LORILLARD TOBACCO CO. et al. v. REILLY, ATTOR- NEY GENERAL OF MASSACHUSETTS, et al.

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525 OCTOBER TERM, 2000
Syllabus
LORILLARD TOBACCO CO. et al. v. REILLY, ATTOR-
NEY GENERAL OF MASSACHUSETTS, et al.
certiorari to the united states court of appeals for
the first circuit
No. 00–596. Argued April 25, 2001—Decided June 28, 2001*
After the Attorney General of Massachusetts (Attorney General) promul-
gated comprehensive regulations governing the advertising and sale of
cigarettes, smokeless tobacco, and cigars, petitioners, a group of tobacco
manufacturers and retailers, filed this suit asserting, among other
things, the Supremacy Clause claim that the cigarette advertising regu-
lations are pre-empted by the Federal Cigarette Labeling and Adver-
tising Act (FCLAA), which prescribes mandatory health warnings for
cigarette packaging and advertising, 15 U. S. C. § 1333, and pre-empts
similar state regulations, § 1334(b); and a claim that the regulations vio-
late the First and Fourteenth Amendments to the Federal Constitution.
In large measure, the District Court upheld the regulations. Among
its rulings, the court held that restrictions on the location of advertising
were not pre-empted by the FCLAA, and that neither the regulations
prohibiting outdoor advertising within 1,000 feet of a school or play-
ground nor the sales practices regulations restricting the location and
distribution of tobacco products violated the First Amendment. The
court ruled, however, that the point-of-sale advertising regulations re-
quiring that indoor advertising be placed no lower than five feet from
the floor were invalid because the Attorney General had not provided
sufficient justification for that restriction. The First Circuit affirmed
the District Court’s rulings that the cigarette advertising regulations
are not pre-empted by the FCLAA and that the outdoor advertising
regulations and the sales practices regulations do not violate the First
Amendment under Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n of N. Y., 447 U. S. 557, but reversed the lower court’s invalida-
tion of the point-of-sale advertising regulations, concluding that the At-
torney General is better suited than courts to determine what restric-
tions are necessary.
Held:
1. The FCLAA pre-empts Massachusetts’ regulations governing out-
door and point-of-sale cigarette advertising. Pp. 540–553.
*Together with No. 00–597, Altadis U. S. A. Inc., as Successor to Con-
solidated Cigar Corp. and Havatampa, Inc., et al. v. Reilly, Attorney
General of Massachusetts, et al., also on certiorari to the same court.

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526 LORILLARD TOBACCO CO. v. REILLY
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(a) The FCLAA’s pre-emption provision, § 1334, prohibits (a) re-
quiring cigarette packages to bear any “statement relating to smoking
and health, other than the statement required by” § 1333, and (b) any
“requirement or prohibition based on smoking and health . . . imposed
under state law with respect to the advertising or promotion of any
cigarettes the packages of which are labeled in conformity with” § 1333.
The Court’s analysis begins with the statute’s language. Hughes Air-
craft Co. v. Jacobson, 525 U. S. 432, 438. The statute’s interpretation is
aided by considering the predecessor pre-emption provision and the con-
text in which the current language was adopted. See, e. g., Medtronic,
Inc. v. Lohr, 518 U. S. 470, 486. The original provision simply prohib-
ited any “statement relating to smoking and health . . . in the advertis-
ing of any cigarettes the packages of which are labeled in conformity
with the [Act’s] provisions.” Without question, the current pre-emption
provision’s plain language is much broader. Cipollone v. Liggett Group,
Inc., 505 U. S. 504, 520. Rather than preventing only “statements,” the
amended provision reaches all “requirement[s] or prohibition[s] . . . im-
posed under State law.” And, although the former statute reached only
statements “in the advertising,” the current provision governs “with
respect to the advertising or promotion” of cigarettes. At the same
time that Congress expanded the pre-emption provision with respect to
the States, it enacted a provision prohibiting cigarette advertising in
electronic media altogether. Pp. 540–546.
(b) Congress pre-empted state cigarette advertising regulations
like the Attorney General’s because they would upset federal legislative
choices to require specific warnings and to impose the ban on cigarette
advertising in electronic media in order to address concerns about smok-
ing and health. In holding that the FCLAA does not nullify the Massa-
chusetts regulations, the First Circuit concentrated on whether they are
“with respect to” advertising and promotion, concluding that the
FCLAA only pre-empts regulations of the content of cigarette advertis-
ing. The court also reasoned that the regulations are a form of zoning,
a traditional area of state power, and, therefore, a presumption against
pre-emption applied, see California Div. of Labor Standards Enforce-
ment v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325. This Court
rejects the notion that the regulations are not “with respect to” ciga-
rette advertising and promotion. There is no question about an indi-
rect relationship between the Massachusetts regulations and cigarette
advertising: The regulations expressly target such advertising. Id., at
324–325. The Attorney General’s argument that the regulations are
not “based on smoking and health” since they do not involve health-
related content, but instead target youth exposure to cigarette advertis-
ing, is unpersuasive because, at bottom, the youth exposure concern is

