Amicus Curiae Brief — Lorillard Tobacco Co. v. Reilly

Supreme Coun, U.S.

FILED

[MAP =4 ‘ a» MAR 2G 2001

No. 00-596 :

CLERK

In the

Supreme Court of the Anited States

LORILLARD TOBACCO CO., et al.,

Petitioners,

¥.

THOMAS F. REILLY, ATTORNEY GENERAL OF

MASSACHUSETTS,

Respondent.

On Writ OF CERTIORARI To THE UNITED STATES

Court oF APPEALS For THE First Circuit

BRIEF OF AMICI CURIAE AMERICAN

MEDICAL ASSOCIATION, AMERICAN

HEART ASSOCIATION, AMERICAN LUNG

ASSOCIATION, AMERICAN CANCER SOCIETY,

CENTER FOR SCIENCE IN THE PUBLIC

INTEREST, AND MASSACHUSETTS MEDICAL

SOCIETY, IN SUPPORT OF RESPONDENT

DONALD W. GARNER * RICHARD J. WHITNEY

PROFESSOR OF LAW SpPEIR & WHITNEY

LESAR LAW BUILDING 3200 FisHBACK Rp.

SOUTHERN ILLINOIS BLDG. CARBONDALE, IL 62901

CARBONDALE, IL 62901 (618) 549-5159

(618) 453-8718

Counsel for Amici Curiae

* Counsel of Record (Additional counsel on inside front cover)

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

GEORGE A. HACKER

DIRECTOR, ALCOHOL POLICIES PROJECT

CENTER FOR SCIENCE IN THE PUBLIC INTEREST

1875 Connecticut Ave., N.W., Ste. 300

WASHINGTON, D.C. 20009

(202) 332-9110, ExT. 343

‘TABLE OF CONTENTS

RE Oe I 65 hr ceed edaradees eeaeees IV

Statement of Interest of Amici Curiae ................. l

og eer errr errr Tero cr er ese 1

eee Vee ee eer iy hase ee 2

I. THE MASSACHUSETTS REGULATIONS

CONTROL ONLY THE LOCATION OF

TOBACCO ADVERTISING, NOT THE

ADVERTISING CONTENT, AND ARE

THEREFORE NOT PREEMPTED BY

A, Serer ae aera 2 eee a 2

A. Federalist principles demand

an inquiry into Tegislative

history and the use of other

aids to construction in order

to understand and limit the

scope of an express

preemption provision. ..:............. 5

B. The legislative history of the

1965 and 1969 Acts, and a fair

reading of the statute as a

whole, support the conclusion

that § 5(b)’s purpose was to

protect the tobacco industry

from having to alter the

content of its brand

ES rere ree Sarr earn ee 7

Il.

tel The case law on § 5(b)

strongly supports. the

conclusion that Congress

intended to preempt only

those requirements or

prohibitions that affect the

content of tobacco brand

SIN 00 ky te ese 60s ASA a a es 13

THE REGULATIONS DO NOT VIOLATE

THE FIRST AMENDMENT, SINCE THEY

ARE CAREFULLY DRAWN TO

PROTECT CHILDREN FROM

EXTRAORDINARILY HARMFUL

MESSAGES IMPOSED ON THEM BY

INTRUSIVE AND UNAVOIDABLE

MEANS OF ADVERTISING. .............. 18

A. — This Court's well-settled rule

giving government

considerable latitude to

protect children from indecent

speech should be extended to

government measures aimed

at protecting children from

speech that can lead to their

EN Siw whee eee eee eras th We 19

B. The Regulations pass First

Amendment scrutiny for the

additional reason that they

target speech disseminated by

intrusive media, which impose

harmful messages on children

il

in a manner that cannot be

OVGEINI SS. 5s vnc onsads sc aeca eae ies 28

CCOMCRRIIORR 0. di Sic nds WR eae ee see ee 30

Appendix /

Appendix A

Description of Individual Amici Curiae ........ la

ill

TABLE OF AUTHORITIES

Cases Page(s)

Anheuser-Busch, Inc. v. Schmoke,

See ee oe Ce GE, PPO) avs cece ewes 23-25

Austin v. Tennessee,

iy BOP BA 8: Re ari ae nae 27

Bethel Sch. Dist. v. Fraser,

i, DR Eo Do) | SE a meen es 20

Breard yv. Alexandria,

PEE Aa ER TOED ib cde centdaaddueewaenans 29

California Division of Labor Standards Enforcement yv.

Dillingham Construction, Inc.,

a hi: PODCLGETE «ks bce penn eae be benkes 6, 11

Capital Broadcasting Co. v. Acting Attorney Gen.,

ee ee | eer re ee 17, 20

Capital Broacasting. Co. v. Mitchell,

320 b. SURO, See Ga. UIT). 6. cen cwess 17, 20

Carey v. Population Services International,

mth SE) Py gs Pee Pern eee STC er 26, 27

Cipollone v. Liggett Group, :

ee Abs CIPD. Ab apo cea ee ee 5, passim

Consolidated Cigar Corp. v. Reilly,

reo gw FOR SEE Gk a rr ear 13

iV

Denver Area Educ. Telecommunications Consortium, Inc. v.

FCC,

BIG S. G2. ZIPRLIGOOD «Face ccddaweki 20, 29, 30

FCC v. Pacifica Found.,

gt ee Peer ere ry er ee oe 20, 29

Fed'n of Adver. Indust. Representatives v. Chicago,

189 F.3d 633 (7th Cir. 1999)("FAIR") .......... 13

44 Liquormart, Inc. v. Rhode Island,

PAT Cid MEARS 9.868 5 8045s eek eee ke enoes 26

- Ginsberg v. State of New York,

IPE dey GOP CEPOEE « ck ces sckecenexer 19, 20, 24

Greater New York Metropolitan Food Council, Inc. v.

Giuliani,

193 F. 36 100-(26 Cir. 1999) .... <0 ce 4,12, 13

Kovacs v. Cooper,

PEN a CRE Ss be oe PL es 28

Lehman v. City of Shaker Heights,

Re a EEE oc sa hie eka bbe ks es keep 29

Lindsey v. Tacoma-Pierce County Health Dept.,

SPs F. aee Ce CU Gs BORD vin vedss veces. 13

Lorillard Tobacco Co. v. Reilly,

76 F. Supp. 2d 124 (D. Mass. 1999) ............ 4

Medtronic v. Lohr,

FEO Sis SOE ib caer ees ees ce ewes 5, 6, 11

Midwest Booksellers Ass'n v. City of Minneapolis,

780 F.2d 1389 (8th Cir. 1985) ..............-. 24

New York State Conf. of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co.,

ae Se ES o's fb chs wee oes 0 bees ee 6

Packer Corp. v. Utah,

ee Oy We OD 6s ok wc bv ote ds ews 3, passim

Penn Advertising of Baltimore, Inc. v. Mayor of Baltimore,

63 F. 3d 1318 (4th Cir. 1995)

(Penn Advertising Il) ............4. ih Ae BER at 13

Penn Advertising of Baltimore, Inc. v. Mayor of Baltimore,

101 F.3d 332 (4th Cir. 1996)

I oa a orc kas nace 23

Prince v. Massachusetts, ‘

Pn Wh BOING had K aA SA Keen ces See

R.A.V. v. City of St. Paul,

NORE a 65 6 0ane dae a saa tay eos 18

Reno v. American Civil Liberties Union,

<i BR OMS | 1). f) Erne eee 20, 23

Rice v. Santa Fe Elevator Corp.,

Pre RP OENNTE bine ek cee tanscecs besace 7

Rockwood v. City of Burlington,

21 F. Supp. 2d 411 (D. Vt. 1998)........... 13-15

Rowan y. United States Post Office Dept.,

Fe Aa PE 6 48 8 6 Ev 0S 54S 4 ORE 29

vi

United States v. Playboy Entertainment Group, Inc.,

529 U.S. 803, 120 S. Ct. 1878 (2000) ....... 21-23

Virginia State Bd. of Pharm. v.

