COURT STRIKES DOWN MASS. TOBACCO AD BAN

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WASHINGTON (AdAge.com) -- The U.S. Supreme Court today overturned a drastic set of advertising and point-of-sale restrictions placed on tobacco
Court: ads sell legal products to legal users.
products in Massachusetts, saying the state was preempted from acting against cigarettes by federal law.

The justices also ruled that the ad restrictions on cigars and smokeless tobacco amounted to a ban on advertising of a legal product to legal users.

'Onerous' ban
The state restrictions, which the court called "unduly broad" and "onerous," would have banned any advertising of tobacco products within 1,000 feet of a school or park viewable from outside a store, including any sign saying cigarettes were for sale. It also would have required point-of-sale displays to be 5 feet off the floor and limited the amount and imagery in the ads.

"These regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers," wrote Justice Sandra Day O'Connor, delivering the court opinion. "The breadth and scope of the regulations and the process by which the attorney general adopted the regulations do not demonstrate a careful calculation of the speech interests involved."

The court, however, upheld a requirement that stores put tobacco products behind counters or at least in places where store clerks have to get it.

Complicated ruling
The decision was extremely complicated. While the court was unanimous in some rulings, the court was splintered on issues of whether states are barred from regulating tobacco advertising, and on several First Amendment issues.

"You need a road map to follow" the justices' position, Justice O'Connor admitted in court today.

Trouble for ad groups
While advertising groups, which had filed friend of the court briefs, generally won in the case, the court ruled against them on one key argument that could come back to haunt them.

Advertising groups had argued that the Massachusetts Attorney General Thomas F. Reilly hadn't offered specific proof that advertising caused children to smoke or affected their rate of smoking. Mr. Reilly cited information gathered by the Food and Drug Administration for cigarettes.

The court today said Mr. Reilly's FDA proof was adequate.

"Our review ... reveals that the attorney general has provided ample documentation of the problem with underage use of smokeless tobacco and cigars," Justice O'Connor wrote. "In addition we disagree with petitioner's claims that there is no evidence that preventing targeted campaigns and limiting youth exposure to advertising will decrease underage use of smokeless tobacco and cigars."

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