By John J. Wash
and Steven G. Brody

T he 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 Baltimore's 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

Two incompatible lines of decision have emrged since the Supreme Court's badly splintered 1992 decison in Cipollone v. Liggett Group.

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 "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.

Chiglo v. City of Preston, 909 F. Supp. 675 (D. Minn. 1995).