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intertwined with the smoking and health concern. Also unavailing is
the Attorney General’s claim that the regulations are not pre-empted
because they govern the location, not the content, of cigarette advertis-
ing. The content/location distinction cannot be squared with the pre-
emption provision’s language, which reaches all “requirements” and
“prohibitions” “imposed under State law.” A distinction between ad-
vertising content and location in the FCLAA also cannot be reconciled
with Congress’ own location-based restriction, which bans advertising
in electronic media, but not elsewhere. The Attorney General’s asser-
tion that a complete state ban on cigarette advertising would not be
pre-empted because Congress did not intend to preclude local control of
zoning finds no support in the FCLAA, whose comprehensive warnings,
advertising restrictions, and pre-emption provision would make little
sense if a State or locality could simply target and ban all cigarette
advertising. Pp. 546–551.
(c) The FCLAA’s pre-emption provision does not restrict States’
and localities’ ability to enact generally applicable zoning restrictions on
the location and size of advertisements that apply to cigarettes on equal
terms with other products, see, e. g., Metromedia, Inc. v. San Diego, 453
U. S. 490, 507–508, or to regulate conduct as it relates to the sale or use
of cigarettes, as by prohibiting cigarette sales to minors, see 42 U. S. C.
§§ 300x–26(a)(1), 300x–21, as well as common inchoate offenses that at-
tach to criminal conduct, such as solicitation, conspiracy, and attempt,
cf. Central Hudson, supra, at 563–564. Pp. 551–552.
(d) Because the issue was not decided below, the Court declines
to reach the smokeless tobacco petitioners’ argument that, if the out-
door and point-of-sale advertising regulations for cigarettes are pre-
empted, then the same regulations for smokeless tobacco must be invali-
dated because they cannot be severed from the cigarette provisions.
P. 553.
2. Massachusetts’ outdoor and point-of-sale advertising regulations
relating to smokeless tobacco and cigars violate the First Amendment,
but the sales practices regulations relating to all three tobacco products
are constitutional. Pp. 553–571.
(a) Under Central Hudson’s four-part test for analyzing regula-
tions of commercial speech, the Court must determine (1) whether the
expression is protected by the First Amendment, (2) whether the as-
serted governmental interest is substantial, (3) whether the regulation
directly advances the governmental interest asserted, and (4) whether
it is not more extensive than is necessary to serve that interest. 447
U. S., at 566. Only the last two steps are at issue here. The Attorney
General has assumed for summary judgment purposes that the First
Amendment protects the speech of petitioners, none of whom contests

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528 LORILLARD TOBACCO CO. v. REILLY
Syllabus
the importance of the State’s interest in preventing the use of tobacco
by minors. The third step of Central Hudson requires that the govern-
ment demonstrate that the harms it recites are real and that its restric-
tion will in fact alleviate them to a material degree. Edenfield v. Fane,
507 U. S. 761, 770–771. The fourth step of Central Hudson requires a
reasonable fit between the legislature’s ends and the means chosen to
accomplish those ends, a means narrowly tailored to achieve the desired
objective. E. g., Florida Bar v. Went For It, Inc., 515 U. S. 618, 632.
Pp. 553–556.
(b) The outdoor advertising regulations prohibiting smokeless to-
bacco or cigar advertising within 1,000 feet of a school or playground
violate the First Amendment. Pp. 556–566.
(1) Those regulations satisfy Central Hudson’s third step by di-
rectly advancing the governmental interest asserted to justify them.
The Court’s detailed review of the record reveals that the Attorney
General has provided ample documentation of the problem with under-
age use of smokeless tobacco and cigars. In addition, the Court dis-
agrees with petitioners’ claim that there is no evidence that preventing
targeted advertising campaigns and limiting youth exposure to adver-
tising will decrease underage use of those products. On the record
below and in the posture of summary judgment, it cannot be concluded
that the Attorney General’s decision to regulate smokeless tobacco and
cigar advertising in an effort to combat the use of tobacco products by
minors was based on mere “speculation and conjecture.” Edenfield,
supra, at 770. Pp. 556–561.
(2) Whatever the strength of the Attorney General’s evidence to
justify the outdoor advertising regulations, however, the regulations do
not satisfy Central Hudson’s fourth step. Their broad sweep indicates
that the Attorney General did not “carefully calculat[e] the costs and
benefits associated with the burden on speech imposed.” Cincinnati v.
Discovery Network, Inc., 507 U. S. 410, 417. The record indicates that
the regulations prohibit advertising in a substantial portion of Massa-
chusetts’ major metropolitan areas; in some areas, they would constitute
nearly a complete ban on the communication of truthful information.
This substantial geographical reach is compounded by other factors.
“Outdoor” advertising includes not only advertising located outside an
establishment, but also advertising inside a store if visible from outside.
Moreover, the regulations restrict advertisements of any size, and the
term advertisement also includes oral statements. The uniformly
broad sweep of the geographical limitation and the range of communica-
tions restricted demonstrate a lack of tailoring. The governmental in-
terest in preventing underage tobacco use is substantial, and even com-
pelling, but it is no less true that the sale and use of tobacco products by

