LORILLARD TOBACCO CO. V. REILLY 533 U.S. 525 (2001) CASE BRIEF

LORILLARD TOBACCO CO. V. REILLY

533 U.S. 525 (2001)

NATURE OF THE CASE: Lorillard (P) appealed from the affirmation by the First Circuit of a decision in favor of Reilly (D), the Attorney General of Massachusetts, in P's suit to declare state regulations preempted by federal law.

FACTS: In November 1998, D along with over 40 other States, reached a landmark agreement with major manufacturers in the cigarette industry. D announced it would create consumer protection regulations to restrict advertising and sales practices for tobacco products. The purpose was 'to eliminate deception and unfairness in the way cigarettes and smokeless tobacco products are marketed, sold and distributed in Massachusetts. The regulations have a broader scope than the master settlement agreement, reaching advertising, sales practices, and members of the tobacco industry not covered by the agreement. Ps sued claiming that many of the regulations violate the Commerce Clause, the Supremacy Clause, the First and Fourteenth Amendments. Everybody moved for summary judgment. The court concluded that restrictions on the location of advertising are not based on smoking and health and thus are not pre-empted by the FCLAA. The District Court also concluded that a provision that permitted retailers to display a black and white 'tombstone' sign reading 'Tobacco Products Sold Here,' was pre-empted by the FCLAA. On First Amendment claims the court rejected Ps' argument that strict scrutiny should apply, the court applied the four-part test of Central Hudson for commercial speech. On appeal the First Circuit issued a stay pending appeal, and affirmed in part and reversed in part the District Court's judgment. With respect to the Supremacy Clause, the Court of Appeals affirmed the District Court's ruling that the Attorney General's cigarette advertising regulations are not pre-empted by the FCLAA. The Court of Appeals applied the Central Hudson test. It upheld the lower court except the District's invalidation of the point-of-sale advertising regulations. The Appeals court concluded that the Attorney General is better suited to determine what restrictions are necessary. Ps' challenged the decision with respect to the outdoor and point-of-sale advertising regulations on pre-emption and First Amendment grounds, and the sales practices regulations on First Amendment grounds. The Supreme Court granted certiorari.

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