Regulating Tobacco Product Advertising and Promotions in the Retail Environment: A Roadmap for States and Localities

U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, Preventing Tobacco Use among Youth and Young Adults: A Report of the Surgeon General (2012).

Federal Trade Commission, Federal Trade Commission Cigarette Report for 2012 (2015).

Perry C. L. , “The Tobacco Industry and Underage Youth Smoking: Tobacco Industry Documents from the Minnesota Litigation,” Archives of Pediatrics & Adolescent Medicine 153, no. 9 (1999): 935–941; Gilpin E. A. Pierce J.P. , “A Historical Analysis of Tobacco Marketing and the Uptake of Smoking by Youth in the United States: 1800–1977,” Health Psychology 14, no. 6 (1995): 500–508; Henriksen L. Feighery E. C. Schleicher N. C. Haladjian H. H. Fortmann S. P. , “Reaching Youth at the Point of Sale: Cigarette Marketing Is More Prevalent in Stores Where Adolescents Shop Frequently,” Tobacco Control 13, no. 3 (2004): 315–318.

Robertson L. McGee R. Marsh L. Hoek J. , “A Systematic Review on the Impact of Point-of-Sale Tobacco Promotion on Smoking,” Nicotine & Tobacco Research 17, no. 1 (2014): 2–17; Levy D. T. Lindblom E. N. Fleischer N. L. Thrasher J. Mohlman M. K. Zhang Y. Monshouwer K. Nagelhout G. E. , “Public Health Effects of Restricting Retail Tobacco Product Displays and Ads,” Tobacco Regulatory Science 1, no. 1 (2015): 61–75; Sanders-Jackson A. Parikh N. M. Schleicher N. C. Fortmann S. P. Henriksen L. , “Convenience Store Visits by US Adolescents: Rationale for Healthier Retail Environments,” Health & Place 34 (2015): 63–66; Henriksen L. Schleicher N. C. Feighery E. C. Fortmann S. P. , “A Longitudinal Study of Exposure to Retail Cigarette Advertising and Smoking Initiation,” Pediatrics 126, no. 2 (2010): 232–238; National Cancer Institute, “The Role of the Media in Promoting and Reducing Tobacco Use,” Tobacco Control Monograph , no. 19 (2008): 280–281 (concluding that the evidence base both shows that “exposure to cigarette advertising influences nonsmoking adolescents to initiate smoking and to move toward regular smoking” and, more generally, “demonstrates a causal relationship between tobacco advertising and promotion and increased tobacco use”).

See U.S. Department of Health and Human Services, supra note 1, at 9 (“among adults who become daily smokers, nearly all first use of cigarettes occurs by 18 years of age (88%), with 99% of first use by 26 years of age”); see also Food & Drug Admin. v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 127–28 (2000) (citing FDA findings and conclusion).

See U.S. Department of Health and Human Services, supra note 1.

U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health, Health Consequences of Smoking (2014).

We use “youth” to refer to those below the legal age for smoking in a given jurisdiction.

U.S. Department of Health and Human Services, Public Health Service, Office of the Surgeon General, The Health Consequences of Smoking-50 Years of Progress: A Report of the Surgeon General (2014); see U.S. Department of Health and Human Services, supra note 1.

Centers for Disease Control and Prevention, “Tobacco Product Use among Middle and High School Students – United States, 2011 and 2012,” Morbidity and Mortality Weekly Report 62, no. 45 (2013): 893–897; see also “Tobacco Use Among Middle and High School Students – United States, 2011–2014,” Morbidity and Mortality Weekly 64, no. 14 (April 17, 2015): 381–385, available at <http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6414a3.htm?s_cid=mm6414a3_e>). At the time of this article, the Food and Drug Administration (FDA) had proposed a rule, still pending, to include electronic cigarettes, and also cigars, among others, as “tobacco products” regulated under federal law along with traditional cigarettes and smokeless tobacco, among others. Deeming Tobacco Products To Be Subject to the Federal Food, Drug and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act; Regulations on the Sale and Distribution of Tobacco Products and Required Warning Statements for Tobacco Products, 79 Fed. Reg. 23142 (proposed April 25, 2014) (to be codified at 21 C.F.R. pts. 1100, 1140, and 1143).

See U.S. Department of Health and Human Services, supra note 1.

See supra note 4.

This article updates and provides in-depth analysis of the legal issues referenced in several recent guides to point-of-sale tobacco regulation. See Laird-Metke E. P. , Tobacco Control Legal Consortium, Regulating Tobacco Marketing: “Commercial Speech” Guidelines for State and Local Governments (2010) (analyzing preemption and First Amendment hurdles to regulation of tobacco advertising); Laird-Metke E. P. , Tobacco Control Legal Consortium, Regulating Tobacco Marketing: A “Commercial Speech” Factsheet for State and Local Governments (2010) (analyzing point-of-sale strategies and different First Amendment tests for various types of regulation); Center for Public Health Systems Science, Point-of-Sale Strategies: A Tobacco Control Guide (2014), Center for Public Health Systems Science, George Warren Brown School of Social Work at Washington University in St. Louis and the Tobacco Control Legal Consortium (ranking point-of-sale interventions by risk of legal challenge).

See, e.g., Hoefges M. Rivera-Sanchez M. , “‘Vice’ Advertising under the Supreme Court's Commercial Speech Doctrine: The Shifting Central Hudson Analysis,” Hastings Communications and Entertainment Law Journal 22, nos. 3/4 (2000): 350–389; Hoefges M. , “Protecting Tobacco Advertising under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co,.” Communication Law and Policy 8, no. 3 (2003): 267–311.