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Syllabus
adults is a legal activity. A speech regulation cannot unduly impinge on
the speaker’s ability to propose a commercial transaction and the adult
listener’s opportunity to obtain information about products. The Attor-
ney General has failed to show that the regulations at issue are not
more extensive than necessary. Pp. 561–566.
(c) The regulations prohibiting indoor, point-of-sale advertising of
smokeless tobacco and cigars lower than 5 feet from the floor of a retail
establishment located within 1,000 feet of a school or playground fail
both the third and fourth steps of the Central Hudson analysis. The
5-foot rule does not seem to advance the goals of preventing minors
from using tobacco products and curbing demand for that activity by
limiting youth exposure to advertising. Not all children are less than
5 feet tall, and those who are can look up and take in their surroundings.
Nor can the blanket height restriction be construed as a mere regulation
of communicative action under United States v. O’Brien, 391 U. S. 367,
since it is not unrelated to expression, see, e. g., Texas v. Johnson, 491
U. S. 397, 403, but attempts to regulate directly the communicative im-
pact of indoor advertising. Moreover, the restriction does not consti-
tute a reasonable fit with the goal of targeting tobacco advertising that
entices children. Although the First Circuit decided that the restric-
tion’s burden on speech is very limited, there is no de minimis exception
for a speech restriction that lacks sufficient tailoring or justification.
Pp. 566–567.
(d) Assuming that petitioners have a cognizable speech interest in
a particular means of displaying their products, cf. Cincinnati v. Discov-
ery Network, Inc., supra, at 410, the regulations requiring retailers to
place tobacco products behind counters and requiring customers to have
contact with a salesperson before they are able to handle such a product
withstand First Amendment scrutiny. The State has demonstrated a
substantial interest in preventing access to tobacco products by minors
and has adopted an appropriately narrow means of advancing that inter-
est. See, e. g., O’Brien, supra, at 382. Because unattended displays of
such products present an opportunity for access without the proper age
verification required by law, the State prohibits self-service and other
displays that would allow an individual to obtain tobacco without direct
contact with a salesperson. It is clear that the regulations leave open
ample communication channels. They do not significantly impede adult
access to tobacco products, and retailers have other means of exercising
any cognizable speech interest in the presentation of their products.
The Court presumes that vendors may place empty tobacco packaging
on open display, and display actual tobacco products so long as that
display is only accessible to sales personnel. As for cigars, there is
no indication that a customer is unable to examine a cigar prior to pur-

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530 LORILLARD TOBACCO CO. v. REILLY
Syllabus
chase, so long as that examination takes place through a salesperson.
Pp. 567–570.
(e) The Court declines to address the cigar petitioners’ First
Amendment challenge to a regulation prohibiting sampling or promo-
tional giveaways of cigars and little cigars. That claim was not suffi-
ciently briefed and argued before this Court. Pp. 570–571.
218 F. 3d 30, affirmed in part, reversed in part, and remanded.
O’Connor, J., delivered the opinion of the Court, Parts I, II–C, and
II–D of which were unanimous; Parts III–A, III–C, and III–D of which
were joined by Rehnquist, C. J., and Scalia, Kennedy, Souter, and
Thomas, JJ.; Part III–B–1 of which was joined by Rehnquist, C. J., and
Stevens, Souter, Ginsburg, and Breyer, JJ.; and Parts II–A, II–B,
III–B–2, and IV of which were joined by Rehnquist, C. J., and Scalia,
Kennedy, and Thomas, JJ. Kennedy, J., filed an opinion concurring in
part and concurring in the judgment, in which Scalia, J., joined, post,
p. 571. Thomas, J., filed an opinion concurring in part and concurring in
the judgment, post, p. 572. Souter, J., filed an opinion concurring in part
and dissenting in part, post, p. 590. Stevens, J., filed an opinion concur-
ring in part, concurring in the judgment in part, and dissenting in part,
in which Ginsburg and Breyer, JJ., joined, and in which Souter, J.,
joined as to Part I, post, p. 590.
Jeffrey S. Sutton argued the cause for petitioners in
No. 00–596. With him on the briefs were Daniel P. Collins,
Michael R. Doyen, Fred A. Rowley, Jr., Kenneth S. Geller,
Andrew L. Frey, Richard M. Zielinski, John L. Strauch,
Gregory G. Katsas, John B. Connarton, Jr., Patricia A. Bar-
ald, and David H. Remes. James V. Kearney filed a brief
for petitioners in No. 00–597. With Mr. Kearney on the
brief were Christopher Harris and Richard P. Bress. Peter
J. McKenna and Eric S. Sarner filed a brief for petitioner
U. S. Smokeless Tobacco Company in both cases.
William W. Porter, Assistant Attorney General of the
Commonwealth of Massachusetts, argued the cause for re-
spondents in both cases. With him on the brief were
Thomas F. Reilly, Attorney General, and Susan Paulson,
Assistant Attorney General.
Acting Solicitor General Underwood argued the cause
for the United States as amicus curiae urging affirmance.

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531 Cite as: 533 U. S. 525 (2001)
Counsel
With her on the brief were Acting Assistant Attorney Gen-
eral Schiffer, Deputy Solicitor General Kneedler, Irving L.
Gornstein, and Douglas N. Letter.*
*Briefs of amici curiae urging reversal were filed for the American
Advertising Federation et al. by Daniel E. Troy and Robin S. Conrad; for
the American Association of Advertising Agencies et al. by Penelope S.
Farthing; for the Association of National Advertisers, Inc., by Steven G.
Brody, John J. Walsh, and Gilbert H. Weil; for Infinity Outdoor, Inc., et al.
by Floyd Abrams and Joel Kurtzberg; for the National Association of Con-
venience Stores by Scott A. Sinder and John B. Williams; for the News-
paper Association of America et al. by Bruce E. H. Johnson, P. Cameron
DeVore, Rene´ P. Milam, Steven R. Shapiro, Stuart D. Karle, Robin Bier-
stedt, Lucy Dalglish, and Gregg Leslie; for the Product Liability Advisory
Council, Inc., by Leslie G. Landau; and for the Washington Legal Founda-
tion by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of
California et al. by Seth E. Mermin and Corinne Lee Murphy, Deputy
Attorneys General of California, Bill Lockyer, Attorney General, Richard
M. Frank, Chief Assistant Attorney General, Herschel T. Elkins and Den-
nis Eckhart, Senior Assistant Attorneys General, Ronald A. Reiter, Su-
pervising Deputy Attorney General, and Robert R. Rigsby, Corporation
Counsel of the District of Columbia, and by the Attorneys General for
their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet
Napolitano of Arizona, Mark Pryor of Arkansas, Ken Salazar of Colo-
rado, Richard Blumenthal of Connecticut, Robert A. Butterworth of Flor-
ida, Earl I. Anzai of Hawaii, Alan G. Lance of Idaho, Jim Ryan of Illinois,
Steve Carter of Indiana, Tom Miller of Iowa, Carla J. Stovall of Kansas,
Richard P. Ieyoub of Louisiana, Steve Rowe of Maine, J. Joseph Curran,
Jr., of Maryland, Mike Hatch of Minnesota, Mike Moore of Mississippi,
Jeremiah W. Nixon of Missouri, Mike McGrath of Montana, Frankie Sue
Del Papa of Nevada, Philip T. McLaughlin of New Hampshire, John
Farmer of New Jersey, Patricia Madrid of New Mexico, Eliot Spitzer of
New York, Wayne Stenehjem of North Dakota, Herbert D. Soll of the
Northern Mariana Islands, Betty D. Montgomery of Ohio, W. A. Drew
Edmondson of Oklahoma, Hardy Myers of Oregon, Mike Fisher of Penn-
sylvania, Sheldon Whitehouse of Rhode Island, Mark Barnett of South
Dakota, Paul Summers of Tennessee, John Cornyn of Texas, Mark Shurt-
leff of Utah, William H. Sorrell of Vermont, Christine O. Gregoire of
Washington, Darrel V. McGraw, Jr., of West Virginia, and James E. Doyle
of Wisconsin; for the Cities of Oakland, California, et al. by Stephen P.
Berzon, Michael E. Wall, Lawrence Rosenthal, and Benna Ruth Solomon;

