The applicability of federal preemption principles to state or local restrictions on outdoor tobacco advertising is a vexed question in the federal courts at present. Judges are attempting to cope with challenges to a proliferating array of such restrictions spawned by concerns about the health risks of smoking.

Two incompatible lines of decision have emerged since (and probably because of) the Supreme Court's badly splintered 1992 decision in Cipollone v. Liggett Group, interpreting Section 1334(b) of the Federal Cigarette Labeling and Advertising Act (FCLAA). The "no preemption" cases are led by the Fourth Circuit's 1995 and 1996 decisions in Penn Advertising v. Mayor and City Council, which concluded that Baltimorešs ordinance regulated only the location of outdoor tobacco advertising, not its content, and neither imposed a duty nor relieved a burden in a manner inconsistent with the FCLAA.

Relying at least in part on Penn Advertising, district courts in Washington State (Lindsey) and Missouri (Missouri Retailers) have rejected preemption challenges to local restrictions on cigarette advertising, usually by combining the Fourth Circuit's "location only / duty" rationale with a narrow reading of Section 1334(b). This is the express preemption provision inserted into the FCLAA by the Public Health Cigarette Smoking Act of 1969, examined in Cipollone:

"(b) 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."

The "preemption" cases are led by the Second Circuit's 1994 decision in Vango Media v. City of New York, a case that could not turn on "location" since the New York City ordinance was not an amendment of its zoning code (as most of the challenged restrictions are), but clearly did impose a duty. It required cigarette advertisers who displayed signs on property or facilities licensed for such use by the city (such as taxis) to display one public health message about the dangers of smoking, or the benefits of not smoking, for every four tobacco ads. In Vango Media, the court easily found that the regulation was a "requirement ... based on smoking and health" but noted that whether it was "with respect to the advertising or promotion of any cigarettes" was a more contentious issue.

The Vango Media court noted the Cipollone plurality's observation that the scope of Section 1334(b) was broadened by the inclusion of "with respect to" (as compared with the prior 1965 Act). Searching for plain meaning, the Second Circuit found nothing in Cipollone to suggest that those words were to have a meaning more restrictive than their ordinary one, and that the two dissenters (Scalia and Thomas) implicitly agreed with the plain meaning of "with respect to," i.e., "relating to."

From this perspective, the Second Circuit found no indication that Congress planned to permit laws like New York City's "to exist side by side with §1334(b)," stating that "the Local Law directly impacts advertisers and promoters because it imposes conditions on their display of cigarette advertisements."

The Vango Media analysis and interpretation of Section 1334(b) has been cited with approval and followed to some considerable degree in four recent cases. The district court in Chiglo v. City of Preston cited Vango Media favorably in striking down a local ordinance that prohibited all "point of sale" cigarette advertising and promotional materials except for small, generic signs announcing tobacco products for sale. The court specifically distinguished Penn Advertising's location analysis, finding that Preston's ordinance regulated content in order to address health concerns.

In Federation of Advertising Industry Representatives (FAIR) v. City of Chicago, the district court ruled that Chicagošs ordinance imposed "substantial prohibitions on the advertising of ... cigarettes." The Chicago ordinance was largely based on the Baltimore model, so the city placed heavy reliance on Penn Advertising's "locational" treatment of preemption.

Judge Shadur found Penn Advertising unpersuasive, citing Vango Media as a "much more analytical and reasoned approach" to interpretation of Section 1334(b) and characterizing the Fourth Circuit's "location" but not "content" comparison as an "ipse dixit" based on concepts found nowhere in the congressional language under review.

Not pausing there, the court analyzed the nature and origin of the Chicago ordinance (long-held legislative concerns for the health of minors) and found it to be "squarely within the literal coverage" of Section 1334(b). The court dismissed Chicago's argument "setting off" location against content as based on a "false dichotomy" not found in Section 1334(b) itself.

In Rockwood v. City of Burlington, the district court in Vermont struck down an ordinance that prohibited point-of-sale advertising of tobacco products, the use of promotional items in retail stores, and, with certain exceptions, tobacco advertising or promotion within 1,000 feet of a school property. The stated purpose of the ordinance was to "decrease the illegal use of tobacco products by minors."

Judge Sessions noted at the outset that "it strains credulity to adopt the rationale that the City's Ordinance is unrelated to smoking and health, merely because the City has stressed its purpose of reducing illegal activity by minors," given that "the dominant reason" lawmakers seek to restrict minors' use of tobacco is concern over health consequences.

The court cited Vango Media and FAIR with approval and rejected Burlingtonšs reliance on Penn Advertising, declining to adopt its reasoning and noting that the "plain language of §1334(b) makes no distinction between requirements or prohibitions of specific advertising language and requirements or prohibitions of specific advertising locations."

The most recent decision finding preemption is Greater New York Metropolitan Food Council v. Guiliani, where the district court struck down a New York City local law that prohibited outdoor advertisements for tobacco products within 1,000 feet of schools, playgrounds, day care centers, amusement arcades, or youth centers. The local law declared its stated purpose as: "to strengthen compliance with and enforcement of laws prohibiting the sale or distribution of tobacco products to children and to protect children against illegal sales."

The court turned immediately to Vango Media for guidance in interpreting the three components of Section 1334(b). Judge Batts easily found the local law to be a positive enactment that amounted to a "prohibition" within the first portion of Section 1334(b), citing Rockwood. She next rejected the city's argument that, since the express purpose of the law does not refer to smoking and health, it could not be "based on smoking and health":

"It is clear ... that the Court must not rely solely on the legislature's professed motivation for writing the law ... but must also examine the law's effects" (citing Gade v. National Solid Wastes Management Association and finding Vango Media in accord).