Sorrell v. IMS Health, Inc. , 131 S.Ct. 2653, 2663–64, 2667 (2011).

Although not in a commercial speech case, the Supreme Court recently cited Sorrell stating “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 135 S.Ct. 2218, 2227 (2015) (citing, e.g., Sorrell, 131 S.Ct. at 2663–64; Carey v. Brown, 447 U.S. 455, 462 (1980); Police Dep't of Chi. v. Mosley, 408 U.S. 92 (1972)). The Court further said “[t]his commonsense meaning of the phrase ‘content-based’ requires a court to consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” Id. (citing Sorrell, 131 S.Ct. at 2664).

15 U.S.C. § 1334(b) (2012) (“No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.”).

15 U.S.C. § 1334(c) (2012) (“Notwithstanding subsection (b), a State or locality may enact statutes and promulgate regulations, based on smoking and health, that take effect after the effective date of the Family Smoking Prevention and Tobacco Control Act, imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes.”).

15 U.S.C. § 4406(b) (2012) (“No statement relating to the use of smokeless tobacco products and health [other than federally-mandated statements] shall be required by any State or local statute or regulation to be included on any package or in any advertisement (unless the advertisement is an outdoor billboard advertisement) of a smokeless tobacco product.”). This provision applies to smokeless tobacco packages in addition to advertisements. Id. The preemption provision in CSTHEA is narrower than the FCLAA preemption provision. Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 77 (1997) (comparing the “with respect to” language in FCLAA to the clauses “on any package” and “in any advertisement” in CSTHEA).

See, e.g., Graham v. R.J. Reynolds Tobacco Co. , 782 F.3d 1261, 1282, 1284 (11th Cir. 2015) (holding scope of CSTHEA's express preemption provision was immaterial because “a saving clause…does not bar the ordinary working of conflict preemption principles” and plaintiff's tort claims were preempted by federal law in light of “Congress's clear purpose and objective of regulating – not banning – cigarettes”); CTIA – The Wireless Ass'n v. City of Berkeley, 2015 WL 5569072, *6–7 (N.D. Cal. 2015) (discussing standard and rejecting application of conflict preemption).

Courts try to avoid deciding constitutional questions, so if they determine that a state or local regulation of tobacco advertising is preempted, they may not address First Amendment issues. See, e.g., Lorillard Tobacco Co. v. Reilly , 533 U.S. 525, 540–53 (2001).

Although there is a great deal of contemporary debate about the appropriate regulatory classification of e-cigarettes, their classification is immaterial for purposes of the First Amendment analysis, and, to date, neither the Food, Drug, and Cosmetic Act (FDCA), as amended by the 2009 Family Smoking Prevention and Tobacco Control Act (FSPTCA), nor the Federal Cigarette Labeling and Advertising Act (FCLAA) applies to e-cigarettes. Generally, see Lindblom E. N. , “Effectively Regulating E-Cigarettes and Their Advertising – and the First Amendment,” Food and Drug Law Journal 70, no. 1 (2015); Lempert L. K. Grana R. Glantz S. A. , “The Importance of Product Definitions in US E-cigarette Laws and Regulations.” Tobacco Control (epub 2014) (available at <http://www.ncbi.nlm.nih.gov/pubmed/25512432> (last visited December 15, 2015)). See also supra note 8 (discussing pending FDA rulemaking).

See supra note 4.

United States v. O'Brien, 391 U.S. 367, 377 (1968).

See Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d 71, 77–78 (1st Cir. 2013); Nat'l Ass'n of Tobacco Outlets, Inc. v. City of N.Y., 27 F. Supp. 3d 415, 421–24 (S.D.N.Y. 2014).

See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 553, 556–67 (2005) (plurality opinion); U.S. Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 133 S. Ct. 2321, 2328 (2013) (holding government may restrict speech of its grantees within the scope of government-funded work but may not impose “conditions that seek to leverage funding to regulate speech outside the contours of the program itself”); Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) (holding state denial of Confederate flag design for specialty license plate program was permissible because selection of designs was government speech).

Zauderer v. Office of Disciplinary Counsel of the Supreme Ct. of Ohio, 471 U.S. 626, 651 (1985) (upholding required disclosure because it was “purely factual and uncontroversial” and reasonably related to preventing consumer deception in attorney advertising); see also Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249–50 (2010) (applying Zauderer and upholding required disclosure because it was an “accurate statement” of factual information reasonably related to preventing consumer deception in attorney advertising, but not addressing or mentioning whether the statement was “uncontroversial”). Lower courts and commentators have differed on the exact constitutional requirements under Zauderer, a full discussion of which is beyond the scope of this article, but until the Supreme Court decides another case, state and local regulations that require advertisers to include “factual and uncontroversial” information that is “reasonably related” to preventing consumers from being deceived by their ads are likely to be upheld under Zauderer's rational basis review. See Am. Meat Inst. v. U.S. Dept. of Agric., 760 F.3d. 18, 21, 22–23 (D.C. Cir. 2014) (stating as a “starting point” that “Zauderer applies to government mandates requiring disclosure of ‘purely factual and uncontroversial information’ appropriate to prevent deception in the regulated party's commercial speech,” but also recognizing that Zauderer can apply to other asserted government interests); Keighly J. M. , “Can You Handle the Truth? Compelled Commercial Speech and the First Amendment,” University of Pennsylvania Journal of Constitutional Law 15, no. 2 (2012): 539–616, at 568 (“Commercial disclosures must provide ‘purely factual and uncontroversial information to be subject to Zauderer's rational basis test.’).

