In 1999, in an effort to reduce smoking by children, the attorney general of Massachusetts issued comprehensive regulations governing the advertising and sale of tobacco products. Among other things, the regulations banned cigarette advertisements within one thousand feet of any elementary school, secondary school, or public playground and required retailers to post any advertising in their stores at least five feet off the floor, out of the immediate sight of young children. A group of tobacco manufacturers and retailers filed suit against the state, claiming that the regulations were preempted by the federal Cigarette Labeling and Advertising Act of 1965, as amended. That act sets uniform labeling requirements and bans broadcast advertising for cigarettes. Ultimately, the case reached the United States Supreme Court, which held that the federal law on cigarette ads preempted the cigarette advertising restrictions adopted by Massachusetts. The only portion of the Massachusetts regulatory package to survive was the requirement that retailers had to place tobacco products in an area accessible only by the sales staff. In view of these facts, consider the following questions. [Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 69 L.Ed.2d 532 (2001)]
1. Some argue that having a national standard for tobacco regulation is more important than allowing states to set their own standards for tobacco regulation. Do you agree? Why or why not?
2. According to the Court in this case, the federal law does not restrict the ability of state and local governments to adopt general zoning restrictions that apply to cigarettes, so long as those restrictions are “on equal terms with other products.” How would you argue in support of this reasoning? How would you argue against it?
-Business Law Today, Standard Edition, 8th Ed., Miller & Jentz
In a paper of at least three full pages . . . answer questions #1 and #2. In question #1, please include your concept of states rights using references to the Constitution of the United States. In question #2, please include your concept of the intent of zoning regulations.
-Prof. R. Orffeo
Here is my essay:
Prior to 1789, the States adopted a confederal form of government with a weak Federal government. Each State was self-governing within its own boundaries. The nation began experiencing severe economic difficulty among other severe governing issues. It was at this time that the men who became known as our Founding Fathers drafted the Constitution, which developed a strong Federal government designed to co-exist with State governments.
The Constitution of the United States was approved by the States in 1789 and remains the basis for our government today. It separates the government into three branches: legislative, executive and judicial, and provides various checks and balances so no single branch of the government can abuse its power. It provides guidelines for the division of power between the national government and the governments of the States. Particularly relevant to this course is the fact that the Constitution delegates to the national government the power to regulate interstate commerce, a clause known as the Commerce Clause.
The Constitution is the supreme law of the land. My concept of the Constitution where States’ rights are concerned is the Constitution pre-empts the laws of the States whenever there is conflict. In Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 69 L.Ed.2d 532 (2001), the attorney general of Massachusetts attempted to regulate the advertising and sale of tobacco products. The legislation was full of what some would consider excellent ideas, two of which were that cigarette advertisements were not permitted within 1000 feet of any elementary school, secondary school or public playground, and retailers were required to post any advertising at least 5 feet off the floor, out of the immediate sight of young children. As a mother of a young child, this legislation certainly appeals to me, but Lorillard and other tobacco companies took exception to the new regulations. These companies litigated the matter all the way to the United States Supreme Court, claiming the legislation was in violation of their First and Fourteenth Amendment rights, of freedom of speech and equal protection respectively.
The question raised for the purposes of this assignment concerns whether having a national standard for tobacco regulation is more important than allowing the States to set their own standards. Legally, in accordance with the Tenth Amendment, the States specifically have all powers reserved for them that are not delegated to the Federal government. Ethically, I believe the States should have more control over legislation involving tobacco and related products, especially if it is in conjunction with efforts to reduce the number of tobacco users in the population and keep tobacco products out of the hands of children. Any decision concerning this issue should take into consideration the inherent nature of tobacco products themselves.
The First Amendment to the Constitution provides for free speech, which extends to advertising, which in turn extends to the tobacco companies. However, I think we are forgetting that tobacco is a scientifically proven, life and health threatening drug. We are not talking about advertising everyday products to sustain or enjoy life, like milk, toys, or even rubber baby buggy bumpers; we are talking about regulating the advertising of a proven dangerous product, the use of which can ultimately lead to deadly disease and death, not to mention the billions of tax dollars that are spent each year on medical care for tobacco related ailments.
The fact that tobacco is a legally traded substance should not mitigate the facts. I think we have a moral and ethical obligation to our children to protect them from dangerous substances, and that includes tobacco products. If a State wishes to regulate the advertising of tobacco products, by all means it should be permitted to do so. I understand that this would hamper the free trade of tobacco products between the States, but in my mind, keeping our children out of harm’s way is more important than tobacco companies profiting from disease-causing products and being permitted to lure children to use their products before they are old enough to make informed decisions.
Does restricting the advertising of tobacco products around schools violate the First Amendment rights of tobacco companies? Because of the type of product that is being advertised, I do not think the First Amendment should apply here. When our Founding Fathers drafted the Constitution and its Amendments, I do not believe they had the interests of drug companies and drug users in mind, whether those drugs are legal or not.
The Fourteenth Amendment provides that no State shall “. . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” I would assume the tobacco companies’ claim was that the Massachusetts regulations violated their Fourteenth Amendment rights because their products were not offered equal protection under the new Massachusetts regulations. Again, we must keep in mind the nature of the product we are discussing. Our ethical and moral responsibilities to our children should outweigh the right to use or even advertise dangerous substances within a certain distance of school grounds. We have a greater duty to protect our children from unsafe products because they are unable to protect themselves.
The second question raised for the purposes of this assignment concerns the Court’s decision that Federal law does not restrict the ability of State and local governments to adopt general zoning restrictions that apply to cigarettes, as long as those restrictions are “on equal terms with other products.” Again, I disagree.
Zoning regulations are enacted to regulate what certain property may or may not be used for. Therefore, if we could pass legislation wherein popsicles cannot be sold within 1000 feet of an elementary school, “on equal terms with other products” could mean we could also pass legislation wherein cigarettes could not be sold within 1000 feet of an elementary school. This, however, would be like comparing oranges to horses. Consider, too, the new “healthy foods” issue now prevalent concerning school snacks and cafeteria meals. High calorie foods and snacks can certainly be harmful to the health of children as shown by increasing rates in obesity in the young, leading also to health problems and heart disease. If we can regulate what types of foods are advertised and served in our schools’ cafeterias, we should certainly be able to regulate the advertising of tobacco products.
We have zoning regulations in place prohibiting tobacco use on school grounds. Schools across the nation are surrounded by signs that state “Drug Free Zone”. These zoning regulations prohibit the use of drugs within so many feet of school yards, and that includes the use of tobacco. Obviously, we have determined through our zoning regulations that tobacco is a drug; therefore, these regulations should also extend to its advertising.
It occurs to me that someone will undoubtedly take this to an extreme and say, “Well, aspirin is a drug. If we are going to regulate tobacco advertising and sale of cigarettes around schools, we should regulate advertising and sale of aspirin around schools, also.” To this, I say yes. I do not think we can be overcautious when it comes to our ethical responsibility to protect our children from potentially harmful products.
I am therefore exercising my own First Amendment right in saying that I disagree with the United States Supreme Court in its decision in the Lorillard matter as presented in the Question of Ethics. The Constitution does not provide specific regulations for drug commerce, so it must be left to the States to enact these regulations.
Paper #1 - A+ (Very well done. You support your ideas nicely and fully answer each question.)
Sincerely,
Professor Orffeo
Life is good!
