New York announced a proposal last week to limit outdoor tobacco ads, and Los Angeles and Seattle are considering such curbs.
The Campaign for Tobacco-Free Kids said it is encouraging similar tobacco ad measures in other cities, while the Center for Science in the Public Interest said it's encouraging alcoholic beverage restrictions.
Peter Fisher, manager of state issues for the Campaign for Tobacco-Free Kids, said his group is "helping people, giving them advice on how to put it together."
MORE THAN $200 MIL ENDANGERED
At stake is more than $200 million in ad spending. Last year, $157.5 million of outdoor's revenue came from tobacco advertising and $69 million from alcohol advertising, according to Competitive Media Reporting.
Ad groups and marketers decry the curbs, saying the Supreme Court's decision not to hear the Baltimore case didn't mean the court believes curbs on outdoor ads are legal, merely that the high court hadn't chosen to yet take a case.
They warned that cities enacting restrictions risk high legal fees defending them.
"Baltimore was never required to prove that advertising restrictions prevent minors from smoking and drinking, and its restriction is not a total ban as some of these other cities are now proposing," said Kippy Burns, VP-communications for the Outdoor Advertising Association of America. "As a practical matter, a lot of what these cities are proposing is going to cost a lot of money."
"When there is an agreement being negotiated [on tobacco], why not wait for the agreement?" she asked.
The Supreme Court's short, one-paragraph order on April 28 simply said the court would not take the Baltimore case; there was no explanation of why the court decided not to re-examine the two ordinances restricting alcoholic beverage and tobacco boards.
NO VIEWPOINT INDICATED
Attorneys on both sides of the case said the high court commonly waits to have several similar cases and a decision not to take a case doesn't indicate any court viewpoint.
Still, ad groups and marketers admitted the decision was a major disappointment and surprise.
"They have left a confused situation," said Eric Rubin, the attorney for Baltimore outdoor company Penn Advertising, which had challenged the ordinances.
Under the 1994 ordinances, Baltimore limited outdoor boards advertising such products to industrial areas, downtown business areas, along major highways and at Camden Yards baseball park, as well as buses and taxis.
The restrictions were challenged by Penn (for tobacco) and Anheuser-Busch (for alcoholic beverages), with ad groups participating as friends of the court.
A-B and Penn had charged the lower court wrongly accepted the Baltimore City Council's statement that it was trying to lower underage smoking and drinking as sufficient reason for the regulations without ever requiring the city to show the advertising was increasing the problem or that removing the boards would lessen it. They also said the restrictions were an unconstitutional curb on free speech.
DISAPPOINTING FOR AD GROUPS
The decision against taking the case was especially disappointing to ad groups because, just a year ago, the court set aside the same restrictions.
Shortly after overturning Rhode Island's ban on alcoholic beverage pricing ads in the 44 Liquormart case, the high court vacated the earlier 4th U.S. Circuit Court of Appeals decision upholding Baltimore's curbs and told the appellate court to re-examine them in light of the 44 Liquormart ruling.
When the 4th Circuit again upheld the curbs, ad groups, A-B and Penn argued the appellate court had misread the 44 Liquormart decision.
The action-or inaction-last week "is not a license for governments to trample free speech rights or permission to restrict advertising without meeting rigorous standards," said Stephen Lambright, VP-group executive at A-B.
REVIEWING FDA RULING
The 4th Circuit in Richmond, Va., also will be reviewing the recent decision of a U.S. District judge in Greensboro, N.C., in the tobacco and ad industry's challenge of Food & Drug Administration tobacco rules, said George Hacker, manager of alcohol issues at the Center for Science in the Public Interest.
"It shoots a huge hole through the industry argument that 44 Liquormart controls alcohol advertising," Mr. Hacker said. "If billboard advertising were such an egregious affront to plurality opinion in 44 Liquormart, the [high] court would have agreed to hear it.
"The fact is, what it shows is where you use zoning power to protect children in narrowly tailored ways, the court will uphold restriction," he said.