Although the Supreme Court has not yet applied Zauderer to compelled commercial disclosures when the government interest is something other than preventing consumer deception, several federal circuit courts of appeals have done so including, recently, the federal D.C. Circuit Court of Appeals. See Am. Meat Inst., 760 F.3d at 22–23; N.Y. State Rest. Ass'n v. N.Y.C. Bd. of Health, 556 F.3d 114, 133 (2d Cir. 2009); Pharm. Care Mgmt. Ass'n v. Rowe, 429 F.3d 294, 309–310, 310 n.8 (1st Cir. 2005) (Torruella, J.), id., at 316 (Boudin, C.J. & Dyk J. , concurring), id., at 297–298 (per curiam) (noting concurring opinion controls on First Amendment disclosure issue); Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 113–15 (2d Cir. 2001). The Sixth Circuit applied Zauderer and upheld the FSPTCA's disclosure requirements for cigarette advertisements and packages, recognizing government interests in “preventing consumer deception” and promoting better public understanding of the risks of smoking. Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 562, 565–66, 569, (6th Cir. 2012), cert. denied sub nom, Am. Snuff Co., LLC v. United States, 133 S.Ct. 1996 (2013); id., at 556 ( Stranch J. , writing for the majority on the disclosure issue and stating “Zauderer's framework can apply even if the disclosure's purpose is something other than or in addition to preventing consumer deception”). Commentators have taken various positions on this issue, a full discussion of which is beyond the scope of this article, but there is support for this broader interpretation of Zauderer. See, e.g., Post R. , “Compelled Commercial Speech,” West Virginia Law Review 117, no. 3 (2015): 867–919, at 882.

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n , 447 U.S. 557, 566 (1980).

Lorillard, 533 U.S. at 567–571.

O'Brien, 391 U.S. at 376. To comport with the First Amendment, a regulation of expressive conduct must be within the government's constitutional power and supported by an important government interest unrelated to curbing free expression, and any incidental impact on expression must be “essential” to serve the asserted interest in regulating the conduct. Id.

Lorillard, 533 U.S. at 569–71.

Id., at 569–570 (“Moreover, retailers have other means of exercising any cognizable speech interest in the presentation of their products. We presume that vendors may place empty tobacco packaging on open display, and display actual tobacco products so long as that display is only accessible to sales personnel.”).

Providence R.I. , City Code of Ordinances § 14–303 (2012); N.Y.C., Admin. Code §§ 17–176.1(b), (c) (2013).

Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d at 78 (“[T]he regulation of prices, without more, does not rise to the level of regulation of ‘inherently expressive conduct’ subject to O'Brien scrutiny.”); Nat'l Ass'n of Tobacco Outlets, Inc. v. City of N.Y., 27 F.Supp.3d at 422 (“The ordinance only regulates an economic transaction – the sale of tobacco products below the listed price. It does not restrict the dissemination of pricing information and thus, it does not violate the First Amendment.”). In a recent case involving a challenge to a New York state statute that prohibits sellers from charging consumers a “swipe fee” for using credit cards for commercial transactions, the Second Circuit relied on City of Providence and cited City of New York approvingly in support of its holding that the limitation on pricing mechanisms did not regulate either speech or expressive conduct under the First Amendment. Expressions Hair Design v. Schneiderman, 803 F.3d 94, 106–11 (2d Cir. 2015) (“although the Supreme Court has now repeatedly held that the advertising of lawful prices is protected by the First Amendment [], it has reaffirmed in doing so that states may continue to make certain prices un lawful through ‘direct regulation”’) (citations omitted).

Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d at 76–77 (“Nothing in the Price Ordinance restricts retailers or anyone else from communicating pricing information concerning the lawful sale price of cigarettes.”); Nat'l Tobacco Outlets, Inc. v. City of N.Y., 27 F.Supp.3d at 421–23 (stating “tobacco manufacturers and retailers have an undisputed First Amendment right to advertise the listed price of their products to their consumers,” but concluding the city ordinance provisions “regulating the sale of cigarettes and tobacco products below the listed price” does not restrict speech).

See, e.g., Luke D. Ribisl K. Smith C. Sorg A. , “Family Smoking Prevention and Tobacco Control Act: Banning Outdoor Tobacco Advertising Near Schools and Playgrounds,” American Journal of Preventive Medicine 40, no. 3 (2011): 295–302.

See 21 U.S.C. § 387p; U.S. Smokeless Tobacco Mfg. Co. LLC v. City of N.Y., 708 F.3d 428, 434 (2d Cir. 2013) (upholding ordinance prohibiting sale of flavored tobacco products other than in a tobacco bar because statutory scheme “reserves regulation at the manufacturing stage exclusively to the federal government, but allows states and localities to continue to regulate sales and other consumer-related aspects of the industry in the absence of conflicting federal regulation”). Notably, the Second Circuit declined to consider whether a complete ban would be permissible, rejecting the contention that the ordinance operated as a complete ban because it permitted sale of flavored tobacco products only in tobacco bars, the City had only eight tobacco bars, and none of the existing tobacco bars sold flavored tobacco products. Id., at 435–36.

See Indeps. Gas & Serv. Stations Ass'ns, Inc. v. City of Chi., 2015 WL 4038743, at *1–5 (N.D. Ill. June 29, 2015).