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532 LORILLARD TOBACCO CO. v. REILLY
Opinion of the Court
Justice O’Connor delivered the opinion of the Court.
In January 1999, the Attorney General of Massachusetts
promulgated comprehensive regulations governing the ad-
vertising and sale of cigarettes, smokeless tobacco, and ci-
gars. 940 Code of Mass. Regs. §§ 21.01–21.07, 22.01–22.09
(2000). Petitioners, a group of cigarette, smokeless tobacco,
and cigar manufacturers and retailers, filed suit in Federal
District Court claiming that the regulations violate federal
law and the United States Constitution. In large measure,
the District Court determined that the regulations are valid
and enforceable. The United States Court of Appeals for
the First Circuit affirmed in part and reversed in part, con-
cluding that the regulations are not pre-empted by federal
law and do not violate the First Amendment. The first
question presented for our review is whether certain ciga-
rette advertising regulations are pre-empted by the Federal
Cigarette Labeling and Advertising Act (FCLAA), 79 Stat.
282, as amended, 15 U. S. C. § 1331 et seq. The second ques-
tion presented is whether certain regulations governing the
advertising and sale of tobacco products violate the First
Amendment.
for the City of Los Angeles et al. by Mark E. Haddad, James M. Harris,
Joseph R. Guerra, and James K. Hahn; for the City of New York et al. by
Michael D. Hess, Leonard J. Koerner, Elizabeth Susan Natrella, Richard
M. Weinberg, and Sandra R. Gutman; for the American Legacy Founda-
tion by A. Stephen Hut, Jr., John Payton, Patrick J. Carome, and Mat-
thew A. Brill; for the American Medical Association et al. by Donald W.
Garner; for the National Center for Tobacco-Free Kids et al. by David
Vladeck, Allison M. Zieve, Alan B. Morrison, and Matthew L. Myers; for
the National Conference of State Legislatures et al. by Richard Ruda,
James I. Crowley, and D. Bruce La Pierre; and for the Tobacco Control
Resource Center, Inc., by Richard A. Daynard.
Briefs of amici curiae were filed for the State’s Attorney of Dupage
County, Illinois, et al. by Richard Hodyl, Jr., Joseph E. Birkett, and
Nancy J. Wolfe; and for the American Planning Association by Randal
R. Morrison.

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Opinion of the Court
I
In November 1998, Massachusetts, along with over 40
other States, reached a landmark agreement with major
manufacturers in the cigarette industry. The signatory
States settled their claims against these companies in ex-
change for monetary payments and permanent injunctive re-
lief. See App. 253–258 (Outline of Terms for Massachusetts
in National Tobacco Settlement); Master Settlement Agree-
ment (Nov. 23, 1998), http://www.naag.org. At the press
conference covering Massachusetts’ decision to sign the
agreement, then-Attorney General Scott Harshbarger an-
nounced that as one of his last acts in office, he would create
consumer protection regulations to restrict advertising and
sales practices for tobacco products. He explained that the
regulations were necessary in order to “close holes” in the
settlement agreement and “to stop Big Tobacco from recruit-
ing new customers among the children of Massachusetts.”
App. 251.
In January 1999, pursuant to his authority to prevent
unfair or deceptive practices in trade, Mass. Gen. Laws,
ch. 93A, § 2 (1997), the Massachusetts Attorney General (At-
torney General) promulgated regulations governing the sale
and advertisement of cigarettes, smokeless tobacco, and ci-
gars. The purpose of the cigarette and smokeless tobacco
regulations is “to eliminate deception and unfairness in the
way cigarettes and smokeless tobacco products are mar-
keted, sold and distributed in Massachusetts in order to ad-
dress the incidence of cigarette smoking and smokeless to-
bacco use by children under legal age . . . [and] in order to
prevent access to such products by underage consumers.”
940 Code of Mass. Regs. § 21.01 (2000). The similar purpose
of the cigar regulations is “to eliminate deception and unfair-
ness in the way cigars and little cigars are packaged, mar-
keted, sold and distributed in Massachusetts [so that] . . .
consumers may be adequately informed about the health