Virginia Citizens Consumer Council, Inc.,

ge ee 18, 23

Statutes and Regulations

Page(s)

so On 8 SE | 3, passim

Public Health Cigarette Smoking Act of 1969 § 5(b),

- Pub. L. No. 91-222, 84 Stat. 87 (1970),

LF MR. SR hh ak noice vices 3, passim

Federal Cigarette Labeling and Advertising Act,

Pub. L. No. 89-92, 79 Stat. 282 (1965)

(codified as amended at 15 U.S.C.

ee RE 5 ie des oo eR SL os EDs 3, passim

Laws Utah 1929 ch. 92 (codified at Utah Code Ann.

D PUNN I ROUR ADC IPPONE von bcudccevesaneenns 10

Regulations Restricting the Sale and Distribution

of Cigarettes and Smokeless Tobacco

to Protect Children and Adolescents,

ei et) 24

Vil

Secondary Authorities

Donald W. Garner & Richard J. Whitney,

Protecting Children from Joe Camel and

his Friends: A New First Amendment and

Federal Preemption Analysis of Tobacco

Billboard Regulation,

G6 TROT £5. GTO CIGEE) na sc innecsvaseass 2,15

CA Judge Refuses to Enjoin Implementation of MSA,

Andrews' Tobacco Industry Litig. _ is

Se, Ws WU CA Kea e ned euKbancetes sea ceaabes 4

Gordon Fairclough, California Sues Reynolds Over

Magazine Ads, Wall St. J. March 20, 2001 ....... 4

Committee on Preventing Nicotine Addiction in

Children and Youths, Institute of Medicine,

Growing Up Tobacco Free: Preventing

Nicotine Addiction in Children and Youths 3

(Barbara S. Lynch & Richard J. Bonnie eds.,

2 RNIR PRES Perey geararaa Were are ere ee 5

U.S. Dep’t of Health, Educ. & Welfare, U.S.

Surgeon Gen.’s Advisory Comm.,

Smoking and Health (1964) ..............0005. 7

feat & Ge UL. eer epee ewes 10

EDR. BOM. FER. DEAR CUED 0 5 Sac cbt awcntsiatascenss 10

Se TN, TOR, DENG REPO 6 6 sc cae ewk eee dia dees 10

Vill

a

S. Rep. No. 91-566, (1969), reprinted in 1970

fb ek ot oa en er a 11,14

The Tobacco Institute, Code of Cigarette

Sampling Practices (1983) ............0000085 14

Federal Trade Commission, Federal Trade

Commission Cigarette Report for

eg eee er re rer rere 14, 26

Donald W. Garner, Tobacco Sampling, Public

Policy and the Law, 11 J. Health Politics,

ag GF Ri | re rrrere 14-15

U.S. Dep't of Health & Human Servs., Preventing

Tobacco Use Among Young People: A

Report of the Surgeon General (1994) .......... 24

Tobacco Use Among High School Students--

United States, 1997,

Morbidity and Mortality Wkly. Rep.

(U.S. Dep’t of Health & Human Servs.),

Fe a RO ob Seok 4bn be Ros Kes ak oe eed 25

News and Views From the Franklin County

Prevention Institute,

Pe OO WED ns eo < 006s oe bean eas 25

iX

STATEMENT OF INTEREST OF AMICI CURIAE'

The organizations submitting this brief share a

commitment to promoting the health and well-being of the

people of the United States. They therefore share a common

interest in supporting the Massachusetts Attorney General's

efforts to protect the public, and especially children, from

solicitations to use tobacco products. A brief description of

each individual Amici is provided in the Appendix to this brief.

SUMMARY OF ARGUMENT

The analysis of the various issues offered in this amicus

brief rests upon a common foundation: The restriction of

intrusive forms of tobacco advertising serves values so

profoundly important that this Court should accord them great

respect when considering the reach of the First Amendment and

federal preemption. When young children are constantly and

involuntarily bombarded with seductive messages appearing on

neighborhood storefronts that promote a lifelong addiction, not

only is their health endangered, but their right to be free from

having adult choices foisted upon them is not so subtly

infringed. When parental admonitions against smoking are

- trivialized by in-store cigarette displays at eye level next to the

candy, the right of parents to guide their children toward a life

of health and vitality is undermined. And when cigarettes at

\

' Rule 37 Compliance: This brief is being filed with the Court by the

written consent of all parties, in compliance with Rule 37. No

counsel for any party authored this brief in whole or in part. A

monetary contribution to the preparation and submission of this brief

was made through a grant to Prof. Donald Garner from the Substance

Abuse Policy Research Program of the Robert Wood Johnson

Foundation, Route 1 and College Road East, P.O. Box 2316,

Princeton, N.J. 08543-2316.

local convenience stores are strategically placed within reach

of elementary school kids, state laws prohibiting tobacco

distribution to children are publicly mocked.’

. The Petitioners in this case seek to gain an absolute

_right to impose tobacco advertising upon young children by

way of large storefront billboards, ubiquitous in-store displays

and handy cigarette packages in the aisles of convenience

stores. The Attorney General of Massachusetts has determined

that these are unfair and/or deceptive methods of advertising,

in that they encourage tobacco use by children under legal age.

Petitioners claim that this determination is meaningless. This

case will finally answer whether our Constitution and federal

law strip states and local communities of all their authority to

protect their children from being lured into a lethal addiction

by unavoidable tobacco advertising.

ARGUMENT

I. THE MASSACHUSETTS REGULATIONS

CONTROL ONLY THE LOCATION OF

TOBACCO ADVERTISING, NOT THE

ADVERTISING CONTENT, AND ARE

THEREFORE NOT PREEMPTED BY FEDERAL

LAW.

The central question raised by Petitioners’ preemption

challenge is whether Congress in 1969 intended to grant the

cigarette companies the unqualified right te involuntarily

inflict their advertising upon children by all means, fair or foul.

* See generally Donald W. Garner & Richard J. Whitney, Protecting

Children from Joe Camel and his Friends: A New First Amendment

and Federal Preemption Analysis of Tobacco Billboard ee

46 Emory L.J. 479 (1997).

NE Ee

Petitioners maintain that the billboard and in-store

regulations promulgated by the Attorney General of the

Commonwealth of Massachusetts, 940 C.M.R. §§ 21.00-27.07

("Regulations") are preempted by § 5(b) of the Public Health

Cigarette Smoking Act of 1969 ("1969 Act"), Pub. L. No._91-

222, 84 Stat. 87 (1970), which provides: "No 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 provisions of this chapter." 15 U.S.C. § 1334(b)

(amending the Federal Cigarette Labeling and Advertising Act,

Pub. | No. 89-92, 79 Stat. 282 (1965) ("1965 Act")).

Petitioners contend that there is no good reason to

consider what Congress might have really wanted to

accomplish by § 5(b) because the dictionary definition of the

words used are broad enough to encompass any health-based

state or local regulation of any cigarette advertising or

promotional practice. (Pet'rs' Br. at 15-16.) If the Petitioners’

view prevails, the cigarette industry will be free — in the words

of the only Supreme Court opinion to rule on cigarette

billboards — to “thrust” their advertising message upon young

people “by all the arts and devices that skiH can produce.”

