Although the threat of federal legislation restricting the First Amendment rights of tobacco advertisers seems less likely than it did before the McCain bill died during the last Congress, state involvement in advertising restrictions is rapidly increasing. The number of localities that have implemented or are considering implementing tobacco and alcohol advertising restrictions far outweighs the number of localities that have defeated such restrictions.

   A few courts have upheld the restrictions. For instance, a district court in Lindsey v. Tacoma-Pierce County Health Department, 8 F. Supp.2d 1225 (W.D. Wash. 1998), denied convenience store owners' First Amendment challenge to a county regulation that limited outdoor advertisement of tobacco products. The court accepted, without examination, the regulations1 preamble and findings as support for the government's contention that advertising impacts minors' use of tobacco products. The court also rejected the convenience store owners' argument that the "reasonable fit" requirement of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), obligated the government to exhaust obvious alternatives to speech regulation before passing a more onerous ban.

   Similarly, a court in the Northern District of California partially enjoined a City of Oakland ordinance that restricted the placement of off-site outdoor advertisements of tobacco and alcohol products. Eller Media Co. v. City of Oakland, ___ F. Supp.2d ___, No. C98-2237 FMS, 1998 U.S. Dist. WESTLAW 827426 (N.D. Cal. Nov. 25, 1998). The court ruled that the plaintiffs were not likely to succeed in proving that they were constitutionally harmed by the ordinance1s application to commercial speech. To reach its conclusion that the ordinance advanced a substantial interest of the city in a reasonably direct manner, the court relied solely upon the terms of the ordinance, its preamble, and its legislative findings. Although the court denied the plaintiffs' commercial speech claims, it granted the plaintiffs1 motion for preliminary injunction insofar as the city might apply its ordinance to noncommercial speech about tobacco and alcohol products.

Enacted Ordinances

   Restricting Advertising Within the Vicinity of Certain Facilities or Landmarks. Many localities have enacted ordinances that ban tobacco and/or alcohol advertisements within a certain number of feet - between 500 and 5,000 - of certain facilities or landmarks, such as schools, playgrounds, public parks, libraries, churches, historic districts, day care centers, hospitals, and interstate highways. Such ordinances have passed in Little Rock, Ark., Inglewood, Calif. (enacted September 1997), Montclair, Calif., Los Angeles, Oakland (enacted December 1997), Durango, Colo. (enacted October 1998), Orange, Conn. (effective July 1998), Patterson, N.J. (enacted January 1998), Albany, Buffalo, New Rochelle, New York City, and Rochester, N.Y., Lansing and Warren County, Mich., St. Louis, Las Vegas,¹ Cincinnati, and Tacoma, Wash.

   Denver enacted a particularly detailed ordinance of this type in May 1998. Denver's ordinance bans tobacco billboard advertisements within 1,000 feet of schools, parks, and recreation centers. Denver's billboard companies agreed to limit tobacco advertisements to a maximum of 10 percent of all billboard faces within Denver by July 1999 and to prevent high concentrations of such billboards in black and Hispanic neighborhoods.

   Restricting Advertising in Publicly Visible Locations. Other localities have enacted ordinances that ban alcohol and tobacco advertisements from publicly visible locations. Cities that have passed similar ordinances include Los Angeles (passed September 1998, effective October 1999), Compton, Calif. (passed October 1997), San Francisco (effective July 1998), San Jose, and Cleveland (passed February 1998).

   General Advertising Restrictions. A limited number of localities have passed sweeping advertising restrictions. For instance, the health department in Pierce County, Wash., enacted a regulation that bans tobacco billboards except on Indian lands, while Covina, Calif., banned all billboards that advertise tobacco and alcohol (passed July 1998, effective Aug. 7, 1998).

Pending Ordinances

   Restricting Advertising Within the Vicinity of Certain Facilities or Landmarks. A number of localities are considering banning tobacco and alcohol advertising in any "publicly visible location" within a certain number of feet of a designated facility or landmark, such as a school, bus stop, day care center, park, playground, youth center, or place of worship. Cities considering such ordinances include Berkeley, Calif., New Haven, Conn., and Washington, D.C.

   Other localities, such as Contra Costa, Calif.,² San Diego, Bridgeport, Conn., and Clifton, N.J., are considering similar ordinances that would ban tobacco advertising only.