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534 LORILLARD TOBACCO CO. v. REILLY
Opinion of the Court
risks associated with cigar smoking, its addictive properties,
and the false perception that cigars are a safe alternative to
cigarettes . . . [and so that] the incidence of cigar use by
children under legal age is addressed . . . in order to prevent
access to such products by underage consumers.” Ibid.
The regulations have a broader scope than the master settle-
ment agreement, reaching advertising, sales practices, and
members of the tobacco industry not covered by the agree-
ment. The regulations place a variety of restrictions on
outdoor advertising, point-of-sale advertising, retail sales
transactions, transactions by mail, promotions, sampling of
products, and labels for cigars.
The cigarette and smokeless tobacco regulations being
challenged before this Court provide:
“(2) Retail Outlet Sales Practices. Except as other-
wise provided in [§ 21.04(4)], it shall be an unfair or
deceptive act or practice for any person who sells or
distributes cigarettes or smokeless tobacco products
through a retail outlet located within Massachusetts
to engage in any of the following retail outlet sales
practices:
. . . . .
“(c) Using self-service displays of cigarettes or smoke-
less tobacco products;
“(d) Failing to place cigarettes and smokeless tobacco
products out of the reach of all consumers, and
in a location accessible only to outlet personnel.”
§§ 21.04(2)(c)–(d).
“(5) Advertising Restrictions. Except as provided in
[§ 21.04(6)], it shall be an unfair or deceptive act or prac-
tice for any manufacturer, distributor or retailer to en-
gage in any of the following practices:
“(a) Outdoor advertising, including advertising in en-
closed stadiums and advertising from within a retail es-
tablishment that is directed toward or visible from the

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535 Cite as: 533 U. S. 525 (2001)
Opinion of the Court
outside of the establishment, in any location that is
within a 1,000 foot radius of any public playground, play-
ground area in a public park, elementary school or sec-
ondary school;
“(b) Point-of-sale advertising of cigarettes or smokeless
tobacco products any portion of which is placed lower
than five feet from the floor of any retail establishment
which is located within a one thousand foot radius of
any public playground, playground area in a public park,
elementary school or secondary school, and which is not
an adult-only retail establishment.” §§ 21.04(5)(a)–(b).
The cigar regulations that are still at issue provide:
“(1) Retail Sales Practices. Except as otherwise pro-
vided in [§ 22.06(4)], it shall be an unfair or deceptive act
or practice for any person who sells or distributes cigars
or little cigars directly to consumers within Massachu-
setts to engage in any of the following practices:
“(a) sampling of cigars or little cigars or promotional
give-aways of cigars or little cigars.” § 21.06(1)(a).
“(2) Retail Outlet Sales Practices. Except as other-
wise provided in [§ 22.06(4)], it shall be an unfair or de-
ceptive act or practice for any person who sells or dis-
tributes cigars or little cigars through a retail outlet
located within Massachusetts to engage in any of the
following retail outlet sales practices:
. . . . .
“(c) Using self-service displays of cigars or little cigars;
“(d) Failing to place cigars and little cigars out of the
reach of all consumers, and in a location accessible only
to outlet personnel.” §§ 22.06(2)(c)–(d).
“(5) Advertising Restrictions. Except as provided in
[§ 22.06(6)], it shall be an unfair or deceptive act or prac-
tice for any manufacturer, distributor or retailer to en-
gage in any of the following practices:

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536 LORILLARD TOBACCO CO. v. REILLY
Opinion of the Court
“(a) Outdoor advertising of cigars or little cigars, includ-
ing advertising in enclosed stadiums and advertising
from within a retail establishment that is directed to-
ward or visible from the outside of the establishment,
in any location within a 1,000 foot radius of any public
playground, playground area in a public park, elemen-
tary school or secondary school;
“(b) Point-of-sale advertising of cigars or little cigars
any portion of which is placed lower than five feet from
the floor of any retail establishment which is located
within a one thousand foot radius of any public play-
ground, playground area in a public park, elementary
school or secondary school, and which is not an adult-
only retail establishment.” §§ 22.06(5)(a)–(b).
The term “advertisement” is defined as:
“any oral, written, graphic, or pictorial statement or
representation, made by, or on behalf of, any person who
manufactures, packages, imports for sale, distributes or
sells within Massachusetts [tobacco products], the pur-
pose or effect of which is to promote the use or sale of
the product. Advertisement includes, without limita-
tion, any picture, logo, symbol, motto, selling message,
graphic display, visual image, recognizable color or pat-
tern of colors, or any other indicia of product identifica-
tion identical or similar to, or identifiable with, those
used for any brand of [tobacco product]. This includes,
without limitation, utilitarian items and permanent or
semi-permanent fixtures with such indicia of product
identification such as lighting fixtures, awnings, display
cases, clocks and door mats, but does not include utilitar-
ian items with a volume of 200 cubic inches or less.”
§§ 21.03, 22.03.
Before the effective date of the regulations, February 1,
2000, members of the tobacco industry sued the Attorney
General in the United States District Court for the District

