995) ........................................................................................ 11 

Packer Corp. v. Utah, 285 U.S. 105 (1932) ...................... 

8, 27 

Penn Adver. of Baltimore, Inc. v. Mayor & City 

Council, 63 F.3d 1318 (4th Cir. 1995), vacated and 

remanded on other grounds, 518 U.S. 1030, readopted 

and modified on remand, 101 F.3d 332 (4th Cir. 1996), 

cert. denied, 520 U.S. 1204 (1997) ....................................... 

9 

Personnel Adm’r v. Feeney, 442 U.S. 256 (1979) ............. 

10 

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) ................ 

30 

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .... 

8 

Rubin v. Coors Brewing Co., 514 U.S. 476 (1995) ........... 

23 

Sable Communications of Cal., Inc. v. FCC, 492 U.S. 

115 (1989) ................................................................................. 

19 

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) .... 

23 

United States v. Edge Broad. Co., 509 U.S. 418 

(1993) .................................................................................... 

23, 29 

Vango Media, Inc. v. City of New York, 34 F.3d 68 

(2d Cir. 1994) .......................................................................... 

15 

Virginia State Bd. of Pharmacy v. Virginia Citizens 

Consumer Council, 425 U.S. 748 (1976) ........................... 

25 

Constitution, statutes and regulations: 

U.S. Const.: 

Art. I, § 8, Cl. 3 (Commerce Clause) .................................. 

8 

Amend. I ........................................................... 2, 3, 4, 18, 23, 30 

V 

Statutes and regulations—Continued: 
Page 

Comprehensive Smoking Education Act, Pub. L. 

No. 98-474, § 4(a), 98 Stat. 2201 ........................................... 

12 

Federal Cigarette Labeling and Advertising Act, Pub. 

L. No. 89-92, 79 Stat. 282 (15 U.S.C. 1331 et seq.) ............ 
15 

15 U.S.C. 1331 .................................................................... 
13 

15 U.S.C. 1331(1) ............................................................... 
14 

15 U.S.C. 1331(2)(B) ......................................................... 
14 

15 U.S.C. 1333 .................................................................... 
12 

15 U.S.C. 1333(a)(1) .......................................................... 
12 

15 U.S.C. 1333(a)(2) .......................................................... 
12 

15 U.S.C. 1333(a)(3) .......................................................... 
12 

15 U.S.C. 1333(b)(2) .......................................................... 
12 

15 U.S.C. 1333(b)(3) .......................................................... 
12 

15 U.S.C. 1334 .................................................................... 
4, 12 

15 U.S.C. 1334(b) ....................................................... 
passim 

15 U.S.C. 1335 .................................................................... 
2, 28 

15 U.S.C. 1336 .............................................................. 
1, 2, 28 

15 U.S.C. 1337 .................................................................... 
1 

15 U.S.C. 1339 .................................................................... 
1 

15 U.S.C. 1341 .................................................................... 
2 

15 U.S.C. 1341(a)(3) .......................................................... 
11 

15 U.S.C. 1341(a)(5) .......................................................... 
11 

Public Health Cigarette Smoking Act of 1969, Pub. L. 

No. 91-222, § 2m, 84 Stat. 88 ................................................ 

15 

15 U.S.C. 1681 ............................................................................ 
28 

15 U.S.C. 6501 (Supp. IV 1998) ............................................. 
28 

21 U.S.C. 343(r) (1994 & Supp. IV 1998) ............................. 
2, 28 

21 U.S.C. 860 ............................................................................. 
24 

42 U.S.C. 300x-26 ..................................................................... 
2 

Mass. Gen. Laws ch. 93A, § 2(a) (2001) ................................. 
3 

Mass. Regs. Code tit. 940 (2001): 

Section 21.01 ........................................................................... 

3 

Section 21.04(5)(a) .................................................................. 
2 

Section 21.04(5)(b) ................................................................. 
3 

Section 21.04(6) ...................................................................... 3 

VI 

Miscellaneous: Page 

116 Cong. Rec. (1970): 

p. 6640 .................................................................................... 17 

p. 7920 .................................................................................... 17 

p. 7921 .................................................................................... 17 

61 Fed. Reg. (1996): 

p. 1499 .................................................................................... 26 

p. 44,398 ............................................................................. 

19, 20 

p. 44,399 ............................................................................. 
19, 20 

p. 44,421 ................................................................................. 
19 

p. 44,467 ................................................................................. 
22 

p. 44,475 ................................................................................. 
20 

pp. 44,475-44,476 .................................................................... 
21 

p. 44,476 ............................................................................. 
21, 22 

p. 44,480 ................................................................................. 
21 

p. 44,482 ................................................................................. 
21 

pp. 44,487-44,489 .................................................................... 
21 

pp. 44,488–44,489 ................................................................... 
21 

p. 44,489 ................................................................................. 
21 

p. 44,490 ................................................................................. 
22 

p. 44,494 ............................................................................. 
22, 30 

p. 44,503 ................................................................................. 
22 

p. 44,504 ................................................................................. 
22 

p. 44,568 ................................................................................. 
20 

p. 44,571 ................................................................................. 
20 

p. 44,629 ................................................................................. 
19 

p. 44,730 ................................................................................. 
19 

p. 45,239 ................................................................................. 
20 

FTC, Cigarette Report for 1999 (2001) .................................. 
23 

S. Rep. No. 566, 91st Cong., 2d. Sess. (1969) ........................ 16 

In the Supreme Court of the United States 

NO. 00-596 
LORILLARD TOBACCO CO., ET AL., PETITIONERS 

v. 
THOMAS F. REILLY, ATTORNEY GENERAL 

OF MASSACHUSETTS 

NO. 00-597 
ALTADIS U.S.A. INC., ETC., ET AL., PETITIONERS 

v. 
THOMAS F. REILLY, ATTORNEY GENERAL 

OF MASSACHUSETTS 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIRST CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENT 

INTEREST OF THE UNITED STATES 

The United States has a substantial interest in the resolu- 
tion of the question whether state regulations that restrict 
the advertising of tobacco products near a school or play- 
ground are preempted by the Federal Cigarette Labeling 
and Advertising Act (FCLAA), 15 U.S.C. 1331 et seq. The 
Attorney General is responsible for enforcing FCLAA, 15 
U.S.C. 1339. In addition, FCLAA preserves the authority of 
the Federal Trade Commission (FTC) with respect to unfair 
or deceptive advertising of cigarettes, see 15 U.S.C. 1336, 
and it requires the Secretary of Health and Human Services 
(HHS) and the FTC to submit annual reports to Congress 
concerning the health consequences of smoking and current 
practices of cigarette advertising, see 15 U.S.C. 1337. The 

(1) 

2 

Secretary of HHS also administers a program to inform the 
public about any dangers to human health presented by 
smoking and to maintain liaison with state and local agencies 
in those efforts. See 15 U.S.C. 1341. Pursuant to 42 U.S.C. 
300x-26, the Secretary also makes block grants for preven- 
tion and treatment of substance abuse that are conditioned 
on the States’ taking appropriate steps to reduce the avail- 
ability of tobacco products to minors. 

The United States also has an interest in the question 
whether restrictions on the advertising of tobacco products 
near a school or playground violate the First Amendment. 
Federal law places important restrictions on commercial 
speech that threatens public health and safety, including 
commercial speech concerning tobacco products. 15 U.S.C. 
1335 (unlawful to advertise cigarettes and little cigars on any 
medium of electronic communication subject to the juris- 
diction of the Federal Communications Commission); 15 
U.S.C. 1336 (preserving FTC’s authority over unfair or 
deceptive practices in cigarette advertising); 21 U.S.C. 343(r) 
(1994 & Supp. IV 1998) (authorizing Food and Drug Admini- 
stration (FDA) to restrict labeling claims about nutrients). 