See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009); Johanns, 544 U.S. at 562; Walker, 135 S. Ct. at 2245–46. So long as it is clear that the message is controlled by and attributable to the government, even imposing a special tax to fund dissemination of the government's message is permissible. See Johanns, 544 U.S. at 563–64 (rejecting claim that imposition of a special assessment on beef producers to fund the advertising campaign, “Beef. It's What's for Dinner,” violated the First Amendment by creating a perception that the advertisements spoke for all beef producers and holding statute and regulation at issue could not “be the cause of any possible First Amendment harm” because they did not “require attribution,” and there is no First Amendment right not to fund government speech). For an extensive discussion of this strategy of using taxes to fund counterspeech, see Silver D. Fenson-Hood K. , “More Speech, Not Enforced Silence: Tobacco Advertising Regulations, Counter-marketing Campaigns and the Government's Interest in Protecting Children's Health,” Berkeley Journal of Entertainment and Sports Law 1, no. 1 (2012): 1–36, at 31–36. Regardless of the funding mechanism, whether requiring retailers to post the government's messages is a permissible means of disseminating government speech or constitutes impermissible compulsion of private speech should turn on whether the ordinance or statute at issue affirmatively requires attribution of the message to the retailer. See Johanns , 544 U.S. at 564 (holding as-applied challenge would require evidence that individual advertisements were attributed to the plaintiffs).

N.Y.C. Health Code, § 181.19 (2009). As the code provisions required, the city health department produced three signs, each with a different warning statement and graphic image. The signs read: “Smoking Causes Lung Cancer,” over a photograph of an x-ray of a lung with cancer; “Smoking Causes Tooth Decay,” over a photograph of a decayed tooth; and “Smoking Causes Stroke” over a photograph of an MRI of a stroke-damaged brain. All three signs also included the statement “Quit Smoking Today – For Help, Call 311 or 1–866-NYQUITS.” 23–34 94th St. Grocery Corp. v. N.Y.C. Bd. of Health, 685 F.3d 174, 179 (2d Cir. 2012). The code provisions required a “small sign” under 144 square inches within three inches of cash registers where consumers pay for tobacco products and a “large sign” less than 576 square inches at tobacco product displays. Id., at 179, n. 4 and n. 5 (citing and quoting the Health Code provisions). The signs had to be “unobstructed in their entirety and easily read” by consumers considering and making tobacco purchases. Id., at 179. The product display signs had to be between four and seven feet from the floor. Id.

Defendants' brief in opposition to plaintiffs' motion for a preliminary injunction and in support of defendants' cross-motion for summary judgment, 23–34 94th St. Grocery, 685 F.3d 174.

Plaintiffs' joint memorandum of law in support of motion for a preliminary injunction, 23–34 94th St. Grocery, 685 F.3d 174. Generally, in a First Amendment case, strict scrutiny requires the government to demonstrate that its regulation of speech is necessary to serve a compelling government interest and is narrowly tailored to do so. See, e.g., Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991).

23–34 94th St. Grocery, 685 F.3d at 179–80, 185, 186 (stating despite preemption holding that “states and localities remain free to impose time, place, and manner restrictions on the advertising and promotion of cigarettes, and to engage in anti-smoking campaigns using their own resources” and the holding “should not be read to curtail in any way state and locally funded efforts to further educate consumers and counter cigarette advertising and promotion”).

CTIA – The Wireless Ass'n v. City of Berkeley, 2015 WL 5569072, *16–19 (N.D. Cal. 2015). The court noted the lack of “any [cited] appellate authority addressing the proper standard of First Amendment review where the government requires mandatory disclosure of government speech by a private party in the context of commercial speech.” Id. at *14. The court tested the ordinance under the “more rigorous rational basis review” than usually is applied to government regulations “[b] ecause there is an arguable First Amendment interest,” which “requires an examination of actual state interests and whether the challenged law actually furthers that interest rather than the traditional rational basis review which permits a law to be upheld if rationally related to any conceivable interest.” In addition, the court separately tested the ordinance under “the more specific Zauderer test” with its “predicate requirement… that compelled speech must be factual and uncontroversial.” Id. at *16, 17; compare CTIA – The Wireless Ass'n v. City and County of San Francisco, 494 Fed. Appx. 752, 753–754 (9th Cir. 2012) (not selected for publication) (holding fact sheet that cell phone retailers would be required to provide to customers could not be deemed “purely factual and uncontroversial” under Zauderer because “language [in the sheet] could prove to be interpreted by consumers as expressing San Francisco's opinion that using cell phones is dangerous” when “[t]he FCC, however, has established limits of radiofrequency energy exposure, within which it has concluded using cell phones is safe”)….

See Walker , 135 S. Ct. at 2246.

Zauderer, 471 U.S. at 651; see also Milavetz , 559 U.S. at 249–50. The Zauderer Court stated in dicta that “unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech” but explicitly held “that an advertiser's rights are adequately protected as long as the disclosure requirements are reasonably related to the [government's] interest in preventing deception of consumers.” Zauderer, 471 U.S. at 651. See supra note 28.

Zauderer, 471 U.S. at 651; Ibanez v. Fla. Dep't of Bus. and Prof 'l Regulation, Bd. of Accountancy, 512 U.S. 136, 146–47 (1994) (relying on Zauderer); Milavetz, 559 U.S. at 250 (relying on Zauderer).

See supra note 28 discussing that case and ruling.

See Zauderer , 471 U.S. at 651 (“Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of information such speech provides, [a commercial speaker's] constitutionally protected interest in not providing any particular factual information in his advertising is minimal.”) (internal citation omitted). See also Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976) (“As to the particular consumer's interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day's most urgent political debate.”)