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of Massachusetts. Four cigarette manufacturers (Lorillard
Tobacco Company, Brown & Williamson Tobacco Corpora-
tion, R. J. Reynolds Tobacco Company, and Philip Morris In-
corporated), a maker of smokeless tobacco products (U. S.
Smokeless Tobacco Company), and several cigar manufactur-
ers and retailers claimed that many of the regulations violate
the Commerce Clause, the Supremacy Clause, the First and
Fourteenth Amendments, and Rev. Stat. § 1979, 42 U. S. C.
§ 1983. The parties sought summary judgment. 76 F.
Supp. 2d 124, 127 (1999); 84 F. Supp. 2d 180, 183 (2000).
In its first ruling, the District Court considered the Su-
premacy Clause claim that the FCLAA, 15 U. S. C. § 1331
et seq., pre-empts the cigarette advertising regulations. 76
F. Supp. 2d, at 128–134. The FCLAA prescribes the health
warnings that must appear on packaging and in advertise-
ments for cigarettes. The FCLAA contains a pre-emption
provision that prohibits a State from imposing any “require-
ment or prohibition based on smoking and health . . . with
respect to the advertising or promotion of . . . cigarettes.”
§ 1334(b). The FCLAA’s pre-emption provision does not
cover smokeless tobacco or cigars.
The District Court explained that the central question for
purposes of pre-emption is whether the regulations create a
predicate legal duty based on smoking and health. The
court reasoned that to read the pre-emption provision to pro-
scribe any state advertising regulation enacted due to health
concerns about smoking would expand Congress’ purpose be-
yond a reasonable scope and leave States powerless to regu-
late in the area. 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 read-
ing “Tobacco Products Sold Here,” 940 Code of Mass. Regs.
§ 21.04(6) (2000), was pre-empted by the FCLAA.

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In a separate ruling, the District Court considered the
claim that the Attorney General’s regulations violate the
First Amendment. 84 F. Supp. 2d, at 183–196. Rejecting
petitioners’ argument that strict scrutiny should apply, the
court applied the four-part test of Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U. S. 557
(1980), for commercial speech. The court reasoned that the
Attorney General had provided an adequate basis for regu-
lating cigars and smokeless tobacco as well as cigarettes be-
cause of the similarities among the products. The court
held that the outdoor advertising regulations, which prohibit
outdoor advertising within 1,000 feet of a school or play-
ground, do not violate the First Amendment because they
advance a substantial government interest and are narrowly
tailored to suppress no more speech than necessary. The
court concluded that the sales practices regulations, which
restrict the location and distribution of tobacco products,
survive scrutiny because they do not implicate a significant
speech interest. The court invalidated the point-of-sale ad-
vertising regulations, which require that indoor advertising
be placed no lower than five feet from the floor, finding that
the Attorney General had not provided sufficient justification
for that restriction. The District Court’s ruling with re-
spect to the cigar warning requirements and the Commerce
Clause is not before this Court.
The United States Court of Appeals for the First Circuit
issued a stay pending appeal, App. 8–9, and affirmed in part
and reversed in part the District Court’s judgment, Consol-
idated Cigar Corp. v. Reilly, 218 F. 3d 30 (2000). 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 First Circuit was persuaded
by the reasoning of the Second and Seventh Circuits, which
had concluded that the FCLAA’s pre-emption provision is
ambiguous, and held that the provision pre-empts regula-

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tions of the content, but not the location, of cigarette adver-
tising. See Greater New York Metropolitan Food Council,
Inc. v. Giuliani, 195 F. 3d 100, 104–110 (CA2 1999); Federa-
tion of Advertising Industry Representatives, Inc. v. Chi-
cago, 189 F. 3d 633, 636–640 (CA7 1999).
With respect to the First Amendment, the Court of Ap-
peals applied the Central Hudson test. 447 U. S. 557 (1980).
The court held that the outdoor advertising regulations do
not violate the First Amendment. The court concluded that
the restriction on outdoor advertising within 1,000 feet of a
school or playground directly advances the State’s substan-
tial interest in preventing tobacco use by minors. The court
also found that the outdoor advertising regulations restrict
no more speech than necessary, reasoning that the distance
chosen by the Attorney General is the sort of determination
better suited for legislative and executive decisionmakers
than courts. The Court of Appeals reversed the District
Court’s invalidation of the point-of-sale advertising regula-
tions, again concluding that the Attorney General is better
suited to determine what restrictions are necessary. The
Court of Appeals also held that the sales practices regula-
tions are valid under the First Amendment. The court
found that the regulations directly advance the State’s inter-
est in preventing minors’ access to tobacco products and that
the regulations are narrowly tailored because retailers have
a variety of other means to present the packaging of their
products and to allow customers to examine the products.
As for the argument that smokeless tobacco and cigars are
different from cigarettes, the court expressed some misgiv-
ings about equating all tobacco products, but ultimately de-
cided that the Attorney General had presented sufficient evi-
dence with respect to all three products to regulate them
similarly. The Court of Appeals’ decision with respect to
the cigar warning requirements and the Commerce Clause is
not before this Court.

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540 LORILLARD TOBACCO CO. v. REILLY
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The Court of Appeals stayed its mandate pending disposi-
tion of a petition for a writ of certiorari. App. 13. The cig-
arette manufacturers and U. S. Smokeless Tobacco Company
filed a petition, challenging the Court of Appeals’ decision
with respect to the outdoor and point-of-sale advertising reg-
ulations on pre-emption and First Amendment grounds, and
the sales practices regulations on First Amendment grounds.
The cigar companies filed a separate petition, again raising
a First Amendment challenge to the outdoor advertising,
point-of-sale advertising, and sales practices regulations.
We granted both petitions, 531 U. S. 1068 (2001), to resolve
the conflict among the Courts of Appeals with respect to
whether the FCLAA pre-empts cigarette advertising regu-
lations like those at issue here, cf. Lindsey v. Tacoma-Pierce
County Health Dept., 195 F. 3d 1065 (CA9 1999), and to de-
cide the important First Amendment issues presented in
these cases.
II
Before reaching the First Amendment issues, we must de-
cide to what extent federal law pre-empts the Attorney Gen-
eral’s regulations. The cigarette petitioners contend that
the FCLAA, 15 U. S. C. § 1331 et seq., pre-empts the Attor-
ney General’s cigarette advertising regulations.
A
Article VI, cl. 2, of the United States Constitution com-
mands that the laws of the United States “shall be the su-
preme Law of the Land; . . . any Thing in the Constitution
or Laws of any State to the Contrary notwithstanding.”
See also McCulloch v. Maryland, 4 Wheat. 316, 427 (1819)
(“It is of the very essence of supremacy, to remove all obsta-
cles to its action within its own sphere, and so to modify
every power vested in subordinate governments”). This
relatively clear and simple mandate has generated consider-
able discussion in cases where we have had to discern
whether Congress has pre-empted state action in a particu-