Packer Corp. v. Utah, 285 U.S. 105, 110 (1932).

While Petitioners frequently refer to their acceptance of

the advertising restraints contained in the “Master Settlement

Agreement” (MSA), (Pet'rs' Br. at 3, 9, 12-13, 43, 45-46), that

fact should be accorded no weight in this Court's analysis of

either the preemption or First Amendment questions at stake.

The states cannot rely on the MSA as a substitute for direct

regulation. The MSA neither controls all the business entities

that advertise tobacco products, nor does it sufficiently restrict

the methods of advertising that posé the greatest threat to

children.

The MSA imposes no limits at all on retailers, boutique

cigarette manufacturers, distributors who re-import cheap

domestic cigarettes, and other “gray market” tobacco

companies. See CA Judge Refuses to Enjoin Implementation of

MSA, Andrews' Tobacco Industry Litig. Rep., Nov. 12, 1999, |

at 13. If the 1969 Act preempts all health-based state and local

regulation of cigarette promotion, these companies and any

future start-up manufacturers of tobacco will be free to increase

their share of the critical juvenile market by the same means

pioneered by the Petitioners. They could, for instance, begin

openly passing out free samples of cigarettes to young

teenagers at rock concerts and handing out cigarette posters

using cool cartoon characters to first-graders. Cf Greater New

York Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d

100, 105 (2d Cir. 1999)(describing absurd results of

interpreting § 5(b) in hyper-literal fashion).

Pefitioners, meanwhile, would remain free to erect

store-front signs across from elementary schools and wallpaper

the interior of convenience stores near playgrounds with point-

of-purchase displays — while pushing the boundaries of the

MSA. In the case at bar, Petitioners initially sought to strike

down, on preemption grounds, a provision in the Regulations

that barred the free distribution of samples, except mail

sampling with age verification. (Pet. Cert. at 5 n.4); Lorillard

Tobacco Co. v. Reilly, 76 F. Supp. 2d 124, 128 (D. Mass.

1999). Equally disquieting, one of the Petitioners has been sued

by various states for allegedly targeting teenagers, in violation

of the MSA. Gordon Fairclough, California Sues Reynolds

Over Magazine Ads, Wall St. J. March 20, 2001, at A3..

Amici submit ‘that Congress never intended to

completely destroy the power of states and municipalities to

protect children from an addiction that promises to kill more of

them than cocaine, heroin, fire, suicide, homicide, AIDS and

4

auto accidents combined. See Committee on Preventing

Nicotine Addiction in Children and Youths, Institute of

Medicine, Growing Up Tobacco Free: Preventing Nicotine

Addiction in Children and Youths 3 (Barbara S. Lynch &

Richard J. Bonnie eds., 1994). On the contrary, when Congress

passed the 1969 Act, it intended to preempt only those health-

based state or municipal "requirement[s] or prohibition[s]" that

affect the content of tobacco advertising. It never intended to

preempt zoning or zoning-like laws that merely restrict the

locations in which tobacco advertising is permitted to appear.

The text of the statute as a whole, its legislative history, case

law and common sense strongly point to that conclusion.

A. Federalist principles demand an inquiry into

legislative history and the use of other aids to

construction in order to understand and

limit the scope of an express preemption

provision.

When the exercise of historic state police powers is

challenged on preemption grounds, a reviewing court must

look, "not only in the text," but must form a "reasoned

understanding of the way in which Congress intended the

Statute and its surrounding regulatory scheme to affect

business, consumers, and the law." Medtronic, Inc. v. Lohr, 518

U.S. 470, 486 (1996). Thus, this Court is duty-bound to

scrutinize the legislative history and use other extrinsic aids to

avoid suppressing local self-rule beyond what Congress

intended. This principle is embedded in the approach taken in

Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992) — the

only Supreme Court decision that has yet interpreted § 5(b).

Though the Court was divided on the ultimate question

in Cipollone, every opinion in the case ventured beyond the

literal text of § 5(b) in interpreting that section and used

5

extrinsic aids, including legislative history, to attempt to

ascertain Congress's true intentions. Cipollone, 505 U.S. at

513-515, 519-521, 529-30 (plurality opinion); id. at 534-35,

539-542 (Blackmun, J., concurring in part and dissenting in

part); id. at 553 (Scalia, J., concurring in part and dissenting in

part).

The Court's intensive inquiry into Congressional intent

was prompted by its guardianship of our federalism — in

particular, the fundamental principle that the states’ traditional

police powers are not to be superseded unless Congress has

clearly manifested its intention to do so. Jd. at 516, 523

(plurality opinion); id. at 533 (Blackmun, J., concurring in part

and dissenting in part). Accordingly, a majority of the Court

agreed that § 5(b) must be given a narrow construction. Jd. at

523 (plurality opinion); id. at 533-34 (Blackmun, J., concurring

in part and dissenting in part).

This Court’s post-Cipollone decisions have erased any

lingering doubts that it is obligated to consider legislative

history and other indicia of Congressional intent when a

broadly worded express preemption provision is at issue. See,

e.g., Medtronic, 518 U.S. at 484-86; California Division of

Labor Standards Enforcement v. Dillingham Construction,

Inc., 519 U.S. 316, 331-32 (1997); New York State Conf. of

Blue Cross & Blue Shield Plans v. Travelers Ins. Co.,514 U.S.

645, 655 (1995).

The disputed and ambiguous phrases in § 5(b) —

"requirement or prohibition," "based on smoking and health"

and "with respect to the advertising or promotion of any

cigarettes" — are potentially sweeping. Cf Blue Cross, 541

U.S. at 655 (noting that, taken literally, the term "relate to" in

ERISA’s preemption provision could broadly preempt state

laws). The dictionary-driven “plain meaning" approach that

6

Petitioners urge this Court to adopt creates an unacceptable risk

that more state and local sovereignty will be destroyed than

Congress intended. This Court should be guided instead by its

well-settled rule that "[t]he purpose of Congress "must be 'the

ultimate touchstone’ of pre-emption analysis.” Cipollone, 505

U.S. at 516.

Most importantly, Congress is presumed not to have

intended to destroy the right of state and local governments to

regulate in areas the "states have traditionally occupied." Rice

v. Santa Fe Elevator Corp. 331 U.S. 218, 330 (1947). State

exercises of their historic powers "are not to be superseded

unless that is the clear and manifest purpose of Congress." Jd.

In applying that rule, the Cipollone Court found that, "in the

1969 Act, Congress offered no sign that it wished to insulate

cigarette manufacturers from longstanding rules governing

fraud." Cipollone, 505 U.S. at 516. So too, in this case, the

legislative history offers no sign that Congress wished to

insulate cigarette manufacturers from longstanding state or

local zoning laws.

B. The legislative history of the 1965 and 1969

Acts, and a fair reading of the statute as a

whole, support the conclusion that § 5(b)’s

purpose was to protect the tobacco industry

from having to alter the content of its brand

advertising.

In 1964, Surgeon General Luther Terry issued his

landmark Report tying cigarette smoking to lung cancer. U.S.

Dep’t of Health, Educ. & Welfare, U.S. Surgeon Gen.’s

Advisory Comm., Smoking and Health (1964). Strong public

reaction prompted the Federal Trade Commission and several

States to consider requiring warnings on cigarette packages and

in advertising. Cipollone, 505 U.S. at 513.

7

Congress stepped into this public health maelstrom by

adopting the 1965 Act, which required cigarette packages to

carry a warning that cigarette smoking was hazardous to health.