STATEMENT 

1. The Attorney General of Massachusetts has promul- 
gated regulations that restrict advertising of tobacco pro- 
ducts near a school or playground. Specifically, the regula- 
tions prohibit “[o]utdoor advertising [of tobacco products], 
including advertising in enclosed stadiums and advertising 
from within a retail establishment that is directed toward or 
visible from the outside of the establishment, in any location 
that is within a 1,000 foot radius of any public playground, 
playground area in a public park, elementary school or 
secondary school.” Mass. Regs. Code tit. 940, § 21.04(5)(a) 
(2001). The regulations also prohibit interior store advertis- 
ing of cigarettes or smokeless tobacco products within the 
1000 foot zones unless the signs are placed more than five 

3 

feet from the floor or the store is an adult-only establish- 
ment. § 21.04(5)(b). The Attorney General has declared each 
of those practices to be “unfair or deceptive acts or prac- 
tices” within the meaning of chapter 93A, § 2(a) of the Mas- 
sachusetts General Laws because they induce children to use 
tobacco products. Mass. Regs. Code tit. 940, § 21.01 (2001).1 

Tobacco manufacturers (petitioners) filed suit against the 
Attorney General of Massachusetts (the State), alleging that 
the State’s outdoor and interior store advertising restric- 
tions are preempted by FCLAA and violate the First 
Amendment. Pet. App. 6a. FCLAA’s preemption provision 
specifies that “[n]o requirement or prohibition based on 
smoking and health shall be imposed under State law with 
respect to the advertising or promotion of any cigarettes the 
packages of which are labeled in conformity with the pro- 
visions of this chapter.” 15 U.S.C. 1334(b). 

The district court held that the State’s advertising restric- 
tions are not preempted by FCLAA. The court reasoned 
that the regulations are not “based on smoking and health” 
within the meaning of FCLAA’s preemption provision 
because they are based on the location of the advertising and 
not on what the advertising communicates about the rela- 
tionship between smoking and health. Pet. App. 52a-57a. 
The district court also held that the State’s outdoor advertis- 
ing restriction does not violate the First Amendment. Ap- 
plying the analysis set forth in Central Hudson Gas & Elec- 
tric Corp. v. Public Service Commission, 447 U.S. 557 (1980), 
the district court determined that the restriction directly 

1 The regulations permit a retailer to “place one sign no larger than 
576 square inches and containing only black text on a white background 
stating ‘Tobacco Products Sold Here’ on the outside or visible from the 
outside of each location where such products are offered for sale.” Mass. 
Regs. Code tit. 940, § 21.04(6) (2001). The district court invalidated that 
provision. Pet. App. 57a. No appeal was taken from that aspect of the 
district court’s ruling, and the validity of that provision is not at issue 
here. 

4 

serves the State’s substantial interest in preventing under- 
age tobacco use and is not more extensive than necessary. 
Pet. App. 68a-83a. The court invalidated the interior store 
advertising restriction, finding it more extensive than 
necessary. Id. at 82a-83a. 

The court of appeals affirmed in part and reversed in part. 
Pet. App. 1a-45a. The court held that the advertising re- 
strictions are not preempted by FCLAA because they are 
not prohibitions “with respect to * * * advertising” within 
the meaning of Section 1334. Id. at 9a-13a. The court 
reasoned that restrictions on advertising location “do not 
interfere with the cigarette and smokeless tobacco labeling 
and advertising scheme established by Congress,” id. at 12a- 
13a, and that interpreting the phrase “with respect to * * * 
advertising” to encompass such restrictions would amount to 
“uncritical literalism,” id. at 13a n.7. 

Applying the Central Hudson analysis, the court of 
appeals also held that the State’s advertising restrictions do 
not violate the First Amendment. Pet. App. 14a-35a. The 
court concluded that the State has substantial interests in 
preventing unlawful sales of tobacco to minors and in 
protecting the health of minors from the adverse effects of 
tobacco use. Id. at 18a. The court also determined that the 
State had shown that there is a direct link between tobacco 
advertising and underage tobacco use and that limits on 
advertising near schools and playgrounds would serve the 
State’s interests in curbing underage use to a material 
degree. Id. at 21a-29a. Finally, the court concluded that the 
State’s restrictions are not more extensive than necessary, 
id. at 29a-35a, emphasizing that the restrictions are limited 
to those areas where children are most likely to be affected 
by tobacco advertising, id. at 30a-31a. 

SUMMARY OF ARGUMENT 

I. The purpose of Congress is the ultimate touchstone of 
preemption. Preemption analysis under FCLAA nonetheless 

5 

begins with an assumption that Congress did not intend to 
preempt the historic police powers of the States. Two fields 
of traditional state authority are implicated here—the 
State’s authority to regulate the location of advertising and 
its authority to protect the health and welfare of children 
from an addictive and dangerous product. 

FCLAA does not reflect any purpose by Congress to 
preempt advertising location restrictions like those at issue 
here. FCLAA’s preemption provision reaches only require- 
ments or prohibitions that are “based on smoking and 
health.” The restrictions at issue here are “based on” the 
location of the advertising; they are not “based on smoking 
and health.” Congress used the phrase “based on smoking 
and health” to limit the scope of preemption to regulations 
that require or prevent the advertisement of a message 
concerning the relationship between smoking and health. 
Because the restrictions at issue here apply without regard 
to the message of the advertising, they are not preempted. 

That conclusion is especially evident when FCLAA is 
viewed as a whole. When Congress amended the preemp- 
tion provision to its current form, it both reestablished fed- 
eral warning requirements for cigarette labels and pre- 
served the FTC’s authority to require warnings in advertis- 
ing. The preemption provision is best understood as dis- 
placing state regulations that could interfere with that 
federal warning program—such as those that require or 
prohibit health messages in labeling or advertising. State 
restrictions on the location of advertising, however, do not 
interfere with federal warning requirements. They are 
therefore not preempted. 

FCLAA’s declaration of purpose confirms that Congress’s 
intent was to establish uniform health warning requirements 
and to displace conflicting and diverse state requirements in 
that area. Congress expressed no intent to displace a State’s 
traditional authority to decide where advertising may be 
located within its borders. 

6 

II. The State’s restrictions on advertising near schools 
and playgrounds satisfy the established standards for evalu- 
ating the constitutionality of restrictions on commercial 
speech. See Central Hudson Gas & Elec. v. Public Serv. 
Comm’n, 447 U.S. 557 (1980). The State’s interests in pre- 
venting unlawful distribution of tobacco products to minors 
and protecting minors from the health consequences of 
smoking are compelling. The nicotine in tobacco is extraor- 
dinarily addictive, and one out of three children who be- 
comes addicted will eventually die from a tobacco-related 
disease. 

The State’s restrictions on advertising are also directly 
and materially related to preventing underage tobacco use. 
Evidence shows that tobacco advertising (1) creates an 
environment of “friendly familiarity” in which children view 
smoking as pervasive and acceptable, (2) seduces vulnerable 
children through techniques that associate smoking with 
excitement, glamour, and independence, and (3) leads chil- 
dren who lack maturity in judgment to underestimate the 
addictive power and health risks of tobacco products. 

