THE IMPACT OF THE NEW FDA TOBACCO LAW ON STATE TOBACCO CONTROL EFFORTS
The new FDA tobacco law does not in any way interfere with the ability of states (or localities) to raise tobacco tax rates, implement and enforce comprehensive smoke-free laws, adequately fund strong state tobacco prevention programs, or take any actions to restrict the sale or distribution of tobacco products. But it greatly expands what states (and localities) can do to prohibit or restrict tobacco product advertising and promotion. Consistent with the way the FDA regulates other products under its jurisdiction, the FDA tobacco law blocks states from taking action specifically to regulate the structure of any tobacco product that FDA is already formally regulating (except that states are still left free to pass and enforce fire-safe cigarette laws). At the same time, the FDA tobacco law, once fully implemented, establishes a range of new marketing restrictions and other measures that apply nationwide to complement state tobacco prevention efforts and make some new state or local action unnecessary.
Expanded State Authority to Restrict Cigarette Advertising and Promotion. For many years, the Federal Cigarette Labeling and Advertising Act (FCLAA) has preempted states from taking any action, for health purposes, to restrict cigarette advertising or promotion. The passage of the FDA bill changes that by newly allowing states to restrict or regulate the time, place and manner (but not the content) of any cigarette advertising or promotions. Among other things, states may now take such new action as:
Limit the number or size of tobacco product ads at retail outlets;
Prohibit the placement of tobacco products and tobacco product ads near cash registers (to reduce impulse purchases by smokers trying to quit); or
Supplement the new FDA time, place and manner advertising restrictions that apply only to cigarette and smokeless tobacco ads by establishing similar restrictions on cigar and other tobacco product ads.
But any new state or local time, place or manner restrictions on tobacco product advertising will still have to contend with First Amendment protections for commercial speech. Put simply, new state restrictions on tobacco product advertising will likely pass constitutional muster if it is clear that they will directly advance the government’s substantial interest in reducing youth and adult tobacco use or otherwise protecting and promoting public health; are not more extensive than necessary to promote those government interests; and will leave tobacco companies and retailers reasonably able to communicate with their legal tobacco product customers. †
No Impact on the Most Important Forms of State Tobacco Control Activity. The FDA tobacco law leaves state and local governments free to pursue those key policies – such as smoke-free laws, tobacco tax increases and increased tobacco prevention program funding – that work most effectively to prevent and reduce tobacco use. The FDA law also does nothing to restrict states from adopting and enforcing measures to restrict youth or adult access to tobacco products or to take any other action to regulate or restrict the sale, distribution, and possession of tobacco products.
There is no FCLAA-like preemption of state or local action to restrict the advertising of tobacco products other than cigarettes. But federal law does directly preempt states and localities from placing any requirements, for health purposes, on the packaging or labeling of smokeless tobacco, as well as cigarettes.
For more on First Amendment constraints and how they can be overcome, see the Campaign factsheet, Permissible
State Restrictions on Tobacco Product Marketing, http://tobaccofreekids.org/research/factsheets/pdf/0280.pdf.
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