In § 5(a) of the 1965 Act, Congress prohibited other

government bodies from requiring the placement of any other

statement on cigarette packs. Similarly, in § 5(b), Congress

provided that: "No statement relating to smoking and health

shall be required in the advertising of any cigarettes the

packages of which are labeled in conformity with the

provisions of this act."

These preemption provisions were set to expire on July

1, 1969. 1965 Act, § 10. As that date approached, the states

again began entertaining proposals to toughen restrictions on

cigarette advertising, Cipollone, 505 U.S. at 514-515, and the

tobacco companies again faced the prospect that each of the

fifty states (as well as cities and counties) might impose

packaging and advertising requirements on the industry.

It was in that context that Congress adopted the 1969

Act, which banned cigarette ads from TV and radio, allowed

the FTC to impose warning-label requirements on print

advertisements after July 1, 1971, and stiffened the health

warning requirements for cigarette packaging. It also amended

§ 5(b), introducing the present language: "No 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 provisions of this chapter." 15 U.S.C. § 1334(b).

Obviously, the current version of § 5(b) is broader than -

the original. However, read in the light of this history, the

salient change substituting "requirement or prohibition" for

"statement" did not indicate that Congress intended to preempt

anything other than state or local measures that affected

8

advertising content.’ Rather, it indicates that Congress intended

to preempt not only the affirmative act of requiring

"statements" but also any health-based prohibitions of

particular messages, themes or images.

Congress's express statement of purpose in the 1965 and

1969 Acts also supports the conclusion that Congress was not

concemed with state or local rules that regulate only the

location of cigarette advertising. When Congress amended

§ 5(b), it let stand the same declaration of legislative intent

found in the 1965 Act. 15 U.S.C. § 1331. It still sought to keep

the public "adequately informed about any adverse health

effects of cigarette smoking" and to protect "commerce and the

national economy" from being “impeded by diverse,

nonuniform, and confusing cigarette labeling and advertising

regulations with respect to any relationship between smoking

and health." Id. (emphasis added).

In 1969, no less than in 1965, Congress's sole concern,

with respect to preemption, was to prevent state and local

content regulation and thereby protect the tobacco and

advertising industries from the burden of having to produce

different ads to conform to each state or local regulation. ~

* Congress may certainly have intended § 5(b) to prevent states from

enacting bans on cigarette advertising in all or most media, as the

California State Senate had started to do in a bill passed in 1969.

Cipollone, 505 U.S. at 515 n. 11. Such extreme measures obviously

affect advertising content by eradicating it altogether. However, the

Regulations at issue here are narrowly focused. They do not touch

magazine and newspaper ads, clothing promotions, direct mail or

Internet advertising, and they permit both outdoor and retail

establishment advertising in zones that are less frequented by

children.

This point was clearly made in a 1969 House debate.

Rep. Brock Adams (D-Wash.) introduced an amendment to

allow states that prohibited cigarette sales to minors to require

all cigarette advertising to include a warning that such sales

were illegal. Rep. Lawrence Fountain (D-N.C.) spoke against

the amendment, noting that it "would create utter chaos and

virtually make impossible . . . the dissemination of nationally

published magazines and indeed many locally published

newspapers," and that it would force advertisers to create "fifty

different advertising formats." 115 Cong. Rec. 16291 (1969).

The Adams amendment failed. /d. See also H.R. Rep. No. 91-

289, at 33 (1969) (minority views of Reps. Jarman, Dingell and

Adams). Congress was motivated to modify § 5(b) by the fear

of homegrown message regulation, not the fear that tobacco

companies would have to follow state or local zoning laws.

After the House bill passed and was sent to the Senate,

it was referred to the Senate Commerce Committee, whose

members included Senator Frank Moss, a forceful and ardent

foe of tobacco. Senator Moss was from Utah, a state which

had enacted a ban on all in-store tobacco displays and all

outdoor tobacco advertising forty years earlier. Laws Utah

1929 ch. 92. Utah’s protection of the right of its citizens to be

free from having tc tobacco messages imposed upon them was not

some quaint int old law that was unknown or unenforced. In fact,

it had been upheld by this Court in Packer Corp. v. Utah, 285

U.S. 105 (1932) and it was in force in 1969. It remains in force

today. Utah Code Ann. § 76-10-102(1) (1995).

If it were manifestly obvious that the bill that became

the 1969 Act would preempt Utah's ban, then why didn't

Senator Moss speak against it? Why instead did he become the

Senate Manager of the bill? H.R. Rep. No. 91-897, at 8 (1970).

The reason neither he nor any other member of Congress ever

voiced any concern about state or local tobacco billboard

10

—y

regulation is that the 1969 Act was never meant to strip states

like Utah of their sovereign authority to safeguard citizens from

having tobacco advertising thrust upon them by intrusive

methods. Where a broadly worded preemption statute is at

issue, Congress's silence with respect to a well-established state

regulatory measure, such as Utah’s law, is a reliable indication

that Congress did not intend to preempt that measure. See

Medtronic, 518 U.S. at 491 (plurality opinion); Dillingham,

519 U.S. at 331-32. If § 5(b) did not preempt Utah’s broad

state-wide prohibition against all outdoor and in-store cigarette

advertising, it surely does not preempt the Massachusetts

Attorney General's much narrower Regulations.

The Senate’s report on the bill reiterated that

preemption was needed to "avoid the chaos created by a

multiplicity of conflicting [state and local] regulations." S. Rep.

No. 91-566, (1969), reprinted in 1970 U.S.C.C.A.N. at 2652,

2663. Section 5(b) was described as "narrowly phrased" and

not intended to touch state power over sales to minors, taxation,

indoor smoking, or "similar police [power] regulations. It is

limited entirely to State or local requirements or prohibition

[sic] in the advertising of cigarettes." Jd. (Emphasis added).

These statements strongly indicate that Congress

intended § 5(b) only to prevent state or local interference with

the content of cigarette advertisements because only content

regulation would create a multiplicity of conflicting rules “in

the advertising of cigarettes.” Only content regulation by the

states threatens to impose on the tobacco companies and their

advertisers the substantial burden that prompted Congress to

defeat the Adams amendment - the burden of having to

produce ads to “conform to fifty different formats.”

Unlike content regulations, location restrictions do not

create the advertiser’s nightmare that Congress sought to

11

prevent when it adopted § 5(b). They do not require the tobacco

companies to design and produce different advertisements to

accommodate diverse state or local laws, and do not impose

any "confusing" burden on tobacco advertisers, let alone

impede "commerce and national economy," 1965 Act, § 1331.

As the Second Circuit explained, in upholding a New

York City ordinance barring outdoor and some indoor tobacco

advertisements within 1,000 feet of schools and playgrounds:

Divergent local zoning restrictions on

the location of sign advertising are a

commonplace feature of the national landscape

and cigarette advertisers have always been

bound to observe them. Thus, with or without

[New York City's ordinance], a cigarette

advertiser will still have to ascertain where it

can permissibly advertise in light of diverse

local zoning ordinances.

Greater New York Metropolitan Food

- Council, Inc. v. Giuliani, 195 F. 3d 100, 109

(2d Cir. 1999).

How can the Petitioners now claim before this Court

that it is a “crippling” burden, (Pet'rs' Br. at 13), for them to

honor the Commonwealth’s storefront sign regulations when

the Petitioners under the MSA have already agreed not to use

off-premises billboards? Massachusetts simply closed a

loophole by preventing the use of storefront signs near schools

and playgrounds. Similarly, the only burden created by the in-

store regulations is that retail store owners near playgrounds

and schools will have to ensure that tobacco ads are kept at

least five feet off the floor. In short, the Regulations do not

impose any discernible burden on tobacco manufacturers, their

advertising agencies or the nation's economy.