By placing restrictions on advertising within 1000 feet of 
schools and playgrounds, the State has carefully tailored its 
restrictions to the areas where children are most likely to be 
repeatedly and unavoidably exposed to tobacco advertising. 
The State’s restrictions also leave petitioners with ample 
opportunities to convey information about their products to 
adults, such as through outdoor advertising outside the 
school and playground zones, and through newspapers, 
magazines, direct mail, and personal solicitation. More ag- 
gressive enforcement of the laws that prevent sale of tobacco 
products to children can only accomplish so much. Advertis- 
ing restrictions are necessary to complement enforcement 
efforts because they attack a dimension of the problem that 
enforcement efforts do not address—the demand for tobacco 
that advertising creates and nourishes in minors. 

7 

The Court should reject petitioners’ proposal to apply 
strict scrutiny to what they assert are content or viewpoint 
based restrictions on commercial speech. Central Hudson’s 
middle-tier scrutiny strikes the appropriate balance between 
a seller’s interest in proposing a commercial transaction and 
the State’s right to regulate speech that is intimately bound 
up with economic activity. Moreover, the restrictions at 
issue here are directly related to preservation of a fair bar- 
gaining process. The State justifiably views any bargain 
between tobacco manufacturers and children as inherently 
unfair, both because the State has made the sale of tobacco 
products to children unlawful, and because so many children 
lack the maturity in judgment to resist the tobacco indus- 
try’s appeals to excitement, glamour, and independence, and 
to appreciate the addictive power and health risks of tobacco 
products. 

ARGUMENT 

I. THE STATE’S RESTRICTIONS ON ADVERTISING 

NEAR SCHOOLS AND PLAYGROUNDS ARE NOT 
PREEMPTED BY FCLAA 

FCLAA’s preemption provision specifies that “[n]o re- 
quirement or prohibition based on smoking and health shall 
be imposed under State law with respect to the advertising 
or promotion of any cigarettes the packages of which are 
labeled in conformity with the provisions of this chapter.” 15 
U.S.C. 1334(b). As the courts below concluded, that provision 
does not preempt state regulations that restrict the location 
—as distinguished from the content—of advertising. 

A. When this Court considered the scope of FCLAA’s 
preemption provision in Cipollone v. Liggett Group, Inc., 505 
U.S. 504 (1992), it stressed that “[t]he purpose of Congress is 
the ultimate touchstone.” Id. at 518 (internal quotation and 
citation omitted). But the Court “start[ed] with the assump- 
tion,” that because Congress had legislated “in a field which 
the States have traditionally occupied,” “the historic police 

8 

powers of the States were not to be superseded by the 
Federal Act unless that was the clear and manifest purpose 
of Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 
230 (1947); see 505 U.S. at 516 (quoting Rice); see also 
Medtronic v. Lohr, 518 U.S. 470, 485 (1996). Two fields of 
traditional state authority are directly implicated here— 
regulating the location of advertising and the protection of 
the health and welfare of children. 

This Court recognized both of those traditional state 
interests in Packer Corp. v. Utah, 285 U.S. 105 (1932). In 
that case, the Court rejected an equal protection challenge to 
a state law that prohibited billboard advertising of tobacco 
products, but did not prohibit tobacco advertising in news- 
papers, magazines, or periodicals. The Court explained that 
it had been the State’s “persistent policy” to prevent the use 
of tobacco by minors and that the restriction on billboard 
advertising of tobacco products furthered that policy. Id. at 
108-109. The Court also noted that the message on bill- 
boards, unlike that in newspapers or periodicals, is “thrust 
upon” young people as well as adults with “all the arts and 
devices that skill can produce,” “without the exercise of 
choice or volition” on the part of the viewer. Id. at 110. The 
Court also rejected a Commerce Clause challenge to the law, 
explaining that the restriction on billboard advertising fell 
within the scope of the State’s police power because it dealt 
with a form of advertising that is “essentially local.” Id. at 
112. 

Against that background, preemption analysis must start 
with the assumption that, in enacting FCLAA in 1965 and 
amending it in 1970, Congress did not intend to displace 
state advertising restrictions like those at issue here. Like 
the Utah billboard law upheld in Packer Corp., the regu- 
lations at issue here restrict only the location of tobacco 
advertising within the State, and therefore address an 
“essentially local” problem that does not implicate the pur- 
pose of FCLAA to protect national commerce from a diver- 

9 

sity of state laws concerning the content of cigarette adver- 
tising with respect to smoking and health. See pp. 13-14, 
infra. Furthermore, like the billboard law in Packer Corp., 
the Massachusetts regulations restrict advertising in order 
to help curb underage tobacco use. 

FCLAA does not reflect any purpose by Congress to 
preempt such advertising location restrictions. That 
conclusion follows from a close examination of the text of the 
FCLAA preemption provision itself and from FCLAA’s 
purpose to specify the text of required health warnings in 
cigarette labels and advertising. 

B. FCLAA’s preemption provision reaches only prohibi- 
tions or requirements that are “based on smoking and 
health.” The restrictions at issue here are “based on” the 
location of the advertising; they are not “based on smoking 
and health” as those terms are used in 15 U.S.C. 1334(b). 
See Penn Adver. of Baltimore, Inc. v. Mayor & City 
Council, 63 F.3d 1318 (4th Cir. 1995), vacated and remanded 
on other grounds, 518 U.S. 1030, readopted and modified on 
remand, 101 F.3d 332 (4th Cir. 1996), cert. denied, 520 U.S. 
1204 (1997). 

In barring any “requirement or prohibition based on 
smoking and health,” Section 1334(b) bars the States from 
imposing any requirement or prohibition that operates on the 
basis of smoking and health. The Massachusetts regulations 
challenged here, by contrast, operate on the basis of, and 
with specific reference to, the location of the advertising, not 
its content. The regulations neither require petitioners to 
mention, nor prohibit petitioners from mentioning, any 
relationship between smoking or health in their advertising. 
Indeed, they do not even impose any duty on petitioners that 
requires them to consider any relationship between smoking 
and health in order to comply. In short, the Massachusetts 
regulations operate irrespective of any relationship between 
smoking and health. 

10 

Petitioners argued below (see Pet. App. 53a) that the 
State’s restrictions are “based on smoking and health” 
because concerns about the health consequences of smoking 
motivated the State to adopt them. The text of Section 
1334(b) substantially undermines the notion that preemption 
turns on the State’s motive in imposing the restrictions, 
rather than on the character of the restriction. Again, Sec- 
tion 1334(b) provides that “[n]o requirement or prohibition 
based on smoking and health shall be imposed under State 
law with respect to the advertising or promotion of any 
cigarettes” that are properly labeled under FCLAA. It is 
clear from the structure of the sentence that the phrase 
“based on smoking and health” modifies “requirement or 
prohibition,” not “imposed.” The phrase is therefore most 
naturally read as referring to the objective character of the 
requirement or prohibition itself, not the subjective reasons 
of the State for imposing it. If Congress had intended to 
require an inquiry into motive, it would have located the 
phrase referring to smoking and health so that it modified 
“imposed” rather than “requirement or prohibition,” and 
probably would have used words other than “based upon” 
(such as “because of” or “on account of ”).2 

By contrast, the wording Congress chose shows that it 
intended an objective inquiry, rather than a subjective one, 
and that the relevant question for purposes of preemption is 
whether the requirement or prohibition is itself written in 
terms of smoking and health. Thus, as the district court 
concluded, Section 1334(b) preempts any law that either 
“specifically requires or prevents the advertisement of a 

2 For example, Congress in that event could have drafted Section 
1334(b) to read: “No requirement or prohibition shall be imposed under 
State law, because of any relationship between smoking and health, with 
respect to the advertising or promotion of cigarettes.” Compare Person- 
nel Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (purposeful discrimination 
shown only if State acted “because of,” not “in spite of,” adverse effects on 
an identifiable group). 

