Preemption. Several cases in which advertisers or retailers challenged the plethora of local ordinances restricting outdoor tobacco advertising were, at least in part, decided under federal preemption analysis.
Some of the tobacco billboard cases also tested the local ordinance under the Central Hudson test, again with inconsistent results:
Lindsey v. Tacoma-Pierce County Health Department. A federal district court in Tacoma upheld a total ban on outdoor tobacco advertising. The court rejected retailer plaintiffs' preemption argument and held that the Central Hudson test was met without the need for evidence, because it could simply be presumed under Part 3 that less advertising would certainly reduce illegal underage sales.
The court also held under Part 4 that the total ban "falls within the range allowed by the First Amendment," citing the Baltimore billboard cases. Lindsey is on appeal to the Ninth Circuit.
Rockwood v. City of Burlington. The court first held that the tobacco billboard restrictions in Burlington, Vt., were preempted by federal law. It continued to hold that the ordinance did not meet Central Hudson, based on a Part 4 analysis that it was more extensive than necessary, citing 44 Liquormart and noting that a clear majority of Supreme Court justices supports an enhanced Part 4 test, requiring the election of obvious non-speech alternatives - here such as "stepped-up law enforcement efforts and public education programs."
Missouri Retailers Association v. City of St. Louis. In contrast, a federal district court in St. Louis upheld that city's restriction on billboard advertising of tobacco products, rejecting both the preemption and First Amendment arguments of the plaintiffs.
As for the latter, the court purported to distinguish 44 Liquormart, holding that the local law was simply a regulation of location and not a "blanket ban" and thus not governed by 44. As usual in all of the cases upholding restrictions on billboard advertising, the district court relied heavily on the Fourth Circuit's decisions in Penn Advertising and Schmoke.
The past year also brought mixed developments in challenges to state and local laws restricting alcohol beverage advertising.
