Tobacco

State and local governments are also involved in the regulation of tobacco and tobacco products. Such regulations typically restrict the use of tobacco by minors, require licenses for those who sell tobacco products, and restrict vending machine and individual cigarette sales. The scope of state and local regulation is limited, however, because it may not extend to areas already being regulated by the federal government. For example, because the FCLAA regulates advertising based on smoking and health considerations, states and localities can restrict advertising only for other reasons, such as to protect citizens' aesthetic sensibilities, to control the location or types of cigarette displays, or to protect children from promotions blatantly aimed at them as consumers.

Whether the FCLAA preempts state regulation of promotions aimed at children has been disputed in the courts. In Penn Advertising v. City of Baltimore, 862 F. Supp. 1402 (D. Md. 1994), aff'd, 63 F.3d 1318 (4th Cir. 1995), vacated by Penn Advertising v. Schmoke, 518 U.S. 1030, 116 S. Ct. 2575, 135 L. Ed. 2d 1090, the court held that the FCLAA did not preempt a local ordinance that barred cigarette advertising in certain locations where children were likely to be found, such as near schools.

However, in Lorillard Tobacco Corp. v. Reilly, 533 U.S. 525, 121 S. Ct. 2404, 150 L. Ed. 2d 532 (2001), the Supreme Court struck down a state regulation that prohibited tobacco ads within one thousand feet of public playgrounds, parks, and schools. The Court reaffirmed its holding that the FCLAA preempted most state regulation of advertising. States were free to use ZONING restrictions to limit the size and location of advertisements of all products, not just tobacco products. The state regulation in this case was invalid because it dealt only with tobacco advertising. In addition, the regulation violated the FIRST AMENDMENT because it unduly restricted commercial free speech.