Compare Disc. Tobacco City, 674 F.3d at 521, 554 ( Stranch J. , writing for majority in this section of the opinion, stating that commercial speech disclosures are subject either to rational basis review under Zauderer or, if not, strict scrutiny); with R.J. Reynolds Tobacco Co. v. Food & Drug Admin., 696 F.3d 1205, 1217 (D.C. Cir. 2012) (finding FDA's required graphic warning labels for cigarette packages and advertisements were subject to intermediate scrutiny under Central Hudson because rational basis review under Zauderer did not apply), partly overruled on other grounds by Am. Meat Inst. v. U.S. Dep't of Agric., 760 F.3d 18, 22–23 (D.C. Cir. 2014). In a subsequent case, the D.C. Circuit concluded that “relaxed review” under Zauderer applies only to “[voluntary commercial] advertising or product labeling at the point of sale.” Nat'l Ass'n of Mnfrs. v. SEC, 800 F.3d 518, 520, 522–24, 524–30 (D.C. Cir. 2015).

Cent. Hudson, 447 U.S. 557.

Id., at 566.

Va. State Bd., 425 U.S. at 771–72.

Nat'l Ass'n of Tobacco Outlets, Inc.v. City of Providence, 731 F.3d at 78; Nat'l Ass'n of Tobacco Outlets, Inc. v. City of N.Y., 27 F. Supp. 3d at 423–24 (relying on the rationale of the First Circuit in City of Providence).

See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 527 (1992) (“‘To avoid giving a false impression that smoking [is] innocuous, the cigarette manufacturer who represents the alleged pleasures or satisfaction of cigarette smoking in his advertising also must disclose the serious risks to life that smoking involves.”’) (quoting with approval the Federal Trade Commission from a 1964 trade regulation rule promulgation) (citation omitted); Disc. Tobacco City, 674 F.3d at 562 (“[A]dvertising promoting smoking deceives consumers if it does not warn consumers about tobacco's serious health risks.”).

Some academics have proposed new arguments based on the misleading effects of manipulative marketing, see Berman M. L. , “Manipulative Marketing and the First Amendment,” Georgetown Law Journal 103, no. 3 (2014): 497–546, at 515 (discussing “the wide gap between the Supreme Court's information-focused conception of advertising and the reality that most advertising employs noninformational methods of persuasion”). Given the developing evidence of the connection between youth exposure to advertising and initiation and use, it also may now be possible to show that tobacco advertising is misleading because it fails to disclose the substantial risks of tobacco use that are specific to youth and young adults. But see Brown & Williamson Tobacco Corp. v. Food & Drug Admin., 153 F.3d 155, 166 (4th Cir. 1998) (holding FDA was constrained to find warnings mandated by other federal statutes were sufficient to address youth-specific risks because applicable statutes at the time did not permit federal agencies to add to or modify the congressionally-mandated warnings), aff'd sub nom., Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). Under the Federal Food, Drug, and Cosmetic Act (FDCA), as amended by Congress in the 2009 FSPTCA, tobacco products are considered misbranded if their labeling or advertising is false or misleading. 21 U.S.C. § 387c(a)(1), (a)(7)(A) (2012).

See Lorillard, 533 U.S. at 555, 569 (noting there was no dispute regarding the “importance of the State's interest in preventing the use of tobacco products by minors” for purposes of the Central Hudson analysis of outdoor and point-of-sale advertising restrictions and that “the State has demonstrated a substantial interest in preventing access to tobacco products by minors” for purposes of the O'Brien analysis of restrictions on placement of tobacco products); Brown & Williamson Tobacco Corp. 529 U.S. at 161 (“tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States”).

R.J. Reynolds Tobacco, 696 F.3d at 1221. According to the majority, this interest merely described the means by which the government sought to advance its underlying interest in reducing smoking and was not a separately asserted justification in its own right. Given the Supreme Court's focus in Lorillard on “the relationship between the harm that underlies the State's interest and the means identified by the State to advance that interest,” Lorillard, 533 U.S. at 555 (emphasis added), the dissent in R.J. Reynolds seems more persuasive on this point.

R.J. Reynolds Tobacco, 696 F.3d at 1221.

Id., at 1217–19. The R.J. Reynolds court refused to apply the more lenient Zauderer test because it concluded the FDA's required color graphic warnings were not “factual and uncontroversial” under Zauderer or “accurate statement[s]” under Milavetz, and that Zauderer only applied when the government goal was to prevent consumer deception, which the court found the FDA had not demonstrated. Id. at 1216 (internal citations omitted). In a more recent case, the D.C. Circuit, sitting en banc, overruled the R.J. Reynolds decision to the extent it held that Zauderer applies only when the goal is preventing consumer deception. Am. Meat Inst., 760 F.3d at 22–23. Moreover, another federal appeals court, the U.S. Sixth Circuit, had found already that the provisions in the FSPTCA generally requiring color graphic warning labels depicting the health risks of smoking for cigarette advertising and packaging are constitutional on their face under Zauderer as a means of preventing consumer deception and fully informing consumers about the health risks of smoking. Disc. Tobacco City, 674 F.3d at 562–69. That court, however, did not address the constitutionality of the specific warnings enacted by the FDA, and the Supreme Court declined to review the decision. Id. Thus, the FDA still retains jurisdiction to draft new graphic warning labels under the FSPTCA.

Edenfield v. Fane, 507 U.S. 761, 770–71 (1993) (emphasis added).

See id.

R.J. Reynolds Tobacco, 696 F.3d at 1220.

Id., at 1221.