   Restricting Advertising in Publicly Visible Locations. In October 1997, Detroit1s city council asked the city1s law department to draft an ordinance that would outlaw the advertisement of alcohol and cigarettes in certain publicly visible locations. A written copy of this proposal was not available at this writing. Allentown and Harrisburg, Pa., and Lynchburg, Va., are considering similar ordinances. The common council of Milwaukee has passed a similar measure for tobacco advertising. The Milwaukee initiative cannot be enacted without the mayor1s approval.

   Restricting Advertising on Vehicles. A number of localities are considering restrictions on tobacco advertisements placed on moving vehicles. Boston is weighing a resolution that would urge the police commissioner to issue regulations banning tobacco and alcohol advertisements on licensed taxis and sight-seeing vehicles. Medfield, Mass., is considering a similar initiative that would ban tobacco advertisements on public transportation, and Fall River, Mass., is considering a ban on all tobacco advertisements on public transit vehicles that come within one mile of a school.

   General Advertising Restrictions. Washington Duchess County, N.Y., and Scamania County, Wash., are considering legislation that would ban tobacco advertisements on all billboards.

   King County, Wash., is discussing an ordinance that would prohibit tobacco billboards and ban all publicly visible tobacco advertisements. The health district board of Snohomish, Wash., is weighing an ordinance that would prohibit outdoor advertising of tobacco products. Fort Wayne, Ind., is considering a tobacco advertisement ban.

   A small number of localities have either proposed or are reviewing ordinances that would ban all tobacco advertisements. Longmeadow, Mass., is weighing such an ordinance. Cohasset, East Bridgewater, Marblehead, Nashoba Valley, Springfield, Templeton, and Wellesley, Mass., are considering bans that would prohibit tobacco advertisements and other forms of tobacco promotion. Elkhart, Ind., is discussing an initiative that would ban tobacco and alcohol advertising except signs in certain zoning locations. New London, Conn., and Los Alamos, N.M., are considering legislation that would ban all outdoor advertisements. Los Alamos1s initiative would ask retailers to remove advertisements from stores.

Defeated and Invalidated Ordinances

   A few localities have defeated certain bans on alcohol and/or tobacco advertising. The city council of Carson, Calif., rejected a proposed ban on alcohol and tobacco billboards within 1,000 feet of schools, parks, playgrounds, and day care centers. The city council suggested a more restrictive ordinance that would ban all tobacco and alcohol billboards citywide. In October 1997, the city council in Albuquerque rejected an initiative that would have banned signs advertising tobacco and alcohol. Bellevue, Neb., and Stillwater, Okla., defeated a ban on tobacco advertising. In March 1998, Prince George1s County, Md., rejected an ordinance that would have restricted the placement of tobacco billboards.

   Chicago enacted a similar ordinance that prohibited signs advertising tobacco and alcohol in a publicly visible location - such as outdoor billboards, sides of buildings, and free-standing signboards - except for signs on locations adjacent to an interstate highway, signs located in commercial manufacturing districts, or signs located in sports stadiums. In July 1998, a federal district court in Federation of Advertising Industry Representatives, Inc. v. City of Chicago, 12 F. Supp. 2d 844 (N.D. Ill. 1998), ruled that the ordinance was null and void. The court held that the tobacco portion of the ordinance was preempted by the Federal Cigarette Labeling and Packaging Act, and that the alcohol provision also failed because the ordinance lacked a severability clause.

   The U.S. Court of Appeals for the Second Circuit, in New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123 (2d Cir. 1998), cert. denied, 119 S. Ct. 68 (1998), held that the advertising space located on the outside of New York's Metropolitan Transportation Authority buses is a designated public forum. The court overturned the MTA's decision to prohibit New York magazine from advertising there. The MTA had barred New York magazine from placing on the outside of MTA buses its advertisements declaring that the magazine is "possibly the only good thing in New York [Mayor] Rudy [Giuliani] hasn1t taken credit for." In barring the advertisement, the MTA did not follow statutorily mandated procedures. The court declined to decide whether the speech at issue was commercial speech. Nonetheless, the court declared that there is "no reason why the requirement of procedural safeguards should be relaxed whether speech is commercial or not."