The Supreme Court on 6/28/01 struck down several Massachusetts regulations governing the advertising and sale of cigarettes, cigars and smokeless tobacco as unconstitutional. T he Court struck down several provisions of the regulations. It held that the Federal Cigarette Labeling and Advertising Act ("FCLAA") pre-empts the Commonwealth’s attempt to require cigarette packages and cigarette advertising to bear statements regarding smoking and health beyond those required by the FCLAA. The Court also held that Massachusetts’ outdoor and point-of-sale advertising regulations relating to smokeless tobacco and cigars violate the First Amendment because they were not sufficiently tailored to avoid conflict with the First Amendment’s free speech guarantees. In so doing, the Court applied the Central Hudson test for commercial speech, which some had thought the Court might modify or abandon in this case.
The Court upheld other portions of Massachusetts’ regulations. It found that the FCLAA did not restrict the ability of States and localities to enact generally applicable zoning restrictions that apply to cigarettes on equal terms with other products. It also found that regulations requiring retailers to place tobacco products behind counters and requiring customers to have contact with a salesperson before they are able to handle such products do not violate the First Amendment.