Lorillard Tobacco Co. v. Reilly
The Supreme Court struck down most of Massachusetts' tobacco advertising rules, ruling that federal cigarette law already blocks state regulation of cigarette ad placement, and that the remaining outdoor and indoor advertising restrictions on cigars and smokeless tobacco went too far under the First Amendment.
The Court did uphold Massachusetts' rules requiring retailers to keep tobacco products behind the counter, finding those rules regulate conduct rather than speech and survive scrutiny either way.
“The State's interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity.”
Explaining why broad advertising bans must still respect adults' access to truthful information.
How it got here: A federal trial court largely upheld the rules on summary judgment; the First Circuit affirmed in part and reversed in part; both sides sought Supreme Court review.
The Case in Depth
What happened
In 1999, Massachusetts' Attorney General adopted regulations restricting how cigarettes, smokeless tobacco, and cigars could be advertised and sold, including bans on outdoor ads near schools and playgrounds, height limits on indoor ads, and bans on self-service tobacco displays. Cigarette, smokeless tobacco, and cigar manufacturers and retailers sued, arguing the rules were illegal and unconstitutional.
The question before the Court
Could Massachusetts ban most outdoor tobacco advertising near schools and require indoor tobacco ads to sit above five feet, without running into federal cigarette law or the First Amendment?
Why it matters
States trying to combat underage smoking through advertising restrictions now have less room to maneuver: cigarette ad-location rules are largely off the table because of federal preemption, and broad outdoor/indoor ad bans for other tobacco products must be much more narrowly tailored. Retailers can still be required to keep tobacco behind the counter.
What changes now
The case is remanded to the lower courts for further proceedings consistent with the ruling. Massachusetts can no longer enforce its cigarette advertising location rules (preempted) or its outdoor/indoor smokeless tobacco and cigar advertising restrictions (unconstitutional as drawn), but its sales-practices rules requiring tobacco behind the counter remain in force. States seeking to regulate tobacco advertising going forward must design narrower rules that better account for adults' speech interests.
What this does not decide
The Court did not decide whether a state could ever regulate the location of cigarette advertising outside the smoking-and-health context, nor did it decide whether narrower, better-tailored outdoor or indoor advertising rules for smokeless tobacco or cigars might survive First Amendment scrutiny. It also left open whether tobacco advertising could be restricted as misleading, since the State had conceded otherwise below.
Concurrences and dissents
Concurrence — Justice Kennedy
Justice Kennedy, joined by Justice Scalia, agreed the outdoor advertising rules fail Central Hudson's fourth step due to obvious overbreadth, but saw no need to decide whether the rules satisfy the third step or whether Central Hudson itself should be reconsidered. He also declined to join the Court's application of the third step to the evidence.
Concurrence — Justice Thomas
Justice Thomas agreed with the disposition but argued that strict scrutiny, not the more lenient Central Hudson test, should apply whenever government restricts truthful speech to suppress the ideas it conveys, commercial or not. Applying strict scrutiny, he would have held all the advertising restrictions unconstitutional, questioning whether a coherent line even exists between commercial and noncommercial speech.
Dissent in part — Justice Souter
Justice Souter joined most of the Court's opinion but dissented from the ruling upholding the 1,000-foot outdoor advertising rule, agreeing with Justice Stevens that the record was too undeveloped to decide the tailoring question on summary judgment and that the case should be sent back for trial.
Dissent in part — Justice Stevens
“I wonder why a Court sensitive to federalism concerns would adopt such a strange construction of statutory language whose quite different purpose Congress took pains to explain.”Criticizing the majority's reading of the federal cigarette law as blocking local advertising-location rules.
Justice Stevens, joined by Justices Ginsburg and Breyer (and by Souter as to Part I), argued the FCLAA was never meant to preempt state location-based cigarette advertising rules, only content-based ones, based on the statute's history and purpose. On the First Amendment issues he agreed outdoor ad rules might be too broad but thought the record was undeveloped and would have remanded for trial rather than striking the rules outright, and he would have upheld the indoor height rule and sales-practices rules entirely.
How the Court got there
The legal reasoning, step by step
- The Court first asked whether the federal Cigarette Labeling and Advertising Act (FCLAA), which bars states from imposing any 'requirement or prohibition based on smoking and health' on cigarette advertising, preempted Massachusetts' cigarette-specific ad-placement rules.
- Reading the preemption language broadly and in light of its history, the Court concluded that Congress meant to block any state cigarette-advertising rule motivated by concerns about smoking and health, not just rules about the content of ads — so a rule aimed at keeping cigarette ads away from children still counted as preempted.
- Because that preemption provision applies only to cigarettes, the Court turned to the First Amendment for the smokeless tobacco and cigar rules, applying the four-part Central Hudson test for commercial speech, which asks whether the speech is lawful and non-misleading, whether the government's interest is substantial, whether the rule actually advances that interest, and whether the rule restricts no more speech than necessary.
- The Court found Massachusetts had substantial evidence that advertising encourages underage use of smokeless tobacco and cigars, satisfying the test's third step, but found the outdoor ad ban swept too broadly — covering up to 90% of some cities and all sign sizes and oral statements — so it failed the fourth step's tailoring requirement.
- The same tailoring problem doomed the indoor five-foot height rule, since it made unsupported assumptions about children's eyesight and did not meaningfully advance the state's goal.
- By contrast, the Court treated the sales-practices rules (requiring tobacco behind the counter, banning self-service displays) as regulating conduct rather than speech, so they easily passed muster as narrowly tailored to prevent underage access.
Doctrinal impact
Cases affected by this decision
Reaffirms Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y. (447 U.S. 557)
The Court relied on and applied this four-part commercial-speech test rather than adopting stricter scrutiny.
Distinguishes United States v. Lopez (514 U.S. 549)
The Court said its Commerce Clause ruling in Lopez had no bearing on this Supremacy Clause preemption question.