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

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No. 00-596. Argued April 25, 200l-Decided June 28, 2001*

Mter 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 pre-empts 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 Court's 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 Servo Comm'n of N. Y., 447 U. S. 557, but reversed the lower court's invalidation of the point-of-sale advertising regulations, concluding that the Attorney General is better suited than courts to determine what restrictions are necessary.


1. The FCLAA pre-empts Massachusetts' regulations governing outdoor and point-of-sale cigarette advertising. Pp. 540-553.

*Together with No. 00-597, Altadis U. S. A. Inc., as Successor to Consolidated Cigar Corp. and Havatampa, Inc., et al. v. Reilly, Attorney General of Massachusetts, et al., also on certiorari to the same court.



(a) The FCLAA's 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 Court's analysis begins with the statute's language. Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438. The statute's 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 [Act's] provisions." Without question, the current pre-emption provision's 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. 540-546.

(b) Congress pre-empted state cigarette advertising regulations like the Attorney General's 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 324-325. The Attorney General's argument that the regulations are not "based on smoking and health" since they do not involve healthrelated content, but instead target youth exposure to cigarette advertising, is unpersuasive because, at bottom, the youth exposure concern is

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