See Lorillard , 533 U.S. at 556, 558, 560, 561 (acknowledging that “product advertising stimulates demand for products, while suppressed advertising may have the opposite effect”; finding that “the record reveals that the [government] has provided ample documentation of the problem with underage use of smokeless tobacco and cigars”; refuting “that there is no evidence that preventing targeted campaigns and limiting youth exposure to advertising will decrease underage use of smokeless tobacco and cigars”; and concluding that “[o]n this record and in the posture of summary judgment, [the government's] decision to regulate advertising of smokeless tobacco and cigars in an effort to combat the use of tobacco products by minors was [not] based on mere ‘speculation [and] conjecture.”’).

Bd. of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989).

Thompson v. W. States Med. Ctr., 535 U.S. 357, 371, 373 (2002).

Cf. Hill v. Colorado, 530 U.S. 703, 776 (2000) (Kennedy, J., dissenting) (contending that fit cannot be satisfied by censoring more speech to make a statute aimed at suppressing anti-abortion speech appear to be content-neutral).

Lorillard, 533 U.S. at 556 (applying the Central Hudson test) (citation omitted); see also Sorrell, 131 S.Ct. at 2669 (“Rules that burden protected expression may not be sustained when the options provided by the [government] are too narrow to advance legitimate interests or too broad to protect speech.”)

Lorillard, 533 U.S. at 534–536 (citation to regulations omitted).

Id., at 555.

Id., at 561 (quoting Edenfield, 507 U.S. at 770).

Id., at 562–63 (concluding “The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring.”).

Id., at 563.

Id., at 566, 567 (“Massachusetts may wish to target tobacco advertisements and displays that entice children, much like floor-level candy displays in convenience stores, but the blanket height restriction does not constitute a reasonable fit with [the state's regulatory] goal.”)

See, e.g., Flying Dog Brewery, LLLP v. Mich. Liquor Control Comm'n, 597 F. App'x 342, 355 (6th Cir. 2015) (remanding to allow district court to resolve in the first instance all “disputes of fact impacting the Central Hudson analysis”); id., at 365 (Moore, J., dissenting) (concluding denial of registration label for “Raging Bitch” beer violated First Amendment based on undisputed facts and Central Hudson should apply because, “although Sorrell stated that ‘heightened judicial scrutiny’ applied, it reaffirmed the use of the Central Hudson test and simply acknowledged the reality that content-based speech regulation will rarely satisfy the test”); 1-800-411-Pain Referral Serv., LLC v. Otto, 744 F.3d 1045, 1055–57 (8th Cir. 2014) (concluding as a result of Supreme Court's failure to define “heightened scrutiny” in Sorrell that “[t]he upshot is that when a court determines commercial speech restrictions are content- or speaker-based, it should then assess their constitutionality under Central Hudson,” but finding inherently misleading speech was subject to regulation in any event); King v. Gen. Info. Servs., Inc., 903 F. Supp. 2d 303, 308 (E.D. Pa. 2012) (concluding Sorrell “stopped far short of overhauling nearly three decades of precedent” and “typical commercial speech inquiry under intermediate scrutiny remains valid law”); cf. Beeman v. Anthem Prescription Mgmt., LLC, 353, 315 P.3d 71, 87 (2013) (stating “the high court has consistently applied intermediate scrutiny to prohibitions on such speech used for marketing or advertising” and explaining rationale for “heightened scrutiny of laws restricting commercial speech,” as compared to rational basis review for compelled disclosures, include “free flow of commercial information”, “the informational function of advertising” and “consumer choice”) (citations omitted); see also O. Shik, Note, “The Central Hudson Zombie: For Better or Worse, Intermediate Tier Review Survives Sorrell v. IMS Health,” Fordham Intellectual Property, Media and Entertainment Law Journal 25, no. 2 (2015): 562–588 (summarizing court decisions and commentary; Thompson H. B. , “Whither Central Hudson? Commercial Speech in the Wake of Sorrell v. IMS Health,” Columbia Journal of Law & Social Problems 47, no. 2 (2013): 171–207 (summarizing cases and commentary).

Sorrell, 131 S.Ct. at 2670–72.

Id., at 2663–2665.

Id., at 2667–2672.

See Retail Digital Network, LLC v. Appelsmith, 945 F. Supp. 2d 1119, 1125 (C.D. Cal. 2013) (granting summary judgment for defendant and rejecting argument that Sorrell amended Central Hudson test in part because courts must continue to apply established law unless intervening authority from a higher court is “‘clearly irreconcilable”’) (citing Actmedia Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003)), appeal filed (June 19, 2013); Demarest v. City of Leavenworth, 876 F. Supp. 2d 1186, 1194–96 (E.D. Wash. 2012) (granting summary judgment for defendant on challenge to sign ordinance and explaining that although “Sorrell is a significant opinion, it did not overturn the long line of Supreme Court precedent based upon Central Hudson,” but also concluding ordinance was not a content-based restriction).

See United States v. Caronia, 703 F.3d 149 (2d Cir. 2012) (finding the provisions at issue were content- and speaker-based and therefore subject to heightened scrutiny under Sorrell but ultimately holding under Central Hudson that the government could not constitutionally criminalize truthful promotion of off-label uses of FDA-approved drugs by pharmaceutical companies and their agents); see also Educ. Media Co. at Va. Tech, Inc. v. Insley, 731 F.3d 291, 297–302 (4th Cir. 2013) (striking down state restrictions on alcohol advertising in college publications aimed at combatting underage drinking without needing to decide if “heightened scrutiny” under Sorrell applied because the restrictions failed the less demanding Central Hudson test, but noting however, that to the extent the regulation prevented “dissemination of alcohol advertisements to readers age 21 or older does exactly what Sorrell prohibits: It attempts to keep would-be drinkers in the dark based on what the [state] perceives to be their own good”); Valle Del Sol Inc., v. Whiting, 709 F.3d 808, 828 (9th Cir. 2013) (striking down state efforts to promote traffic safety by restricting certain day labor soliciting activities under the pre-Sorrell version of Central Hudson, despite finding them to be “content-based restrictions designed to suppress the economic activity of undocumented immigrants,” because the provisions did not pass muster under Central Hudson and finding it unnecessary to reach the issue of whether Sorrell made the fourth Central Hudson prong more demanding as was argued); See Shik , supra note 77, at 580–81; Thompson, supra note 77, at 193 (discussing the Caronia case).