12

c. The case law on § 5(b) strongly supports the

conclusion that Congress intended to

preempt only those requirements or

prohibitions that affect the content of

tobacco brand advertising.

The contentv/location distinction has been embraced by

the U.S. Courts of Appeals for the Fourth, Seventh and Second

Circuits, as well as the First Circuit in the case at bar. Penn

Advertising of Baltimore, Inc. v. Mayor of Baltimore, 63 F.3d

1318, 1324 (4th Cir. 1995) ("Penn Advertising I"); Fed'n of

Adver. Indust. Representatives v. Chicago, 189 F.3d 633, 638-

639 (7th Cir. 1999)("FAIR"); Giuliani, 195 F. 3d at 105-106,

109-110; Consolidated Cigar Corp. v. Reilly, 218 F.3d 30, 39-

41 (1st Cir. 2000). These jurists concluded that Congress never

intended to tread upon the states' traditional authority to restrict

advertising by zoning or similar laws.

Against the weight of this authority is the dictionary-as-

law analysis of Lindsey v. Tacoma-Pierce County Health Dept.

195 F. 3d 1065 (9th Cir. 1999), and its jurisprudential soul-

mate, Rockwood v. City of Burlington, 21 F. Supp. 2d 411 (D.

Vt. 1998). The Burlington case merits particular consideration

because it offers a textbook example of what can go wrong

when a judge applies a "plain meaning" approach to the

preemption language of § 5(b), while refusing to consider what

Congress was really trying to accomplish.

The City of Burlington, like Massachusetts, had

regulated point-of-purchase and outdoor sign tobacco

advertising and had prohibited the distribution of free samples

of tobacco products. /d. at 414-415. Since § 5(b) applies to

“advertising and promotion,” and handing out free cigarettes is

a well-recognized method of advertising and promoting the use

13

of cigarettes,’ the district court judge concluded that

Burlington’s anti-sampling prohibition “directly affects the

advertisement and promotion of cigarettes, and consequently,

however well advised the measures are, they are preempted by

the FCLAA.” Jd. at 420.

That portion of the Burlington opinion § sharply

illustrates how relying solely on the plain meaning of § 5(b)

can lead to results that are destructive of our federalism.

Whatever the plain meaning of “advertising and promotion,”

Congress never meant to take away the power of local

communities to prevent the free distribution of cigarettes to

sixth graders. The full text and legislative history of § 5(b)

makes that point abundantly clear. Senate Report 91-566 states

that preemption was not intended to interfere with “police

regulations” such as public smoking, taxation or “the sale of

cigarettes to minors.” 1970 U.S.C.C.A.N. at 2663. The 1969

Act itself defines “sale” to include “sampling or any other

distribution not for sale.” 15 U.S.C. § 1332(6).

If the Senate Report says that state and local regulation

of the “sale of cigarettes to minors” is not preempted, and

sampling is defined within the 1969 Act to be a sub-species of

sale, then sampling regulations should not be preempted. See

generally Donald W. Garner, Tobacco Sampling, Public Policy

and the Law, 11 J. Health Politics, Pol'y & Law, 423 (1986).

Congress did not take leave of its senses. It never meant to give

*The Tobacco Institute's Code of Cigarette Sampling Practices states

that "[c]igarette sampling is a form of cigarette advertising." The

Tobacco Institute, Code of Cigarette Sampling Practices (1983).

After the MSA took effect in 1998, the industry's expenditures on

sampling soared, from $14.4 million in that year, to $33.7 million in

1999 — an increase of 133.5 percent. Federal Trade Commission,

Federal Trade Commission Cigarette Report for 1999 (2001).

14

the tobacco industry the right to subvert laws in all fifty states

that prohibit distribution of cigarettes to minors. See Garner &

Whitney, supra, at 498 n. 103. Yet with its plain meaning

blinders on, the Burlington court tumed § 5(b) into a parody of

the true will of Congress.

Just as the troubled phrase in § 5(b), "with respect to the

advertising or promotion of any cigarettes," was not intended

to repeal juvenile sampling laws, it also was not intended to

preempt state or local zoning of outdoor and in-store tobacco

ads. By “advertising and promotion,” Congress was simply

referring to the message, not the media that carry the message

or locations where the message may be placed.

While this Court had no need to consider the critical

distinction between content and location regulation in

Cipollone, the opinions and outcome in that case are fully

consistent with such a distinction. The question in Cipollone

was whether § 5(b), under either the 1965 Act or the 1969 Act,

preempted state common-law tort and breach-of-warranty

claims. Cipollone, 505 U.S. at 512. The Court found that some

claims were not preempted because they were not "imposed

under state law," id. at 525 (plurality opinion), or were not

"based on smoking and health." /d. at 528-29 (plurality

opinion). All ofthe claims that the Court found were preempted

under § 5(b), however, were aimed at regulating the content of

tobacco advertising by challenging, varying or supplementing

required statutory health warnings.

With respect to the failure-to-warn claims, for example,

the plurality held that, "insofar as claims under either failure-to-

warn theory require a showing that respondents’ post-1969

advertising or promotions should have included additional, or

more clearly stated, warnings, those claims are pre-empted."

Id. at 524. Similarly, it held that a fraudulent misrepresentation

15

claim was preempted because it was "predicated on a state-law

prohibition against statements in advertising and promotional

materials that tend to minimize the health hazards associated

with smoking." /d. at 527 (emphasis added).

By refusing to hold the tobacco companies liable for

health claims based on the failure of cigarette advertising to

carry warnings over and beyond those required by the federal

government, Cipollone recognized the central preemption goal

of Congress: to have but a single federal master to determine

what must and must not be said about the dangers of smoking

in cigarette ads and on packaging.

In the entire case law on § 5(b) to date, not one opinion

has unearthed a single fact in the legislative history that is

inconsistent with the compelling distinction between regulation

of advertising content and regulation of advertising placement.

Rather, the legislative history and prevailing case law alike

point to the conclusion that, by "requirement," Congress

intended to preempt state rules mandating the inclusion of

health content in tobacco advertising, and by "prohibition,"

Congress intended to preempt state rules mandating the

exclusion of health-related content from tobacco advertising.

Since the Massachusetts Regulations do not impose either a

requirement or a prohibition that relates to tobacco advertising

content, they are not preempted.

To find that the Regulations are preempted, this Court

would have to conclude that it was the “clear and manifest

purpose of Congress” to strip the states of the power to create

zones where children may learn and play free of solicitations to

smoke. Cipollone, 505 U.S. at 518. Yet not one shred of proof

of such a purpose has emerged from the litigation arising out of

Baltimore, Chicago, Tacoma-Pierce County, Burlington, New

York or Massachusetts. k

16

Congress was concerned with protecting “commerce

and national economy.” 15 U.S.C. § 1331. State laws that only

proscribe the location of outdoor and in-store signs do not in

any way threaten the national economy — as this Court

unanimously decided in Packer, 285 U.S. at 111. On the

contrary, such laws are in perfect harmony with Congress's

overarching purpose. It was, after all, the very same 1969 Act

that outlawed cigarette advertising on television and radio,

thereby shielding children from being involuntarily exposed to

such ads through these similarly intrusive media. 15 U.S.C. §

1335; see also Capital Broadcasting Co. v. Acting Attorney

General, 405 U.S. 1000 (1972), aff'g without opinion Capital

Broad. Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971).