11 

message concerning the relationship between smoking and 
health.” Pet. App. 57a. It does not reach restrictions that 
regulate the location of advertising. 

Petitioners’ suggested motivational interpretation also 
suffers from additional flaws. First, there is no reason to 
believe that Congress regarded state action taken because of 
concerns about the health consequences of smoking as 
inherently suspect, and designed Section 1334(b) to root out 
state action undertaken for that prohibited purpose in the 
same manner as a prohibition against state actions having a 
racially discriminatory purpose. To the contrary, Congress 
sought to encourage States to exercise their police powers to 
address the central public policy issues raised by the 
relationship between smoking and health. See p. 16, infra; 
see also 15 U.S.C. 1341(a)(3) and (5) (Secretary to maintain 
liaison with States respecting activities relating to smoking 
and health); 42 U.S.C. 300x-26 (block grants conditioned on 
States reducing availability of tobacco to minors). 

Second, almost any requirement or prohibition that a 
State would be likely to impose specifically “with respect to 
the advertising or promotion of * * * cigarettes” would 
have as its underlying motivation a concern about the health 
consequences of smoking. Interpreting “based on smoking 
and health” to refer to the State’s underlying motivation 
would therefore deprive that phrase of any significant 
limiting force. This Court has cautioned against interpreting 
a preemption provision in a manner that fails to give signifi- 
cant force to “words of limitation.” New York State Confer- 
ence of Blue Cross & Blue Shield Plans v. Travelers Ins. 
Co., 514 U.S. 645, 656 (1995). Petitioners’ proposed inter- 
pretation suffers from that vice.3 

3 Petitioners’ interpretation is equally incongruous if we assume, ar- 
guendo, that some state or local governments would adopt particular 
restrictions on cigarette advertising for reasons other than a concern 
about the relationship between smoking and health. In that event, a 
restriction that was adopted in identical form by a number of state or local 

12 

Petitioners’ contrary interpretation also would lead to 
startling consequences. Under petitioners’ interpretation, a 
State could not bar tobacco advertising at school entrances 
or at little league fields. Congress did not intend such an 
unusual result. 

C. The conclusion that location restrictions are not pre- 
empted is especially evident when FCLAA is viewed “as a 
whole.” FDA v. Brown & Williamson Tobacco Corp., 529 
U.S. 120, 132 (2000). The core of FCLAA is 15 U.S.C. 1333’s 
requirement that cigarette labels and advertising must carry 
specific warnings about the dangers of smoking. When 
Congress amended the preemption provision to its current 
form, it had not yet extended the federal warning require- 
ments to advertising. It had, however, preserved FTC’s 
authority to require warnings in advertising in order to pre- 
vent unfair and deceptive advertising practices. Cipollone, 
505 U.S. at 514-515 (1992).4 Having established federal 
warning requirements in Section 1333 for cigarette labels 
and having preserved FTC’s authority to require federal 
warnings in advertising, Congress amended Section 1334 to 
preempt state regulations that could interfere with those 
federal warning requirements. State law restrictions that 

governments and applied irrespective of the presence or absence of any 
message in the advertising concerning the relationship between smoking 
and health would be valid in some of those jurisdictions and invalid in 
others, depending upon the underlying motivation of each governmental 
entity. There is no reason to believe that Congress intended such a 
cumbersome inquiry and uneven result under a preemption provision that 
was designed to ensure national uniformity in the narrow field in which it 
operates. See pp. 13-14, infra. 

4 Congress amended FCLAA in 1984 to prescribe specific warnings in 
advertising, including billboard advertising. See Pub. L. No. 98-474, 
§ 4(a), 98 Stat. 2201; 15 U.S.C. 1333(a)(2) and (3), (b)(2) and (3). Those 
same amendments also revised the warnings on cigarette packages, re- 
placing a single warning with four warnings to appear on a rotating basis. 
See 15 U.S.C. 1333(a)(1). 

13 

either require or prohibit health messages in labeling or 
advertising meet that description. 

Congress did not, however, establish any federal require- 
ments on where billboard and other advertising could be 
located within a State. Its failure to do so is not surprising. 
Deciding where advertising may be located within a State is 
a peculiarly local function. See p. 8, supra. Having failed to 
establish any federal requirements on the subject, it is most 
unlikely that Congress intended through a general preemp- 
tion provision to supersede the State’s traditional authority 
in that area. Because state location restrictions could not 
interfere with federal warning requirements, Congress had 
no reason to preempt them. And because ordinary field and 
conflict preemption principles thus would not suggest that 
location restrictions are invalid, there is no reason why 
Section 1334(b) should be construed to require that surpris- 
ing result. See Medtronic, 518 U.S. at 500 (construing a 
general preemption provision to apply only “where a particu- 
lar state requirement threatens to interfere with a specific 
federal interest”); See also California Div. of Labor Stan- 
dards Enforcement v. Dillingham Constr., 519 U.S. 316, 336 
(1997) (Scalia, J., concurring) (ERISA’s preemption provi- 
sion should be construed to embody ordinary field and con- 
flict preemption principles); accord Egelhoff v. Egelhoff, No. 
99-1529 (Mar. 21, 2001), slip op. 1 (Scalia, J., concurring); id. 
at 1 (Breyer, J., dissenting). 

D. FCLAA’s “declaration of policy and purpose” in 15 
U.S.C. 1331 confirms that Congress intended to preempt 
only state restrictions that would create a lack of uniformity 
in the health messages required or prohibited in labeling and 
advertising. Section 1331 begins by stating that Congress’s 
purpose in FCLAA is “to establish a comprehensive Federal 
Program to deal with cigarette labeling and advertising with 
respect to any relationship between smoking and health.” 15 
U.S.C. 1331 (emphasis added). It then states that the com- 
prehensive program that FCLAA establishes is one 

14 

whereby “the public may be adequately informed about any 
adverse health effects of cigarette smoking by inclusion of 
warning notices on each package of cigarettes and in each 
advertisement of cigarettes.” 15 U.S.C. 1331(1) (emphasis 
added). Those statutory declarations demonstrate that Con- 
gress’s purpose was to establish uniform federal require- 
ments concerning statements in either labeling or advertis- 
ing about the adverse health effects of smoking. There is no 
indication in those declarations that Congress had the far 
broader intent to prevent state and local governments from 
exercising their traditional authority to determine where 
tobacco advertising may be placed. 

Subsection (2) similarly expresses Congress’s purpose 
that the comprehensive federal program it established is one 
whereby “commerce and the national economy may be * * * 
not impeded by diverse, nonuniform, and confusing cigarette 
labeling and advertising regulations with respect to any 
relationship between smoking and health.” 15 U.S.C. 
1331(2)(B) (emphasis added). That declaration confirms that 
Congress viewed as a threat to the federal program only the 
potential for diversity in state regulation that addresses 
“any relationship between smoking and health”—i.e., health 
message regulations. Diverse state requirements on where 
tobacco advertising may be located do not pose such a threat. 

Indeed, “[d]ivergent local zoning restrictions on the loca- 
tion of sign advertising are a commonplace feature of the 
national landscape and cigarette advertisers have always 
been bound to observe them.” Greater N.Y. Metro. Food 
Council, Inc. v. Giuliani, 195 F.3d 100, 109 (2d Cir. 1999), 
cert. denied, 529 U.S. 1066 (2000). Those generally appli- 
cable zoning restrictions are not even arguably preempted 
by Section 1334(b). Thus, regardless of the outcome in this 
case, a cigarette advertiser would still be required to 
“ascertain where it can permissibly advertise in light of 
diverse local zoning ordinances.” Ibid. In terms of the 

15 

policies Congress sought to advance, there is no reason to 
treat tobacco-specific location restrictions any differently. 