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lar area. State action may be foreclosed by express lan-
guage in a congressional enactment, see, e. g., Cipollone v.
Liggett Group, Inc., 505 U. S. 504, 517 (1992), by implication
from the depth and breadth of a congressional scheme that
occupies the legislative field, see, e. g., Fidelity Fed. Sav. &
Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), or by
implication because of a conflict with a congressional enact-
ment, see, e. g., Geier v. American Honda Motor Co., 529
U. S. 861, 869–874 (2000).
In the FCLAA, Congress has crafted a comprehensive
federal scheme governing the advertising and promotion of
cigarettes. The FCLAA’s pre-emption provision provides:
“(a) Additional statements
“No statement relating to smoking and health, other
than the statement required by section 1333 of this title,
shall be required on any cigarette package.
“(b) State regulations
“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.” 15 U. S. C. § 1334.
The FCLAA’s pre-emption provision does not cover smoke-
less tobacco or cigars.
In these cases, our task is to identify the domain expressly
pre-empted, see Cipollone, supra, at 517, because “an ex-
press definition of the pre-emptive reach of a statute . . .
supports a reasonable inference . . . that Congress did not
intend to pre-empt other matters,” Freightliner Corp. v.
Myrick, 514 U. S. 280, 288 (1995). Congressional purpose is
the “ultimate touchstone” of our inquiry. Cipollone, supra,
at 516 (internal quotation marks omitted). Because “federal
law is said to bar state action in [a] fiel[d] of traditional state
regulation,” namely, advertising, see Packer Corp. v. Utah,
285 U. S. 105, 108 (1932), we “wor[k] on the assumption that

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the historic police powers of the States [a]re not to be super-
seded by the Federal Act unless that [is] the clear and mani-
fest purpose of Congress.” California Div. of Labor Stand-
ards Enforcement v. Dillingham Constr., N. A., Inc., 519
U. S. 316, 325 (1997) (internal quotation marks omitted).
See also Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996).
Our analysis begins with the language of the statute.
Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438 (1999).
In the pre-emption provision, Congress unequivocally pre-
cludes the requirement of any additional statements on ciga-
rette packages beyond those provided in § 1333. 15 U. S. C.
§ 1334(a). Congress further precludes States or localities
from imposing any requirement or prohibition based on
smoking and health with respect to the advertising and pro-
motion of cigarettes. § 1334(b). Without question, the sec-
ond clause is more expansive than the first; it employs far
more sweeping language to describe the state action that is
pre-empted. We must give meaning to each element of the
pre-emption provision. We are aided in our interpretation
by considering the predecessor pre-emption provision and
the circumstances in which the current language was
adopted. See Medtronic, supra, at 486; McCarthy v. Bron-
son, 500 U. S. 136, 139 (1991); K mart Corp. v. Cartier, Inc.,
486 U. S. 281, 291 (1988).
In 1964, the groundbreaking Report of the Surgeon Gener-
al’s Advisory Committee on Smoking and Health concluded
that “[c]igarette smoking is a health hazard of sufficient im-
portance in the United States to warrant appropriate reme-
dial action.” Department of Health, Education, and Wel-
fare, U. S. Surgeon General’s Advisory Committee, Smoking
and Health 33. In 1965, Congress enacted the FCLAA as a
proactive measure in the face of impending regulation by
federal agencies and the States. Pub. L. 89–92, 79 Stat. 282.
See also Cipollone, supra, at 513–515. The purpose of the
FCLAA was twofold: to inform the public adequately about
the hazards of cigarette smoking, and to protect the national

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economy from interference due to diverse, nonuniform, and
confusing cigarette labeling and advertising regulations with
respect to the relationship between smoking and health.
Pub. L. 89–92, § 2. The FCLAA prescribed a label for ciga-
rette packages: “Caution: Cigarette Smoking May Be Haz-
ardous to Your Health.” § 4. The FCLAA also required
the Secretary of Health, Education, and Welfare (HEW) and
the Federal Trade Commission (FTC) to report annually to
Congress about the health consequences of smoking and the
advertising and promotion of cigarettes. § 5.
Section 5 of the FCLAA included a pre-emption provision
in which “Congress spoke precisely and narrowly.” Cipol-
lone, supra, at 518. Subsection (a) prohibited any require-
ment of additional statements on cigarette packaging. Sub-
section (b) provided that “[n]o statement relating to smoking
and health shall be required in the advertising of any ciga-
rettes the packages of which are labeled in conformity with
the provisions of this Act.” Section 10 of the FCLAA set a
termination date of July 1, 1969, for these provisions. As
we have previously explained, “on their face, [the pre-
emption] provisions merely prohibited state and federal
rulemaking bodies from mandating particular cautionary
statements on cigarette labels [subsection (a)] or in ciga-
rette advertisements [subsection (b)].” Cipollone, supra, at
518.
The FCLAA was enacted with the expectation that Con-
gress would reexamine it in 1969 in light of the developing
information about cigarette smoking and health. H. R. Rep.
No. 586, 89th Cong., 1st Sess., 6 (1965); 111 Cong. Rec. 16541
(1965). In the intervening years, Congress received reports
and recommendations from the HEW Secretary and the
FTC. S. Rep. No. 91–566, pp. 2–6 (1969). The HEW Secre-
tary recommended that Congress strengthen the warning,
require the warning on all packages and in advertisements,
and publish tar and nicotine levels on packages and in adver-
tisements. Id., at 4. The FTC made similar and additional