In sum, there is no clear and manifest sign — indeed,

there is no sign at all — that Congress wanted to destroy the

longstanding right of state and local governments to zone the

location of cigarette advertising, any more than it wanted to

destroy Utah's 70-year-old ban on outdoor and in-store

advertising or nullify state laws banning sampling to minors.

On the contrary, a reasoned understanding of the way Congress

intended the 1969 Act to apply leads to the common-sense

conclusion that Congress did not disturb the right of the people

of Massachusetts to decide where cigarette advertising may be

displayed in their state.

17

II. THE REGULATIONS DO NOT VIOLATE THE

FIRST AMENDMENT, SINCE THEY ARE

CAREFULLY DRAWN TO PROTECT

CHILDREN FROM EXTRAORDINARILY

HARMFUL MESSAGES IMPOSED ON THEM

BY INTRUSIVE AND UNAVOIDABLE MEANS

OF ADVERTISING.

The tobacco industry urges this Court to declare that the

marketplace of products and the marketplace of ideas should be

accorded the same First Amendment protection. Amici urge

this Court to declare that children are not to be treated as adults.

"The simple reality is that the Court will never provide

child pornography or cigarette advertising the level of

protection customarily granted to political speech." R.A.V. v.

City of St. Paul, 50S U.S. 377, 415 (1992) (Blackmun, J.,

concurring). This equation of cigarette advertising and child

pornography, written by the author of the commercial speech

doctrine, Virginia State Bd. of Pharm. v. Virginia Citizens

Consumer Council, Inc., 425 U.S. 748 (1976), animates the

First Amendment argument of Amici. Whatever may be the

fate of the commercial speech doctrine, children must be

accorded a special place in the firmament of the First

Amendment.

Recognizing that Respondent and other amici will

defend the continued vitality of the commercial speech

doctrine, Amici advance an alternative and complementary

argument in favor of upholding the Regulations: Irrespective of

whether the Court's starting point is "strict scrutiny” or the

"intermediate scrutiny" test for commercial speech, the

Regulations are entitled to extraordinary judicial deference.

Under settled First Amendment principles, the Massachusetts

Regulations should be upheld, first, because they are narrowly

18

aimed at protecting children from messages promoting the use

ofa substance so uniquely dangerous, lethal and addictive that

it cannot be legally sold to them. Second, the Regulations

should be upheld because they apply only to the most intrusive

types of media — billboards, outdoor signs and in-store ads —

that children cannot avoid.

A. This Court's well-settled rule giving

government considerable latitude to protect

children from indecent speech should be

extended to government measures aimed at

protecting children from speech that can

lead to their death.

This Court has long recognized that governments, in

their role as parens patriae, may impose reasonable restrictions

on First Amendment rights when necessary to protect children.

In Prince v. Massachusetts, it proclaimed:

The state’s authority over children’s

activities is broader than over like actions of

adults .... A democratic society rests, for its

continuance, upon the healthy, well-rounded

growth of young people into full maturity as

citizens, with all that implies. It may secure

this against impeding restraints and dangers,

within a broad range of selection.

321 U.S. 158, 168 (1944).

The Court later applied this principle to state-imposed

restrictions on freedom of speech. In Ginsberg v. State of New

York, 390 U.S. 629, 631 (1968), it upheld a law prohibiting the

sale to minors of materials depicting female nudity in a manner

appealing to prurient interests. Citing Prince, the Court held

that the state’s power to protect children placed limits on the

19

seller’s First Amendment nght to peddle such materials. /d. at

638-641. Justice Stewart's concurring opinion tellingly

observed that a child “is not possessed of that full capacity for

individual choice which is the presupposition of First

Amendment guarantees.’’/d. at 650 (Stewart, J., concurring).

The Ginsberg principle has been upheld by the Court on

numerous occasions, in the context of protecting children from

indecent speech. See, e.g., FCC v. Pacifica Found., 438 U.S.

726, 749 (1978); Bethel Sch. Dist. v. Fraser, 478 U.S. 675

(1986); Denver Area Educ. Telecommunications Consortium,

Inc. v. FCC, 518 U.S. 727, 743 (1996) (Breyer, J., plurality).

See also Capital Broadcasting Co. v. Acting Attorney General,

405 U.S. 1000 (1972), aff'g without opinion Capital Broad. Co.

v. Mitchell, 333 F. Supp. 582, 585-86 (D.D.C. 1971)

(upholding provision of 1969 Act outlawing cigarette

advertising on television and radio, in part because evidence

showed that they were "particularly effective in reaching a

large audience of young people").

Two of this Court's more recent opinions have

reaffirmed the vitality of this doctrine, making clear that the

need to protect impressionable youth from harmful speech

merits special consideration in its First Amendment calculus

even as they struck down regulations that impermissibly

constricted the flow of communication to adults.

In Reno v. American Civil Liberties Union, 521 US.

844 (1997), this Court voided the Communications Decency

Act ("CDA"), which imposed criminal penalties on any

individual who knowingly transmitted obscene or indecent

messages over the Internet to anyone under 18 years of age.

The Court upheld the central tenets of Ginsberg and Pacifica,

carefully explaining a host of distinctions. /d. at 864-871. The

CDA was both vague, id. at 871-874, and overbroad,

20

threatening to visit criminal sanctions upon adults who

transmitted the most marginally indecent speech to an audience

that included even one individual under age 18. Jd at 876-878.

The majority characterized it as a "content-based blanket

restriction on speech." Jd. at 868. While the CDA may well

have chilled the free speech rights of adults, the Massachusetts

Regulations unquestionably leave adults with ample alternative

avenues for obtaining tobacco product information, are certain

of definition and do not deter Petitioners from propagating their

ads through other media and venues.»

In United States v. Playboy Entertainment Group, Inc.,

529 U.S. 803, 120 S. Ct. 1878 (2000), the Court struck down

a federal statute that sought to protect children from indecent

images that they might see on cable television from "signal

bleed." The law required cable television operators to either

fully scramble their sexually-oriented programs or broadcast

them late at night. The majority opinion implicitly

acknowledged that the government's interest in protecting

children from seeing or hearing offensive material without

parental consent constituted a compelling Government interest.

120 S. Ct. at 1885-1887.° It found the statute unconstitutional

* Justice O'Connor's partial concurrence is especially noteworthy

here, as it reviews the states' ubiquitous use of zoning laws te create

"adult zones," which deny minors access to harmful speech. /d. at

887-889 (O'Connor, J., concurring in part and dissenting in part). She-

observes that such laws are valid if they keep children away from

speech that they have no right to obtain, without unduly restricting

adults' right to the same speech. /d. at 888-889 (O'Connor, J 7

concurring in part and dissenting in part). By this standard, which is

fully consistent with the majority opinion, the Regulations clearly

pass First Amendment muster.

® Justice Breyer's dissenting opinion expressed concern that the

majority opinion carried the opposite implication. /d. at 1901

21

because of the ready availability of a less restrictive alternative

(blocking undesired channels by parental request) and the

Government's failure to prove that the problem was pervasive

and that the less restrictive alternative was inadequate. /d. at

1888-1892. Even at that, four members of this Court concluded

that "the special need to protect children," id. at 1904 (Breyer,

J., dissenting), along with serious questions regarding the

effectiveness of these alternatives, id. at 1902-1903 (Breyer, J.,

dissenting), should have dictated a different result.

In contrast to the alternatives available to parents who

wish to protect their children from signal bleed, there is no less

restrictive means of blocking children's access to harmful

solicitations to use tobacco. Parents cannot be expected to

blindfold their children before sending them out to play or

allowing them to enter a convenience store. What else was the

Commonwealth supposed to do to protect children from

exposure to outdoor and in-store tobacco advertising, after

finding it was a pervasive problem in Massachusetts? (J.A. at

105-106.) The state did not prohibit all storefront billboards,

only those near schools and playgrounds. The state did not

eliminate in-store ads, it simply moved them away from

children’s eye level.