E. The evolution of FCLAA’s preemption provision also 
shows that it encompasses only state laws that affect the 
health messages contained in cigarette advertising. When 
originally enacted in 1965, Section 1334(b) provided: 

No statement relating to smoking and health shall be re- 
quired in the advertising of any cigarettes the packages 
of which are labeled in conformity with the provisions of 
this Act. 

FCLAA, Pub. L. No. 89-92, § 5(b), 79 Stat. 283. As explained 
by the plurality in Cipollone, 505 U.S. at 518, the phrase 
“statement relating to smoking and health” “referred to the 
sort of warning provided for in [Section 1331] which set forth 
verbatim the warning Congress determined to be appropri- 
ate.” That language therefore “only pre-empted state and 
federal rulemaking bodies from mandating particular cau- 
tionary statements.” Id. at 519-520. Thus, the original ver- 
sion of Section 1334(b) did not preempt state regulations that 
affect only the placement of advertisements. 

Congress amended Section 1334(b) in 1970, Public Health 
Cigarette Smoking Act of 1969, Pub. L. No. 91-222, § 2m, 84 
Stat. 88, and that amendment expanded the scope of the pre- 
emption provision in certain respects. As amended, Section 
1334(b) now encompasses “prohibitions” as well as “require- 
ments,” and it encompasses regulations “with respect to 
advertising,” not just regulations concerning what is “in the 
advertising.” Cipollone, 505 U.S. at 520 (plurality opinion).5 
The amendment did not, however, substantively change the 
smoking-and-health nexus of Section 1334(b). As noted in 
the plurality opinion in Cipollone, “the phrase ‘relating to 

5 See Vango Media, Inc. v. City of New York, 34 F.3d 68, 73-75 (2d Cir. 
1994) (state law requiring a company that advertises cigarettes to make 
separate public service announcements concerning health effects of 
smoking is “with respect to” advertising, and therefore preempted). 

16 

smoking and health’ * * * was essentially unchanged by 
the [amendment].” Id. at 529. Thus, like the original version 
of Section 1334(b), the amended version encompasses re- 
quirements that regulate the health messages in tobacco 
advertising, not ones that restrict advertising location. 

Nothing in the legislative history of the amendments 
suggests that Congress intended to alter the preemption 
provision’s health-message focus. The Senate Report states 
that the amendment merely “clarified” the original version 
of the preemption provision. S. Rep. No. 566, 91st Cong., 2d 
Sess. 12 (1969). The Senate Report further states that “[t]he 
state preemption of regulation or prohibition with respect to 
cigarette advertising is narrowly phrased to preempt only 
state action based on smoking and health.” Ibid. (emphasis 
added). And the Report makes clear that the amendment 
“would in no way affect the power of any state or political 
subdivision of any state with respect to the taxation or the 
sale of cigarettes to minors, or the prohibition of smoking in 
public buildings, or similar police regulations.” Ibid. (em- 
phasis added). Those statements support the authority of 
Massachusetts to restrict the location of outdoor advertising 
in order to help prevent the unlawful sale of cigarettes to 
minors. The Report also states that the preemption pro- 
vision was intended to “avoid the chaos created by a multi- 
plicity of conflicting [state or local] regulations,” id. at 12, 
something that could not occur with respect to location 
restrictions. Several members of the Conference Committee 
described the preemption provision in comparably narrow 
terms.6 

6 Representative Staggers stated that the bill “contains the preemp- 
tion applicable to states and their political subdivisions in recognition of 
the fact that the labeling, advertising, promotion, and sale of cigarettes 
insofar as they are related to smoking and health are matters of national 
concern,” and “makes clear that in order to make the legislation effective, 
States and their local divisions are not to interfere with the scheme of 

17 

F. The plurality’s conclusion in Cipollone that common 
law claims based on fraudulent misrepresentation in adver- 
tising are not “based on smoking and health” is also instruc- 
tive here. The plurality explained that the “central inquiry” 
in determining whether a common law claim is preempted is 
“whether the legal duty that is the predicate of the common- 
law damages action constitutes a ‘requirement or prohibition 
based on smoking and health’ * * *, giving that clause a 
fair but narrow reading.” 505 U.S. at 523-524. Because the 
petitioner alleged that tobacco companies had made false 
representations of material fact or concealed material facts 
concerning the health consequences of smoking (see id. at 
510, 528), his claims of fraudulent misrepresentation could 
have been viewed as falling within the text of Section 
1334(b), at least if broadly construed. The plurality con- 
cluded, however, that those claims were not preempted be- 
cause they were “predicated not on a duty ‘based on smoking 
and health’ but rather on a more general obligation —the 
duty not to deceive.” Id. at 528-529. The Court found that 
interpretation of Section 1334(b) appropriate for a number of 
reasons: (1) there was no evidence that Congress intended 
to insulate cigarette manufacturers from longstanding rules 
governing fraud; (2) the legislative history showed that 
Congress intended for the terms “based on smoking and 
health” to be construed narrowly and not to reach traditional 
exercises of the police power; (3) state law prohibitions 
against fraud do not create “diverse, nonuniform, and 
confusing” standards; and (4) holding the claim preempted 

regulation provided for in the legislation.” 116 Cong. Rec. 7920 (1970). 
Representative Satterfield similarly described the matters of national 
concern and explained that “state and local jurisdictions are not by regu- 
lation or prohibition to expand, duplicate, or change Federal regulation in 
any way or to reduce[] the legal or practical effectiveness of the warning 
statement imposed by section 4, or to otherwise interfere with this 
legislation.” Id. at 7921; cf. Pet. App. 55a n.9 (discussing 116 Cong. Rec. 
6640 (1970) (Sen. Magnuson)). 

18 

would conflict with the background presumption against 
preemption. Id. at 529 & nn.26, 27; see also id. at 530. 

A similar analysis applies here. The Massachusetts regu- 
lations do not impose on petitioners any duties “based on 
smoking and health.” Rather, they impose duties based on 
the location of the advertising.7 

II. THE STATE’S ADVERTISING RESTRICTIONS DO 
NOT VIOLATE THE FIRST AMENDMENT 

Petitioners argue that the State’s restrictions on advertis- 
ing near schools or playgrounds violate the First Amend- 
ment. Those restrictions, however, satisfy the established 
standards for judging the validity of restrictions on commer- 
cial speech. And petitioners have not offered a persuasive 
justification for departing from those standards here. 

A. Central Hudson Gas & Electric Corp. v. Public Ser- 
vice Commission, 447 U.S. 557 (1980), sets forth the stan- 
dards for evaluating the constitutionality of restrictions on 
commercial speech. Speech that concerns an unlawful 
activity or that is misleading is not protected by the First 
Amendment. To justify a restriction on speech that concerns 
a lawful activity and is not misleading, the State must show 
that (1) its asserted interests are substantial; (2) the restric- 
tion directly advances the interests; and (3) the restriction is 
not more extensive than is necessary to serve those 
interests. Id. at 566. 

For purposes of its summary judgment motion, the State 
assumed arguendo that the speech at issue here concerns a 
lawful activity and is not misleading. To succeed on its sum- 
mary judgment motion, the State was therefore required to 

7 For many of the same reasons we have set forth, the court of appeals 
in this case held that the State’s restrictions are not “with respect to 

* * * advertising” within the meaning of Section 1334(b). Pet. App. 9a- 
13a. While we share the court’s view that the State’s restrictions are not 
preempted, we believe that conclusion is more appropriately grounded in 
the preemption provision’s “based on smoking and health” limitation. 

