"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 unaccompanied by color, opinion, artwork, or logos, 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's statement that Section 1334(b)Ős 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, Federation, 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 'smoking 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 Federation, 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 'based 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