(Breyer, J., dissenting) (citing majority opinion at 1891-1892).

Respectfully, this concern appears to be unwarranted. The majority

simply opines that, where the Government has at its disposal a much

less restrictive alternative that allows parents to block the offending

speech, its "iniccest in substituting itself for informed and

empowered parents, . . . is not sufficiently compelling to justify this

widespread restriction on speech." /d. at 1892 (emphasis added). This

does not signal the Court's abandonment of the well-settled rule of

giving special consideration to regulations aimed at protecting

children from harmful speech.

22

Reno and Playboy reaffirm this Court's view that

carefully drawn government measures to protect children from

harmful speech are accorded greater latitude than similar

measures imposed on the general population. The same state

paternalism that it rightly criticizes when imposed on adults,

see, e.g., Virginia State Bd., 425 U.S. at 770, is a virtue when

appropriately applied to children. The key consideration is

whether the law at issue "unduly restrict[s] adults’ access to

constitutionally protected speech," Reno, 521 U.S. at 889

(O'Connor, J., concurring in part and dissenting in part) —

which the Massachusetts Regulations plainly do not.

Carefully drawn state measures, aimed at protecting

children from solicitations to use an addictive product that can

kill them, are deserving of at least the same latitude as that

given to measures that seek to shield children from indecent

speech. In Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325 (4th

Cir. 1996), the Fourth Circuit Court of Appeals adopted that

reasoning in upholding Baltimore’s restrictions on outdoor sign

alcohol advertising. It stated that its decision "conforms to the

Supreme Court’s repeated recognition that children deserve

special solicitude in the First Amendment balance because they

lack the ability to assess and analyze fully the information

presented through commercial media." /d. at 329.’ The court

supported its decision by citing to this Court's decisions on

indecent speech. /d. at 329-30.

Like Baltimore's ordinance, the Massachusetts

Regulations are not in violation of the First Amendment for the

very same reason that an ordinance prohibiting outdoor signs

’ The same rationale was summarily applied to Baltimore's

restrictions on outdoor sign tobacco advertising. Penn Advertising of

Baltimore, Inc. v. Mayor of Baltimore, 101 F.3d 332 (4th Cir. 1996)

(Penn Advertising I).

23

displaying full frontal nudity, or an ordinance limiting the

display of pornographic magazines in stores to "adults only"

sections, are constitutionally authorized. See Midwest

Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389 (8th

Cir. 1985). So long as adults can receive adult messages,

children can be shielded from adult messages.

The argument for recognizing the authority of

governments to protect children from uniquely dangerous

messages is even more compelling when the regulation stands

on a strong empirical footing. This Court's recognition that

youngsters may suffer psychological harm when they view

indecent images or hear indecent speech was based on common

sense and experience; no proof was provided, nor was it

needed, as the Court observed in Ginsberg, 390 U.S. at 641-

642. In contrast, there is no shortage of proof that tobacco

advertising plays a significant role in luring children into the

trap of nicotine addiction. Both the FDA and the U.S. Surgeon

General, after exhaustive study, have concluded that

advertising plays a substantial role in influencing children to

begin using tobacco. Regulations Restricting the Sale and

Distribution of Cigarettes and Smokeless Tobacco to Protect

Children and Adolescents, 61 Fed Reg. 44,396, 44,466

(1996)("FDA Regulations"); U.S. Dep’t of Health & Human

Servs., Previsting Tobacco Use Among Young People: A

Report of the Surgeon General iii (1994)("1994 Surgeon

General's Report"). These governmental findings are confirmed

by overwhelming social science evidence proving the link

between tobacco advertising and experimentation with, and

then addiction to, tobacco products by minors. (J.A. at 104-

125.)

Most of the victims of tobacco advertising are minors.

The average age of smoking initiation is fourteen. 1994

Surgeon General's Report, at 41. Over 80% of all tobacco users

24

first began using tobacco before turning eighteen. Tobacco Use

Among High School Students—United States, 1997. Morbidity

& Mortality Wkly. Rep. (U.S. Dep’t of Health & Human

Servs., Apr. 3, 1998), at 229. Overall, 42.7% of high school

students use some form of tobacco. /d. at 230.

Precisely because children "lack the ability to assess

and analyze fully the information presented through

commercial media," Anheuser-Busch, 101 F.3d at 329, they are

more likely to fall prey to tobacco advertising messages than

adults and begin experimenting with tobacco use before

developing the intellect needed to fully appreciate the

consequences of that decision. Seventy percent of smokers

aged 12 to 17 say that they already regret their decision to

smoke and 66% say they want to quit. FDA Regulations, supra,

at 44,398. Thus, by the time young smokers reach adulthood,

they are already bound by the garrote of nicotine addiction.

"[A]n adolescent decision made as an 11- or 12-year old is

going to result in a painful, premature and needless death for

over five million of today’s children... . They will, on

average, die 12 years earlier.’ News and Views From the

Franklin County Prevention Institute, Reuters, Nov. 14, 1996

(quoting Michael Ericksen, Director of the Office of Smoking

and Health, Centers For Disease Control and Prevention).

Given both the breadth and the gravity of this public

health menace, one that is literally a matter of life and death to

millions of young people, and given that advertising plays a

significant role in fostering the problem among children, this

Court should extend its "special solicitude" for child-protection

measures to the Massachusetts Regulations.

In their brief, Petitioners do not acknowledge this

Court's extraordinary deference toward child-protection

measures but attack it indirectly, (Pet'rs' Br. at 36-38),

25

portraying themselves, rather than their hapless adolescent

customers, as victims. They claim that "virtually no public

display of favorable images of tobacco will be permitted in

Massachusetts," (Pet'rs' Br. at 36), and equate the Regulations

with a "blanket ban." (Pet'rs' Br. at 38.) That is false. The

industry has in fact retained broad alternative avenues of

communication to convey their advertisements to adult

consumers — not only storefront signs outside the forbidden

zones, and in-store ads placed more than five feet above the

ground, but also newspapers, magazines, direct mail,

promotional clothing, the Internet, etc.

As the FTC recently revealed, the tobacco

manufacturers have exploited such alternative avenues with a

vengeance: Total advertising and promotional expenditures in

the cigarette industry rose a remarkable 22.3 percent in 1999

alone. The $8.24 billion spent was "the most ever reported to

the Commission." Federal Trade Commission, Federal Trade

Commission Cigarette Report for 1999 2 (2001). The industry

spent $51 million on newspaper ads, $377.4 million on

magazine ads, $38.7 million on point-of-sale ads, $3.54 billion

on promotional allowances to retailers, $33.7 million on free

cigarette samples distributed to the public and $355.7 million

on mail distribution and promotional events. /d. at 3-4. Clearly,

the industry will have no trouble getting its message across to

adult consumers in Massachusetts. Compare 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484 (1996) (stnking down

statute that barred all advertising of alcohcl prices except in-

store ads, on grounds that it amounted to a "blanket ban" on

commercial speech).