19 

satisfy its burden of justification on the other three inquiries. 
As we now show, the State satisfied its burden. 

B. The interests asserted by the State are preventing 
unlawful sale and distribution of tobacco products to minors 
and protecting minors from the health consequences of 
tobacco use. Those interests are compelling. Sable Commu- 
nications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (gov- 
ernment has “compelling interest in protecting the physical 
and psychological well-being of minors”). Our perspective on 
that issue is shaped by the decades of study and evaluation 
by the Department of Health and Human Services, including 
the Surgeon General. Those consequences were most com- 
prehensively explained by FDA, which, after the most 
extensive rulemaking in its history, found that petitioners 
manufacture a product that is both highly addictive and 
dangerous, particularly for children. In Brown & William- 
son, supra, the Court held that FDA lacks authority to 
regulate tobacco products. It did not, however, call into 
question FDA’s core findings. 529 U.S. at 125, 127-128, 134- 
135. To the contrary, the Court concluded that “[t]he agency 
has amply demonstrated that tobacco use, particularly 
among children and adolescents, poses perhaps the single 
most significant threat to public health in the United 
States.” Id. at 161. 

The agency’s findings are worth repeating. FDA found 
that there is a consensus in the scientific community that the 
nicotine in tobacco is extraordinarily addictive. 61 Fed. Reg. 
44,629 (1996). As many as 92% of all smokers are addicted to 
cigarettes. Id. at 44,730. Tobacco use is also the single 
leading cause of preventable death in the United States. Id. 
at 44,398. More than 400,000 deaths result each year from 
tobacco-related illnesses such as cancer, respiratory ill- 
nesses, and heart disease. Ibid. In addition, tobacco use is a 
“pediatric disease,” id. at 44,421, because most people who 
use tobacco as adults began smoking regularly during child- 
hood, id. at 44,399. The average age at which children try 

20 

their first cigarette is 141/2, and 82% of adults who have ever 
smoked had their first cigarette before age 18. Id. at 45,239. 
If adolescents can be kept tobacco-free, few will start using 
tobacco as adults. Every year, however, approximately one 
million children begin to smoke, id. at 44,398, 44,568, and one 
of every three who become regular smokers will eventually 
die from a tobacco-related disease, id. at 44,399. The State 
therefore has vital interests in preventing children from 
becoming addicted to the dangerous product that petitioners 
manufacture. 

C. The State’s restrictions on advertising near schools 
and playgrounds are also “direct[ly] and material[ly]” related 
to its interests in preventing underage tobacco use. See 
Edenfield v. Fane, 507 U.S. 761, 770-771 (1993). As the court 
of appeals noted, the State submitted “[n]early two thousand 
pages of * * * reports and surveys by governmental, 
scientific, and academic entities” to support its conclusions 
that advertising significantly contributes to underage to- 
bacco use and that the State’s advertising restrictions will 
alleviate that harm to a material degree. Pet. App. 27a. The 
evidence compiled by FDA provides firm support for the 
State’s conclusions. 

FDA found that, in 1993 alone, the tobacco industry spent 
more than $6.1 billion to promote and advertise its products 
and that mass marketing of that magnitude creates an 
environment of “friendly familiarity” in which children view 
smoking as acceptable. 61 Fed. Reg. at 44,475. FDA also 
found that the tobacco industry uses advertising techniques 
that “associate the use of tobacco products with excitement, 
glamour, and independence,” and that children are particu- 
larly “vulnerable” to those techniques. Id. at 44,398. FDA 
further found that “the pervasiveness and imagery used in 
industry advertising and promotional programs often 
obscure adolescent perceptions of the significance of the 
associated health risks and the strength of the addictive 
power of tobacco products.” Id. at 44,571. FDA therefore 

21 

concluded that advertising plays a material role in the deci- 
sion of children to smoke. Id. at 44,489. 

FDA cited abundant evidence to support its findings. For 
example, the Surgeon General and the Institute of Medicine 
both concluded that advertising affects tobacco consumption 
by altering perceptions about the pervasiveness and social 
benefits of smoking. 61 Fed. Reg. at 44,487-44,489. The 
American Psychological Association similarly determined 
that tobacco advertisers use images that appeal to children’s 
need to belong and to appear more grown up, a technique 
that effectively breaks down resistance to tobacco use. Id. at 
44,488-44,489. 

In addition, studies show that advertising plays a role in 
leading children to overestimate the prevalence of smoking 
and that those misperceptions are related to smoking 
initiation. 61 Fed. Reg. at 44,476. Studies also show that 
children who smoke are much more likely to recall tobacco 
advertising and that exposure to advertising is positively 
correlated with smoking behavior and intention to smoke. 
Id. at 44,475-44,476. Significantly, of the children who 
smoke, 86% use the three most heavily advertised brands, 
while adults more commonly use brands that are not 
advertised. Id. at 44,482. 

The industry has acknowledged in its written documents 
that young people are a crucial segment of the tobacco 
market. 61 Fed. Reg. at 44,489. The reason is apparent. As 
explained by the Surgeon General, “[s]ince most smokers try 
their first cigarette before age 18, young people are the chief 
source of new consumers for the tobacco industry, which 
each year must replace the many consumers who quit smok- 
ing and the many who die from smoking-related diseases.” 
J.A. 192. Internal RJR documents establish that there was a 
company policy to develop brands that would appeal to pre- 
smokers and learners aged 14-18. 61 Fed. Reg. at 44,480. 
RJR subsequently developed the Joe Camel cartoon cam- 
paign, and that campaign significantly affected youth smok- 

22 

ing rates. Id. at 44,476. Similarly, a marketing campaign 
directed to women resulted in a significant increase in 
smoking by young girls. Ibid. 

It is also a matter of common sense that the expenditure 
of $6.1 billion on advertising and promotion would increase 
consumption of tobacco. The FDA quoted one “well-known 
advertising executive,” who commented: “‘I am always 
amused by the suggestion that advertising, a function that 
has been shown to increase consumption of virtually every 
other product, somehow miraculously fails to work for 
tobacco products.’ ” 61 Fed. Reg. at 44,494. Not surpris- 
ingly, studies show that when advertising restrictions have 
been enforced in other countries, tobacco use has declined. 
Id. at 44,490. 

FDA found that advertising near schools and playgrounds 
poses special dangers because children are repeatedly and 
unavoidably exposed to advertising in those locations. 61 
Fed. Reg. at 44,467. FDA identified areas within 1000 feet of 
a school or playground as places that should be free of 
advertising because those are the areas that children most 
often pass by on their way to schools and playgrounds and on 
their way home from those locations. Id. at 44,503. FDA 
also found that adolescents are likely to congregate around 
stores near schools and playgrounds and that the tobacco 
industry has attempted to exploit that fact. Stores within 
1000 feet of a school had a significantly greater percentage of 
windows covered with tobacco signs than stores further 
away, and two RJR memos mention the importance of sup- 
plying stores near high schools with young adult materials. 
Id. at 44,504.8 

8 Petitioners themselves have recognized the special impact of outdoor 
advertising because, as they acknowledge (Br. 46-47), petitioners have 
since 1990 refrained from placing advertising on billboards within 500 feet 
of schools. See Pet. App. 31a. 

