In a 31-page decision on a case brought by convenience-store owners, Judge William K. Sessions last week voided most of Burlington's ordinance barring point-of-purchase materials and limiting stores to two 8 inch-by-14-inch b&w signs for tobacco products, which couldn't be displayed outside by stores within 1,000 feet of any school.
FEDERAL LAW PRE-EMINENT
As a U.S. District judge in Chicago had ruled in a case against that city's tobacco ad curbs, Judge Sessions ruled that federal law preempted Burlington from regulating cigarette advertising. He also said that while Burlington had presented evidence ad restrictions might have an effect on curbing underage smoking, the city had failed to show that would definitely be effective or that its law was narrowly tailored.
"The impact of tobacco advertising on young people's decisions to smoke is passionately debated," the judge said. He added the city had failed to prove "less intrusive alternatives" to restricting speech, such as increased law enforcement or public education programs, wouldn't prove as effective.
Amy Sylvester, attorney for the convenience stores, said she was "ecstatic" about the decision and especially "surprised" and pleased the judge ruled on the constitutionality issues.
BURLINGTON CASE DIFFERENT
But she said Burlington's case was somewhat different than earlier cases involving outdoor boards. The state of Vermont already prohibits outdoor boards.
City officials did not return calls for comment by press time.
Ad groups said the ruling in Vermont is another reason that the Supreme Court needs to wrestle again with the issue of commercial speech and the First Amendment.
"When the law depends on where you live, that's the classic definition of when the Supreme Court needs to act," said Dan Jaffe, exec VP of the Association of National Advertisers. "The Supreme Court is being faced with the situation where you have to resolve this once and for all."