In Federation of Advertising Industry Representatives (FAIR) v. City of Chicago, the district court ruled that ChicagoÕs ordinance imposed "substantial prohibitions on the advertising ofÊ... 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 Burlington's 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 legislatureÕs 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 advertisersÊ... because it imposes conditions on their display of cigarette advertisements." She found Penn Advertising's reasoning