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*

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 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

Full Text of Opinion

Primary Holding

Pre-emption applies when a federal law expressly prohibits states from regulating a certain area. Also, companies have commercial speech rights under the First Amendment that the state may not regulate too tightly.


In an extension to the express preemption provision in the Federal Cigarette Labeling and Advertising Act, Congress withheld the rights of states to place additional burdens on the advertising or promotion of cigarettes beyond the requirements imposed by the FCLAA. Reilly, the Massachusetts state attorney general, later created regulations that restricted the outdoor and point-of-sale advertising of cigarettes.

Some of these specific restrictions included bans on any outdoor advertising within 1,000 feet of playgrounds or schools. Since playgrounds and schools were widespread in most urban areas, very little space was left for outdoor advertising. Lorillard Tobacco Co., a manufacturer of smokeless tobacco, challenged the constitutionality of the state advertising restrictions in conjunction with cigar manufacturers. They acknowledged that there was a correlation between cigarette advertising and smoking by minors, but they argued that the correlation did not apply to smokeless tobacco advertising and that the regulations were overly broad.



  • Sandra Day O'Connor (Author)
  • William Hubbs Rehnquist
  • Antonin Scalia
  • Anthony M. Kennedy
  • Clarence Thomas

Even though a state may be concerned about protecting the health and safety of its residents, the federal government has preempted any state regulation in this area. The regulations are also based on the location rather than the content of the advertising, so they are not rooted in the federal law, and states may not impose additional burdens on cigarette advertising.

Under the four-step framework for evaluating regulations on commercial speech under the First Amendment, which was introduced in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980), these regulations pass the first three steps but not the fourth. Companies essentially are prohibited from any outdoor advertising in major metropolitan areas. The regulations also cover indoor advertising that is visible from outside the store, so on-site advertisements also are severely restricted.

Concurrence/Dissent In Part

  • John Paul Stevens (Author)
  • Ruth Bader Ginsburg
  • Stephen G. Breyer

Preemption should be cautiously applied if ambiguities surround an apparent attempt by Congress to restrict the traditional police powers of the states. The federal law is limited to the content of the advertising, so states may add restrictions on its location. In any event, an ambiguity should be interpreted in favor of the states, who historically have controlled this area. However, the majority correctly ruled that the regulation on location is not sufficiently narrowly tailored to pass constitutional scrutiny, even though it is directed to achieving the state interest.


  • Clarence Thomas (Author)

Since the regulations are based on content, they should be analyzed under a strict scrutiny standard of review. They are not categorically exempt from First Amendment protections because of the health risks created by smoking. Sellers of alcohol or fatty foods are not placed under such sweeping restrictions, and their products are no less harmful.


  • Anthony M. Kennedy (Author)
  • Antonin Scalia

Concurrence/Dissent In Part

  • David H. Souter (Author)

Case Commentary

Commercial speech can be restricted under the First Amendment, but only to a degree that is needed to protect the state's interests. The speaker still must have the opportunity to communicate the information, and adult listeners should have reasonable access to information on adult products.

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