Supreme Court to hear tobacco ad case

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The U.S. Supreme Court today set the stage for a second major ruling on advertising this year, deciding to take a Massachusetts case involving restrictions on tobacco marketing.

The high court's decision to take the case in which Massachusetts attorney general Thomas Reilly imposed a list of curbs on tobacco marketing wasn't a total surprise since courts in New York and California have ruled opposite to Massachusetts on whether federal law preempts state regulation of tobacco ads.

The surprise, said advertising lawyers, was the court didn't just restrict the case to the preemption issue but also agreed to hear arguments on First Amendment advertising issues and guidelines that traditionally have defined when the government can regulate advertising.

"They granted the entire petition so attorneys will have to address both issues,'' said Richard Samp, counsel for the Washington Legal Foundation, which filed a friend of the court brief in the case.

Advertising attorneys said that in the Food and Drug Administration case last year, the Supreme Court never got to the First Amendment questions.

Dan Jaffe, exec VP of the Association of National Advertisers, said the high court has up to now declined to take cases appealing preemption rulings, raising the possibility that the court took the Massachusetts case specifically to look at the First Amendment issues.

"This is a very significant case. Depending on how it is resolved, it goes to the broader issues of what kind of protections you can provide kids, when advertising is directed to adults," he said. "It's a very complicated case that could have significant impacts outside the tobacco area."

Mr. Samp said the court agreed to hear arguments about whether commercial speech should get additional protection.

In the Massachusetts case, state attorney general Reilly in early 1999 promulgated a series of regulations restricting marketing of tobacco products in an effort to protect minors. The rules barred give-aways; limited outdoor ads within 1,000 feet of a park, playground or school; required all point-of-purchase ads to be at least 5 feet high, if within 1,000 feet of a school or playground; and required mandatory warnings in advertising.

The Supreme Court earlier decided to take another advertising case in which some farmers and growers are contending that industry programs like those that support milk, pork, cotton and mushrooms, financed through an assessment by growers, violate their First Amendment rights.

Copyright January 2001, Crain Communications Inc.

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