23 

The cumulative force of that evidence overwhelmingly 
supports the State’s judgment that tobacco advertising plays 
a significant role in the decision of children to smoke. See 
Florida Bar v. Went For It, Inc., 515 U.S. 618, 626-629 (1995) 
(surveys and anecdotal evidence sufficient to support no- 
solicitation rule); cf. Turner Broad. Sys., Inc. v. FCC, 520 
U.S. 180, 195 (1997) (court in First Amendment case is 
limited to examining whether government drew reasonable 
inferences based on substantial evidence). Moreover, as this 
Court has repeatedly recognized, it is simply a matter of 
common sense that advertising increases demand for a 
product. Rubin v. Coors Brewing Co., 514 U.S. 476, 487 
(1995); United States v. Edge Broad. Co., 509 U.S. 418, 434 
(1993); Central Hudson, 447 U.S. at 569. 

Petitioners argue (Br. 43-44) that the restrictions at issue 
here will not materially advance the State’s interests 
because the Master Settlement Agreement (MSA) between 
the States and a number of cigarette manufacturers already 
restricts outdoor advertising to some extent by barring 
petitioners from displaying advertising outdoors or on the 
inside surface of a window facing outward unless it occupies 
an area of 14 square feet or less. The MSA, however, applies 
only to the manufacturers who have signed it. It does not 
restrict advertising by other manufacturers or by any 
retailer. Moreover, the MSA does not apply to outdoor 
advertising at retail stores that falls within the 14-square- 
feet exemption. As discussed above, adolescents are re- 
peatedly and unavoidably exposed to outside advertising at 
retail locations that are near schools and playgrounds. The 
recent practices of the tobacco industry illustrate the magni- 
tude of that problem. Between 1998 and 1999 the tobacco 
industry increased spending on point-of-sale advertising by 

13.3%, from $290.7 million to $329.4 million. FTC, Cigarette 
Report for 1999, at 4 (2001) (FTC Report). The State there- 
fore had ample reason to conclude that the MSA is not 

24 

sufficient to serve its compelling interest in preventing 
underage tobacco use. 

D. The State’s advertising restrictions are also not “more 
extensive than is necessary to serve” its compelling inter- 
ests. Central Hudson, 447 U.S. at 566. To satisfy that prong 
of the inquiry, the State need not show that it has chosen the 
“least restrictive means.” Instead, it need only show that 
there is a “ ‘fit’ between the [government’s] ends and the 
means chosen to accomplish those ends—a fit that is not 
necessarily perfect, but reasonable.” Board of Trustees of 
the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989) (int- 
ernal quotation marks and citation omitted). That standard 
is readily satisfied here. By placing restrictions on advertis- 
ing within 1000 feet of schools and playgrounds, the State 
has carefully tailored its restrictions to the areas where 
children are most likely to be repeatedly and unavoidably 
exposed to tobacco advertising. See 21 U.S.C. 860 (mandat- 
ing a 1000-foot drug-free zone around schools and play- 
grounds). 

Petitioners argue (Br. 45) that the restrictions are not 
narrowly drawn because they prohibit outdoor advertising in 
90% of the areas in the three largest cities in Massachusetts. 
That argument is unpersuasive.9 In Went For It, the Court 
upheld a regulation that prohibits personal injury lawyers 
from sending targeted direct-mail solicitations to victims and 
their relatives for 30 days following an accident or disaster. 
The Court rejected the contention that the regulation re- 
stricted communication too extensively, reasoning that law- 
yers could use television, radio, newspapers, billboards, 
untargeted letters, and the yellow pages to advertise their 
services. 515 U.S. at 634. The regulation therefore left 

9 In Metromedia, Inc. v. San Diego, 453 U.S. 490 (1981), seven Justices 
apparently were of the view that a city could entirely eliminate billboard 
advertising within its borders. See id. at 508-512 (plurality opinion); id. at 
552-553 (Stevens, J., dissenting in part); id. at 559-561 (Burger, C.J., dis- 
senting); id. at 570 (Rehnquist, J., dissenting). 

25 

“ample alternative channels for receipt of information about 
the availability of legal representation.” Ibid. In City of 
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53-54 (1986), 
the Court upheld the constitutionality of a zoning ordinance 
that limited adult book stores to five per cent of the land 
area in the city. The Court explained that “the First 
Amendment requires only that Renton refrain from effec- 
tively denying respondents a reasonable opportunity to open 
and operate an adult theater within the city, and the ordi- 
nance before us easily meets this requirement.” Id. at 54. 

Similarly here, even limiting the inquiry to the three 
largest cities, rather than to the State as a whole, petitioners 
have a variety of means to promote their products to adults. 
They can locate outdoor advertising in 10% of the areas in 
those cities, double the area available in Renton. Even more 
important, they can distribute information about their pro- 
ducts through newspapers, magazines, direct mail, personal 
solicitation, promotions, and other means. Petitioners have 
not had difficulty exercising those options. Between 1998 
and 1999, the cigarette industry’s expenditures on advertis- 
ing and promotion rose from $6.7 billion to $8.2 billion. FTC 
Report 16. The regulations therefore leave tobacco manu- 
facturers with adequate opportunities to convey “informa- 
tion as to who is producing and selling what product, for 
what reason, and at what price” to adults who are interested 
in obtaining such information. Virginia State Bd. of Phar- 
macy v. Virginia Citizens Consumer Council, 425 U.S. 748, 
765 (1976). 

There also are not any “obvious less-burdensome alter- 
natives to the restriction on commercial speech.” Went For 
It, 515 U.S. at 632 (citation omitted). Petitioners argue (Br. 

45) that the State should pursue its interests through more 
rigorous enforcement of its laws that prohibit retailers from 
selling tobacco products to children. The State submitted 
evidence, however, that it already has one of the most 
rigorous enforcement programs in the United States and 

26 

that too many children are still able to obtain access to 
tobacco products. J.A. 90-96. 

The State’s experience is not surprising. HHS has estab- 
lished 80% compliance with the prohibitions on sale of 
tobacco products to children as a realistic goal for States to 
strive to achieve. 61 Fed. Reg. 1499 (1996). Moreover, be- 
cause many children obtain cigarettes from friends and 
relatives, J.A. 290, even perfect compliance with the prohibi- 
tion on sales would not fully achieve the State’s purposes. 
For those reasons, efforts to reduce the supply of tobacco 
products to children represent only a partial solution to the 
problem of underage tobacco use. Advertising restrictions 
complement efforts to reduce supply because they attack a 
problem that such enforcement efforts do not address—the 
demand for tobacco that advertising creates and nourishes in 
minors. 

Petitioners also argue (Br. 45) that the State should make 
it unlawful for minors to purchase tobacco products. That 
alternative is not an “obvious less-burdensome alterna- 
tiv[e].” Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 
417 n.13 (1993). Turning children who purchase or obtain 
tobacco products into criminals raises sensitive policy issues, 
and States can reasonably view such an alternative as an 
unacceptable option. Moreover, like a prohibition on sale, a 
prohibition on the purchase of tobacco simply does not 
address the distinct problem posed by cigarette advertising 
—that it stimulates demand for the product. 