R.J. Reynolds Tobacco, 696 F.3d at 1222; see also id., at 1226 n. 4 (Rogers, J., dissenting) (“Notwithstanding any intimations it may have made in cases such as Sorrell v. IMS Health Inc.,… the Supreme Court has continued to apply the more deferential framework of Central Hudson to commercial speech restrictions.”).

Disc. Tobacco City, 674 F.3d at 548. The court cited Sorrell for the propositions that “‘the [government] may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading advertisements” and “‘[t]hat the [government] finds expression too persuasive does not permit it to quiet the speech or to burden its messengers.”’ Id., at 546 (citation omitted). At the time of this article, the FSPTCA provisions at issue in this case applied only to cigarettes and smokeless tobacco products.

Id., at 539–543.

135 S. Ct. 2218, 2226–27 (2015).

Id. at 2226 (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992); Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118 (1991)).

Contest Promotions, LLC v. City and Cty. of S.F., No. 15-CV-00093-SI, 2015 WL 4571564, at 4 (N.D. Cal. July 28, 2015) (rejecting application of Reed to laws that distinguish between on-site and off-site commercial speech and holding regulation survived intermediate scrutiny), appeal filed (August 25, 2015); see also Citizens for Free Speech, LLC v. Cty. of Alameda, No. C14–02513 CRB, 2015 WL 4365439, at 13 (N.D. Cal. July 16, 2015) (upholding sign ordinance under intermediate scrutiny and concluding Reed was inapplicable because it concerned a sign code's application of different restrictions – including temporal and geographic restrictions – to permitted signs based on their content).

Sorrell, 131 S.Ct. at 2671.

See Lorillard, 533 U.S. at 561, 565; see also Disc. Tobacco City, 674 F.3d at 540 (reciting evidence and concluding that “the massive amount of money invested by the tobacco industry in advertising and marketing is largely devoted to (1) attracting new young adult and juvenile smokers, and (2) brand competition in the young adult and juvenile market”). Given that 88% of smokers began smoking as youth, see supra note 6, and that brand changes are rare among established tobacco users, see Dawes J. , “Cigarette Brand Loyalty and Purchase Patterns: An Examination Using US Consumer Panel Data,” Journal of Business Research 67, no. 9 (2014): 1933–1943, the contention that point-of-sale advertising is directed at young adults rather than at youth may not be terribly persuasive.

U.S. Const. art. VI, cl. 2.

Altria Grp., Inc. v. Good, 555 U.S. 70, 76–77 (2008).

See supra note 67; Centers for Disease Control and Prevention, available at <http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6033a2.htm> (last visited December 15, 2015)).

15 U.S.C. § 1334(b) (2012) (emphasis added).

15 U.S.C. § 4406(b) (2012) (citing to the required warnings set out in 15 U.S.C. § 4402) (emphasis added). See supra note 20 (noting CSTHEA's preemption provision is narrower than FCLAA's).

Lorillard, 533 U.S. at 547–48; 15 U.S.C. §1334(b) (2012); see also Cipollone, 505 U.S. at 520–21.

Lorillard, 533 U.S. at 548–549.

Id., at 535–36 (citation to regulations omitted), 553–567, 590 (Souter, J., concurring in part and dissenting in part), 591 (Stephens, J., concurring in part, concurring in the judgment in part, and dissenting in part).

Family Smoking Prevention and Tobacco Control Act (FSPTCA), Pub. L. No. 111–31, 123 Stat. 1776 (codified in various sections of the U.S.C.) (2009).

15 U.S.C. § 1334(c) (2012).

There is a long-standing “time, place or manner” test under the First Amendment that is a form of intermediate scrutiny similar to the O'Brien test, but that test applies only to content-neutral restrictions on speech, i.e., restrictions that are imposed without regard to the content of the speech at issue. See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Regulations of tobacco advertising usually are not considered content neutral because they single out one kind of message – about tobacco products – for regulation.

23–34 94th St. Grocery, 685 F.3d at 182–185. See supra note 39.

23–34 94th St. Grocery, 685 F.3d at 185 (“To be sure, we do not hold that supplementary warnings are, in and of themselves, preempted under by the Labeling Act. We hold only that requiring retailers to post graphic supplementary warnings adjacent to cigarette displays is preempted.”). Thus, requiring supplemental point-of-sale cigarette health warnings remains an option where preemption under FCLAA can be avoided.

Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, 731 F.3d at 81–82 (concluding that “[p]rice regulations, including regulations of price offers, are regulations concerning the ‘manner’ of promotion” of cigarettes); Nat'l Ass'n of Tobacco Outlets, Inc. v. City of N.Y., 27 F. Supp. 3d at 426 (relying on reasoning of First Circuit in National Association of Tobacco Outlets, Inc., and finding ordinance was a “lawful restriction on the manner in which tobacco manufacturers and retailers advertise and promote their products”).

