holding that the Labeling Act preempts state regulations specifically targeting cigarette advertising, but does not preempt state regulation of cigarette use or sales, or imposition of regulations of general applicability, such as zoning, which may have an effect on cigarette advertising
How later courts described this case
- holding that the Labeling Act preempts state regulations specifically targeting cigarette advertising, but does not preempt state regulation of cigarette use or sales, or imposition of regulations of general applicability, such as zoning, which may have an effect on cigarette advertising
- holding that advertising restriction on tobacco products advances government interest and collecting cases “acknowledg[ing] the theory that product advertising stimulates demand for products, while suppressed advertising may have the opposite effect”
- holding that requirement that certain advertising be placed more than five feet off the ground should not be analyzed under O’Brien because the “height restriction is an attempt to regulate directly the communicative impact of indoor advertising.”
- finding that a ban on advertising for certain tobacco products within 1,000 feet of a school or playground would effectively “constitute nearly a complete ban on the communication of truthful information” about the products
Written by the judges who cited it.
The opinion
Justice Kennedy,
with whom Justice Scalia joins, concurring in part and concurring in the judgment.
The obvious overbreadth of the outdoor advertising restrictions suffices to invalidate them under the fourth part of the test in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y, 447 U. S. 557 (1980). As a result, in my view, there is no need to consider whether the restrictions satisfy the third part of the test, a proposition about which there is considerable doubt. Cf. post, at 583-584 (Thomas, J., concurring in part and concurring in judgment). Neither are we required to consider whether Central Hudson should be retained in the face of the substantial objections that can be made to it. See post, at 574-582 (opinion of Thomas, J.). My continuing concerns that the test gives *572 insufficient protection to truthful, nonmisleading commercial speech require me to refrain from expressing agreement with the Court’s application of the third part of Central Hudson. See, e.g., kh Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 501-504 (1996) (opinion of Stevens, J., joined by Kennedy and Ginsburg, JJ.). With the exception of Part III — B—1, then, I join the opinion of the Court.