A review of the legislative history of the New York City law showed it to be replete with expressions of health concerns and condemnation of tobacco advertising as enticing youth smoking and thus exposure to addiction and tobacco-related illnesses.

Once again, the "with respect to" prong of Section 1334(b) proved to be the most contentious issue. The city contended that only requirements or prohibitions that affected the content of advertising and not merely its location were preempted, relying on Penn Advertising. Judge Batts found no support for such a distinction either in the federal act itself or in Vango Media which, she noted, was a precedent binding on the court. She found that the words "with respect to" connote a broad preemptive effect.

She further found that while the local law did not impose content changes or restrictions on the ads allowed in areas not reached by the law, that did not save the law from preemption because it "still [had] a substantial impact on the advertisers and promoters by limiting severely those areas where their advertising could be placed."

This was squarely within what Vango Media found to be preemptive: "[It] directly impacts advertisers ... because it imposes conditions on their display of cigarette advertisements." She found Penn Advertising's reasoning "unpersuasive" and its "content/location distinction ... misaligned with the teaching of Vango Media...."

As noted at the outset, the Penn Advertising rationale for denying preemption claims has found acceptance in two recent district court decisions.

Lindsey v. Tacoma-Pierce County dealt with a board of health ban on outdoor advertising of tobacco products. Licensed retailers are allowed to post price and availability information only outside their premises in "tombstone" formats, provided the location is more than 1,000 feet from, or not within sight of, any school, park, or playground.

The district court read Cipollone as requiring a narrow interpretation of Section 1334(b), based on a presumption, recognized in Cipollone, that "federal law does not supersede a state's historic police power unless that [is] the clear and manifest purpose of Congress." The court also cited Cipollone'sstatement that Section 1334(b)'s express preemptive scope must "fairly but - in light of the strong presumption against preemption - narrowly construe [its] precise language...."

Before beginning its application of preemption principles to the county regulation, the court stated: "The Federal Act only preempts any state law pertaining to the language, format, and placement of cigarette warnings on cigarette packages, advertising, and outdoor billboards based on smoking and health."

In applying preemption doctrine, the court then found that the board of health's regulation "restricts the location of the advertisements and does not impact the content of those advertisements as to the warning information." The court also found the "tombstone" requirements did not affect content. This interpretation was described as "consistent with" Penn Advertising, while Vango Media was distinguished as dealing with a local law that imposed a duty or condition on cigarette advertising, as opposed to merely limiting location and format.

In Missouri Retailers v. City of St. Louis, a U.S. district court in Missouri upheld a St. Louis ordinance that prohibited the placement of signs advertising tobacco products within 2,000 feet of a public park, daycare facility, community recreation center, or public or private school.

The court first reviewed the various opinions in Cipollone at length, agreeing with Rockwood, FAIR, Lindsey, and Chiglo on the point that Cipollone required no implied preemption analysis, but only an examination of the scope of the express language of Section 1334(b). Comparing the 1969 amendment's language to its 1965 predecessor, the court found that Section 1334(b) "definitely broadens the scope of preemption," and that Congress intended thereby "to preempt all State regulation of cigarette advertising as it relates to Œsmoking and health."

Applying Section 1334(b)'s language, the court readily found the ordinance to impose a "prohibition," then turned to the "with respect to" language and discussed Vango Media and Lindsey. Lindsey's conclusion that Section 1334(b) only reached state laws pertaining to "the language, format and placement of cigarette warnings" was summarily rejected and, ultimately (though with much more sympathy) so was Lindsey's "location" analysis.

Having found that the St. Louis "prohibition" was indeed "with respect to the advertising or promotion" of tobacco products, Judge Webber next asked: But is it "based on smoking and health"? He then devoted 12 pages to an analysis of the cases submitted by plaintiffs to sustain preemption, including Chiglo, Rockwood, and FAIR, and rejected their treatment of what "based on smoking and health" meant.

He stated that he "parted company with" Rockwood (which looked behind the ordinance and found that it and other state laws restricting youth access to tobacco products were bottomed on health concerns) and opined that Rockwood's reasoning is tantamount to concluding that "any promotion or advertising of tobacco products implicates health."

He concluded that "based on smoking and health" should be interpreted to mean that the state enactment "must require or prohibit advertising in a manner specifically related to smoking and health. An ordinance whose requirements or prohibitions bear no direct relationship to smoking and health is not Œbased on smoking and health."

The court said Penn Advertising was "persuasive authority" in this regard: "Thus Penn recognized, as does this court, that for an ordinance to be 'based on smoking and health,' it must do more than simply restrict the location of cigarette advertising but must impose a requirement or prohibitions specifically related to smoking and health."

Judge Webber found additional support for his analysis in the legislative history of the FCLAA which, he concluded, extends only "to health-related advertising."

So, clear lines have been drawn and basic questions raised and answered in diametrically opposing ways. Under federal preemption principles as applied to the FCLAA, does the intent or motive of the legislative body enter into the analysis? If so, does it make a difference if the intent or motive is expressed in the local law, or only in its legislative history, or not at all, if "health" underlies the legality of tobacco sales in some way?

Do geographic area restrictions on display of tobacco advertising, without more, constitute conditions that negatively impact such advertising in a way Congress meant to proscribe? To be preempted, must a local restriction impose a condition or relieve a burden based on smoking and health?

The next round of decisions and answers to such questions should emerge from the Second, Seventh, Eighth, and Ninth Circuits. If the district court experience is any measure, these appellate decisions will provide a conflict among the circuits that should prompt the Supreme Court to answer at least some of these questions.

While the authors believe Vango Media performed the preemption analysis correctly, we are not making any predictions about the eventual outcome. We are concerned that the "location only / not content" analysis has been all too frequently, and we think erroneously, carried over into the First Amendment issues raised by these challenges as a basis for finding no violation of commercial speech rights.