Finally, Petitioners’ reliance on Carey v. Population

Services International, 431 U.S. 678 (1977), is actually

supportive of the Regulations, for it precisely illustrates what

the case at bar is not about. (Pet'rs' Br. at 36-37.) Carey

26

concerned a complete ban on all advertising of contraceptives

in the State of New York, id. at 681; the Massachusetts

Regulations merely restrict the advertising of tobacco products

to particular media and locations. In Carey, the Court rejected

as unsubstantiated the government’s argument that restrictions

on contraceptive ads were needed to protect children from

unwholesome influences, id. at 694-698, 701; in the instant

case, Massachusetts has provided a wealth of data showing

that tobacco advertising poses a grave threat to children's

health. (J.A. at 102-127.) In Carey, the ads promoted products

and services that enjoy constitutional protection for their sale,

id. at 701; tobacco ads, far from enjoying such added

constitutional protection, promote a deadly product that

governments have every right to ban altogether. Austin v.

Tennessee, 179 U.S. 343 (1900).

In Carey, the State of New York attacked contraceptive

advertising on the ground that it might be offensive and

embarrassing and might legitimize illicit sexual activity among

young people. 431 U.S. at 701. This Court, in a footnote,

viewed such arguments as attacking the ideas conveyed in the

ads, rather than addressing any commercial aspect. /d. at 701 n.

28. Seizing on that footnote, Petitioners argue that the

Regulations, too, are an attack on their ideas, rather than on the

commercial aspect of their ads. (Pet'rs' Br. at 37).

However, the only idea being suppressed by

Massachusetts is the idea that tobacco is a desirable product

children should use. There are no constitutionally sacrosanct

messages intermingled with the sales pitch and no

constitutional rights implicated beyond the First Amendment

rights at issue.

Thus, unlike the sweeping prohibition at issue in Carey,

the Commonwealth's Regulations are truly deserving of this

27

Court's special solicitude for measures that protect children

from distinctly harmful speech.

B. The Regulations pass First Amendment

scrutiny for the additional reason that they

target speech disseminated by intrusive

media, which impose harmful messages on

children in a manner that cannot be avoided.

If governments possess considerable authority to protect

children from patently harmfu! speech, they possess still greater

authority to protect children from such speech when it is

disseminated by intrusive media. This Court has long

recognized the government’s authority to protect the nght ofall

people, young and old alike, to go about their lives without

having speech involuntarily imposed on them.

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

Court upheld Utah's ban on all outdoor tobacco sign and point-

of-purchase advertising, largely on the ground that the law was

aimed at protecting minors. /d. at 108-110. The Court also

emphasized that, while most advertising “is ordinarily seen as

a matter of choice on the part of the observer,” “[b]illboards,

street car signs, and placards and such are in a class by

themselves. . . . to be seen without the exercise of choice or

volition on their part.” /d. at 110 (citation omitted).

Although Packer was not a First Amendment case, the

Court has subsequently applied this distinction between

intrusive or "captive audience" speech, and speech that the

recipient chooses to receive, in upholding government

restrictions on speech against First Amendment challenges. In

Kovacs v. Cooper, it upheld an ordinance prohibiting the use

of sound trucks, on the grounds that people cannot escape

messages propagated by such means. 336 U.S. 77, 86-87

28

(1949). In Lehman v. City of Shaker Heights, the Court upheld

a city's refusal to sell advertising space on mass transit vehicles

to candidates for public office, largely because "[t]he streetcar

audience is a captive audience." 418 U.S. 298, 302 (1974)

(plurality opinion); “id. at 306-307 (Douglas, J., concurring)

(emphasizing captive audience rationale). Accord Breard vy.

Alexandria, 341 U.S. 622, 644 (1951) (upholding

municipality's authority to ban door-to-door Canvassing);

Rowan v. United States Post Office Dep't, 397 US. 728, 736-

737 (1970) (upholding federal statute requiring direct mail

advertisers of sexually provocative material to remove persons

from mailing list at the request of the addressee).

In FCC v. Pacifica Foundation, 438 U.S. 726 (1978),

the Court upheld the FCC's authority to sanction a radio station

that broadcast offensive language at a time when children were

undoubtedly in the audience. A vital part of the Court's

rationale was the "uniquely pervasive presence" of the

broadcast media and the fact that listeners cannot avoid the

indecent speech, at least not until they have already been

subjected to a dose of it. /d. at 748-749,

The government’s considerable authority to protect

children from speech that is both harmful and intrusive was

recently reaffirmed by this Court in Denver Area Educ.

Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727

(1996), where it held that "the need to protect children from

exposure to patently offensive sex-related material" amply

justified a federal statute allowing cable TV systems to ban

such indecent programs over leased access channels. 518 U.S.

at 743 (Breyer, J., plurality). The Court upheld the law — even

though it inconvenienced adults who would therefore have to

rent videotapes in order to view such material — largely

because such programming can be seen by children "generally

29

without sufficient prior warning to allow the recipient to avert

his or her eyes or ears." /d.at 744.

Petitioners fail to explain how children can avert their

eyes from convenience store billboards when they walk to

school or can fail to notice point-of-purchase cigarette displays

that cover shops like wallpaper.

Conclusion

The Massachusetts Regulations are fairly balanced to

protect children from harmful solicitations to use tobacco,

while preserving the night of adult consumers to receive

tobacco advertising. Accordingly, Amici respectfully request

that this Court affirm the judgment of the Court of Appeals.

Respectfully Submitted,

Donald W. Garner

Counsel of Record Richard J. Whitney

Professor of Law Speir & Whitney

Lesar Law Building 3200 Fishback Road

Southern Illinois University Carbondale, IL 62901

Carbondale, IL 62901-6804 (618) 549-5159

(618) 453-8718

George A. Hacker

Director, Alcohol Policies Project

Center for Science in the Public Interest

1875 Connecticut Avenue, N.W., Suite 300

Washington, D.C. 20009

(202) 332-9110, ext. 343

Counsel for Amici Curiae

30

APPENDIX A

DESCRIPTION OF INDIVIDUAL AMICI CURIAE

Amicus American Medical Association (AMA), with a

membership of more than 280,000 physicians, is the largest

private nonprofit organization of physicians in the United

States. The AMA's mission is to promote the science and art of

medicine and the betterment of the public health. The AMA has

long opposed tobacco use based on the massive body of

scientific evidence that tobacco is addictive and kills smokers.

The AMA appears as a representative of the Litigation Center

of the American Medical Association and the State Medical

Societies. The Litigation Center is a coalition of the AMA and

50 state medical societies, organized to represent the interests

of organized medicine in the courts.

Amicus American Heart Association is a not-for-profit

health organization whose mission is to reduce disability and

death from cardiovascular disease and stroke.

Amicus American Lung Association is a voluntary

health organization whose mission is to prevent lung disease

and promote lung health through public education, research and

advocacy.

Amicus American Cancer Society (ACS) is a nonprofit

public health organization with a membership of over 2.3

million volunteers throughout the country, including over

50,000 physicians. ACS is committed to the goal of controlling

and eliminating cancer through research, education, advocacy

and service. Research conducted and supported by ACS since

la

the1950s has played a pivotal role in identifying the use of

tobacco products as a major cause of cancer. The ACS joins

this bref on behalf of the National Home Office of the

American Cancer Society and its New England Division.

Amicus Center for Science in the Public Interest

advocates public health policies to reduce alcohol problems and

has led efforts to restrict youth-oriented advertising of alcoholic

beverages.

Amicus Massachusetts Medical Society, founded in

1781, is the oldest continuously operating medical association

in America, with more than 17,000 physician and student

members. Its chartered purpose is “to do all things as may be

necessary and appropriate to advance medical knowledge, to

develop and maintain the highest professional and ethical

standards of medical practice and health care, and to promote

medical institutions formed on liberal principles for the health,

benefit and welfare of the citizens of the commonwealth.” The

Society, in the interest of patients and public health, has

actively supported efforts to regulate tobacco.

2a