Finally, in balancing the relevant considerations to assess 
whether the restrictions imposed by the Massachusetts 
regulations are more extensive than is called for to serve the 
State’s compelling interests, it is surely relevant that (1) the 
sale of cigarettes to minors is unlawful and the commercial 
transactions proposed or promoted by cigarette advertising 
therefore are unlawful to that extent; (2) the effects of 
tobacco use on impressionable minors who may be induced to 
begin or continue smoking are profound and longlasting, 

27 

while the asserted benefits of outdoor advertising of ciga- 
rettes for petitioners and adult consumers are more fleeting 
and capable of being realized in other ways; (3) the great 
majority of adult tobacco users to whom the advertising may 
lawfully be directed are addicted to the product; and (4) the 
tobacco use promoted by petitioners’ advertising is—par- 
ticularly among children and adolescents but among adults 
as well—“perhaps the single most significant threat to public 
health in the United States.” Brown & Williamson, 529 U.S. 
at 161. It therefore is especially appropriate to give the 
State full berth for the effectuation of its compelling inter- 
ests served by the prohibition against cigarette advertising 
within 1000 feet of schools and playgrounds. 

10 

E. Petitioners argue (Br. 26-41) that the Court should 
subject the State’s restrictions to the same strict scrutiny 
standard that it applies to non-commercial speech that is 
“content” or “viewpoint” based. Petitioners’ suggestion that 
the Court abandon the Central Hudson framework for 
evaluating restrictions on commercial speech should be 
rejected. Central Hudson’s middle-tier scrutiny strikes the 

10 Petitioners’ reliance (Br. 47-49) on Bolger v. Youngs Drug Products 
Corp., 463 U.S. 60 (1983), and Carey v. Population Services International, 
431 U.S. 678 (1977), is misplaced. In Bolger, the Court invalidated a stat- 
ute prohibiting unsolicited mailed advertisements for contraceptives. The 
Court reasoned that parents exercise substantial control over their mail- 
boxes and can prevent mailings from reaching their children through the 
“short, though regular, journey from mail box to trash can.” 463 U.S. at 
72-74 (citation omitted). In contrast, parents have no effective means to 
protect children on their way to schools and playgrounds from having out- 
door advertising “thrust upon them by all the arts and devices that skill 
can produce.” Packer Corp., 285 U.S. at 110. In Carey, the Court invali- 
dated a law that prohibited advertising concerning contraceptives. The 
Court explained that the law sought “to suppress completely” any infor- 
mation about the availability and price of “products and services that are 
not only entirely legal, but constitutionally protected.” 431 U.S. at 700-701 
(citation omitted). The State in this case does not seek to suppress 
completely any information about the availability and price of tobacco 
products, and there is no constitutional right to use tobacco products. 

28 

appropriate balance between a seller’s interest in proposing 
a commercial transaction and the State’s right to regulate 
speech that is intimately bound up with regulable economic 
activity. The application of Central Hudson has resulted in 
the invalidation of unnecessary restraints, while still giving 
government flexibility to protect consumers from economic 
activity that poses risks to public safety and health. Peti- 
tioners offer no persuasive reason for the Court to invalidate 
restrictions on commercial speech where the government 
can demonstrate that they directly and materially further 
substantial interests and are no more extensive than neces- 
sary to serve those interests. 

Petitioners’ proposal could also have far-reaching 
consequences. For example, if the state regulation at issue 
here must be subjected to strict scrutiny because it is 
“content based” and “viewpoint based,” it is difficult to see 
why Congress’s prohibition on cigarette advertising on 
television and radio should not be subjected to strict 
scrutiny. 15 U.S.C. 1335. Other federal statutory 
restrictions on commercial speech are also capable of being 
characterized as “content based” or “viewpoint based.” See 
15 U.S.C. 1336 (recognizing and preserving FTC authority 
with respect to unfair or deceptive acts or practices in ciga- 
rette advertising); 15 U.S.C. 1681 (limiting dissemination of 
credit reports); 15 U.S.C. 6501 (Supp. IV 1998) (implement- 
ing privacy protection provisions); 21 U.S.C. 343(r) (1994 & 
Supp. IV 1998) (authorizing FDA to place restrictions on 
labeling claims about nutrients). Petitioners’ rule would also 
seemingly call for strict scrutiny of any restriction on the 
outdoor advertising of firearms within 1000 feet of a school 
or playground. This Court should reject a proposal that 
would so destabilize the law. 

Some Members of this Court have suggested that a more 
searching scrutiny might be appropriate “when a State en- 
tirely prohibits the dissemination of truthful, nonmisleading 
commercial messages for reasons unrelated to the preserva- 

29 

tion of a fair bargaining process.” 44 Liquormart, Inc. v. 
Rhode Island, 517 U.S. 484, 501 (1996) (Stevens, J., joined by 
Kennedy and Ginsburg, J.J.). Laws meeting that descrip- 
tion, however, can be fairly analyzed under the Central 
Hudson inquiry. There is no reason to add a new standard of 
review to judge such restraints. Id. at 532 (O’Connor, J., 
joined by Rehnquist, C.J. and Souter and Breyer, J.J., con- 
curring in the judgment). 

Even if such a rule were adopted, however, it would have 
no application in this case. The restrictions at issue here do 
not “entirely prohibit” the dissemination of information 
about tobacco. They apply only near schools and play- 
grounds, and petitioners have numerous alternative means 
to disseminate information about tobacco to adults. Nor are 
the State’s reasons for imposing its restrictions unrelated to 
the preservation of a fair bargaining process. The State 
justifiably views any bargain between tobacco manufactur- 
ers and children as inherently unfair, both because the State 
has made the sale of tobacco products to children unlawful, 
cf. Edge Broad. Co., 509 U.S. at 428, and because so many 
children lack the maturity in judgment to resist the tobacco 
industry’s appeals to excitement, glamour, and independ- 
ence, and to appreciate the addictive power and health risks 
of tobacco products, cf. FTC v. Keppel & Bro., 291 U.S. 304, 
309 (1934). The State’s interest in preventing such unfair- 
ness is at its apex when the State seeks to limit tobacco 
advertising near schools and playgrounds, where children 
are repeatedly and unavoidably exposed to the advertising. 

This is also not a case in which the government’s asserted 
interest is to keep adults who may lawfully consume a 
product ignorant based on a paternalistic view that they will 
otherwise make irresponsible choices. See 44 Liquormart, 
517 U.S. at 518 (Thomas, J., concurring in part and con- 
curring in the judgment). Children are not lawful consumers 
of tobacco, and the government has significant leeway to act 

30 

paternalistically when its goal is to protect children from 
making irresponsibly dangerous choices. 

This case also does not remotely resemble the hypotheti- 
cal prohibition on advertising that is demeaning to men dis- 
cussed in R.A.V. v. City of St. Paul, 505 U.S. 377, 389 (1992). 
Such a statute would ordinarily have no plausible relation- 
ship to a State’s interest in any underlying commercial 
transaction. Here, by contrast, the State’s restrictions on 
tobacco advertising near schools and playgrounds is directly 
related to the State’s interest in preventing the unlawful 
sale of tobacco products to children. 

Finally, the application of strict scrutiny is particularly 
unwarranted here. Petitioners disclaim any First Amend- 
ment interest in persuading children to smoke or, for that 
matter, in persuading anyone who is not already smoking to 
smoke. Their sole professed interest is in persuading per- 
sons who already smoke to choose their brand rather than 
their competitor’s. 61 Fed. Reg. at 44,494. There is no 
evidence, however, that the State is taking sides in that 
“debate” among competitors. Instead, the State’s sole as- 
serted interest is in preventing petitioners from (inten- 
tionally or unintentionally) persuading children to smoke a 
product that cannot lawfully be sold to them and that is 
likely to cause one out of every three who become addicted 
to it to die a premature death. The First Amendment does 
not prevent a State from sensibly pursuing that interest. 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

31 

BARBARA D. UNDERWOOD 

Acting Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

IRVING L. GORNSTEIN 

Assistant to the Solicitor 

General 

DOUGLAS N. LETTER 

Attorney 

MARCH 2001