15 U.S.C. § 1331(2)(B).

FSPTCA, 123 Stat. at 1777 (Congressional findings on tobacco advertising, youth targeting and addiction, including that “[b]ecause past efforts to restrict advertising and marketing of tobacco products have failed adequately to curb tobacco use by adolescents, comprehensive restrictions on the sale, promotion, and distribution of such products are needed” and that “[f]ederal and State governments have lacked the legal and regulatory authority and resources they need to address comprehensively the public health and societal problems caused by the use of tobacco products” (emphasis added)).

Altria Grp., 555 U.S. at 77.

In a recent evaluation, eighteen states still preempted local restrictions on advertising, a number that remained constant over the decade ending in 2010. See Centers for Disease Control and Prevention, “State Preemption of Local Tobacco Control Policies Restricting Smoking Advertising and Youth Access – United States, 2000–2010,” Morbidity and Mortality Weekly Report 60, no. 33 (2011): 1124–1127.

See Sorrell, 131 S. Ct. at 2671; Thompson, 535 U.S. at 371; Lorillard, 533 U.S. at 554, 556, 561, 565, 567.

Lorillard, 533 U.S. at 565.

Laws curtailing tobacco sales near schools have passed in New Orleans, Chicago, Santa Clara County, and other jurisdictions. See, e.g., Chicago Ordinance No. 02013–9185 (2014), available at <http://www.cityofchicago.org/content/dam/city/depts/bacp/Rules%20and%20Regulations/regulationsflavoredtobaccofinal.pdf> (last visited December 11, 2015).

See, e.g., State and Community Tobacco Control Research, Point-of-Sale Report to the Nation: The Tobacco Retail and Policy Landscape (2014), available at <http://cphss.wustl.edu/Products/Documents/ASPiRE_2014_ReportToThe-Nation.pdf> (last visited November 30, 2015).

See, e.g., Berman , supra note 57.

See Coady M. H. , “Awareness and Impact of New York City's Graphic Point-of-Sale Tobacco Health Warning Signs,” Tobacco Control 22 (2013), available at <http://tobaccocontrol.bmj.com/content/early/2012/06/22/tobaccocontrol-2011-050261.full.pdf+html> (last visited November 30, 2015); Kim A. E. Nonnemaker J. M. Loomis B. R. Shafer P. R. Shaikh A. Hill E. Holloway J. W. Farrelly M. C. , “Influence of Point-of-Sale Tobacco Displays and Graphic Health Warning Signs on Adults: Evidence from a Virtual Store Experimental Study,” American Journal of Public Health 104, no. 5 (2014): 888–895.

See Zauderer, 471 U.S. 626; Am. Meat Inst., 760 F.3d 18; Disc. Tobacco City, 674 F.3d 509.

See 23–34 94th St. Grocery, 685 F.3d at 182–185.

See Milavetz, 559 U.S. at 249–50 (referring to Zauderer for the proposition that the “constitutionally protected interest in not providing the required factual information is ‘minimal”’) (citation omitted).

Sabiston C. M. Nykiforuk C. I. Hsu H. C. Hadd V. Lovato C. Y. , “Tobacco Point-of-Purchase Marketing in School Neighbourhoods and School Smoking Prevalence: A Descriptive Study,” Canadian Journal of Public Health 98, no. 4 (2007): 265–270; O'Malley P. M. Chaloupka F. J. Wakefield M. Johnston L. D. Slater S. J. , “The Impact of Retail Cigarette Marketing Practices on Youth Smoking Uptake,” Archives of Pediatric & Adolescent Medicine 161, no. 5 (2007): 440–445.

Lorillard, 533 U.S. at 555 (emphasis added) (internal quotations omitted). Preparation of legislative findings should include a detailed review of Chapters 5 and 6 of the Surgeon General's 2012 Report and the research it cites, as well as the helpful summary of key data from the report compiled in Cause and Effect: Tobacco Marketing Increases Youth Tobacco Use (Tobacco Control Legal Consortium).

Henriksen L. Feighery E. C. Schleicher N. C. Haladjian H. H. Fortmann S. P. , “Reaching Youth at the Point of Sale: Cigarette Marketing Is More Prevalent in Stores Where Adolescents Shop Frequently,” Tobacco Control 13, no. 3 (2004): 315–318.

Lorillard, 533 U.S. at 563 (“a ban on all signs of any size seems ill suited to target the population of highly visible billboards, as opposed to smaller signs”).

Id. (“To the extent that studies have identified particular advertising and promotion practices that appeal to youth, tailoring would involve targeting those practices while permitting others.”). Perhaps most importantly, the regulation must be drafted so it does not “unduly impinge on the speaker's ability to propose a commercial transaction and the adult listener's opportunity to obtain information about products.” Id., at 565.

Several provinces in Canada have enacted legislation prohibiting the display of tobacco products in retail outlets if young persons are permitted access to the premises. See, e.g., Statutes of Saskatchewan, “The Tobacco Control Act,” S.S., c. T-14.1, s. 6(3) (2001). Other guides on point-of-sale advertising restriction have expressed concern about the legality, in the U.S., of proposals to cover tobacco displays and advertising with a screen during times when youth are likely to be present. See, supra note 13.

New York State Department of Health, “'Power Wall” Display of Tobacco Products by New York State Licensed Retailers,” Tobacco Control Program StatShot 5, no. 1 (2012), available at <http://www.health.ny.gov/prevention/tobacco_control/reports/statshots/volume5/n1_display_of_tobacco_products_by_retailers.pdf> (last visited November 30, 2015).