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Court Rules Baltimore Can Ban Cigarette and Alcohol Billboards


November 1995

In two opinions handed down on August 31, a three-judge panel of the Fourth Circuit U.S. Court of Appeals ruled unanimously that Baltimore can ban outdoor advertising of tobacco and alcohol products (Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, No. 94-2141, 63 F.3d 1318 (4th Cir. 1995); Anheuser-Busch, Inc. v. Schmoke, No. 94-1431, 94-1432, 63 F.3d 1305 (4th Cir. 1995); Milo Geyelin, "Limits on Cigarette Billboards Upheld," Wall Street Journal, September 7, 1995, p. B2).

In connection with other efforts to limit tobacco and alcohol use by young people, the Baltimore City Council passed Ordinance 288 in January of 1994 and Ordinance 307 in April 1994 to regulate outdoor alcohol and tobacco advertising. The ordinances make exceptions for advertising on buses, taxis, trucks that carry tobacco and alcohol products, and in the stores of licensed sellers of these products and in specifically zoned areas of the city.

The City Council held hearings on the proposals, at which evidence was presented that advertising is one of the major factors in encouraging youths to start and keep smoking and to consume alcohol. Testimony was also presented that tobacco is a "gateway drug" to the use of harder drugs.

Immediately after the passing of the ordinances, the Anheuser-Busch and Penn Advertising Companies filed suit to block the ordinances. [Penn Advertising leases billboards and rents land on which advertising is set up in the Baltimore area.] The companies argued that the new rules were violations of the First and Fourteenth Amendment protections of commercial speech. They invoked the U.S. Supreme Court's ruling in Central Hudson Gas and Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980), to show that the regulations were inappropriate limits on commercial speech. They also argued that the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §1334 (b), and Maryland laws limiting tobacco and alcohol advertising prevent further limitations at the local level. The federal law states that:

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.

The district court found that the regulations were not unconstitutional and that federal and state laws do not prohibit further regulation that passes the four-part test outlined in the Hudson U.S. Supreme Court ruling. The district court found that the City Council had presented enough evidence of their motivation for the ordinances to satisfy that test.

The Court of Appeals agreed with the district court, finding also that the ordinances do not in fact limit advertising of these products, only the locations in which such advertising can be placed. It also required a low level of proof on the part of the City to justify the regulation:

There is a logical nexus between the City's objective and the means it selected for achieving that objective, and it is not necessary ... to prove conclusively that the correlation in fact exists, or that the steps undertaken will solve the problem.

The ordinances have not been enforced while the cases were pending, and Penn Advertising promised to appeal the case to the U.S. Supreme Court. The cases could foreshadow legal fights over proposed FDA regulations on tobacco products, which include restrictions on cigarette advertising (see "Clinton Approves Unprecedented Measures to Curb Youth Smoking," NewsBriefs October 1995).

[NewsBriefs has received copies of these rulings. If you are a member of the National Drug Strategy Network and would like a copy, contact the NDSN office.]