Are Local Tobacco Billboard Bans Subject to Federal Preemption?
By John J. Wash and Steven G. Brody T he applicability of federal preemption principles to state or local restrictions on outdoor tobacco advertising is a vexed question in the federal courts at present. Judges are attempting to cope with challenges to a proliferating array of such restrictions spawned by concerns about the health risks of smoking. Two incompatible lines of decision have emerged since (and probably because of) the Supreme Court’s badly splintered 1992 decision in Cipollone v. Liggett Group, interpreting Section 1334(b) of the Federal Cigarette Labeling and Advertising Act (FCLAA). The “no preemption” cases are led by the Fourth Circuit’s 1995 and 1996 decisions in Penn Advertising v. Mayor and City Council, which concluded that Baltimore’s ordinance regulated only the location of outdoor tobacco advertising, not its content, and neither imposed a duty nor relieved a burden in a manner inconsistent with the FCLAA. Relying at least in part on Penn Advertising, district c
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