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recommendations. The FTC sought a complete ban on radio
and television advertising, a requirement that broadcasters
devote time for health hazard announcements concerning
smoking, and increased funding for public education and re-
search about smoking. Id., at 6. The FTC urged Congress
not to continue to prevent federal agencies from regulating
cigarette advertising. Id., at 10. In addition, the Federal
Communications Commission (FCC) had concluded that ad-
vertising which promoted the use of cigarettes created a
duty in broadcast stations to provide information about the
hazards of cigarette smoking. Id., at 6–7.
In 1969, House and Senate committees held hearings
about the health effects of cigarette smoking and advertis-
ing by the cigarette industry. The bill that emerged from
the House of Representatives strengthened the warning
and maintained the pre-emption provision. The Senate
amended that bill, adding the ban on radio and television
advertising, and changing the pre-emption language to its
present form. H. R. Conf. Rep. No. 91–897, pp. 4–5 (1970).
The final result was the Public Health Cigarette Smoking
Act of 1969, in which Congress, following the Senate’s
amendments, made three significant changes to the FCLAA.
Pub. L. 91–222, § 2, 84 Stat. 87. First, Congress drafted a
new label that read: “Warning: The Surgeon General Has
Determined That Cigarette Smoking Is Dangerous to Your
Health.” FCLAA, § 4. Second, Congress declared it un-
lawful to advertise cigarettes on any medium of electronic
communication subject to the jurisdiction of the FCC. § 6.
Finally, Congress enacted the current pre-emption provision,
which proscribes any “requirement or prohibition based on
smoking and health . . . imposed under State law with re-
spect to the advertising or promotion” of cigarettes. § 5(b).
The new subsection (b) did not pre-empt regulation by fed-
eral agencies, freeing the FTC to impose warning require-
ments in cigarette advertising. See Cipollone, 505 U. S., at
515. The new pre-emption provision, like its predecessor,
only applied to cigarettes, and not other tobacco products.

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In 1984, Congress again amended the FCLAA in the Com-
prehensive Smoking Education Act. Pub. L. 98–474, 98
Stat. 2200. The purpose of the Act was to “provide a new
strategy for making Americans more aware of any adverse
health effects of smoking, to assure the timely and wide-
spread dissemination of research findings and to enable indi-
viduals to make informed decisions about smoking.” § 2.
The Act established a series of warnings to appear on a ro-
tating basis on cigarette packages and in cigarette advertis-
ing, § 4, and directed the Health and Human Services Secre-
tary to create and implement an educational program about
the health effects of cigarette smoking, § 3.
The FTC has continued to report on trade practices in the
cigarette industry. In 1999, the first year since the master
settlement agreement, the FTC reported that the cigarette
industry expended $8.24 billion on advertising and promo-
tions, the largest expenditure ever. FTC, Cigarette Report
for 1999, p. 1 (2000). Substantial increases were found in
point-of-sale promotions, payments made to retailers to facil-
itate sales, and retail offers such as buy one, get one free,
or product giveaways. Id., at 4–5. Substantial decreases,
however, were reported for outdoor advertising and transit
advertising. Id., at 2. Congress and federal agencies con-
tinue to monitor advertising and promotion practices in the
cigarette industry.
The scope and meaning of the current pre-emption provi-
sion become clearer once we consider the original pre-
emption language and the amendments to the FCLAA.
Without question, “the plain language of the pre-emption
provision in the 1969 Act is much broader.” Cipollone, 505
U. S., at 520. Rather than preventing only “statements,”
the amended provision reaches all “requirement[s] or
prohibition[s] . . . imposed under State law.” And, although
the former statute reached only statements “in the advertis-
ing,” the current provision governs “with respect to the ad-
vertising or promotion” of cigarettes. See ibid. Congress
expanded the pre-emption provision with respect to the

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States, and at the same time, it allowed the FTC to regulate
cigarette advertising. Congress also prohibited cigarette
advertising in electronic media altogether. Viewed in light
of the context in which the current pre-emption provision
was adopted, we must determine whether the FCLAA pre-
empts Massachusetts’ regulations governing outdoor and
point-of-sale advertising of cigarettes.
B
The Court of Appeals acknowledged that the FCLAA
pre-empts any “requirement or prohibition based on smoking
and health . . . with respect to the advertising or promotion
of . . . cigarettes,” 15 U. S. C. § 1334(b), but concluded that
the FCLAA does not nullify Massachusetts’ cigarette adver-
tising regulations. The court concentrated its analysis on
whether the regulations are “with respect to” advertising
and promotion, relying on two of its sister Circuits to con-
clude that the FCLAA only pre-empts regulations of the
content of cigarette advertising. The Court of Appeals also
reasoned that the Attorney General’s regulations are a form
of zoning, a traditional area of state power; therefore the
presumption against pre-emption applied.
The cigarette petitioners maintain that the Court of Ap-
peals’ “with respect to” analysis is inconsistent with the
FCLAA’s statutory text and legislative history, and gives
the States license to prohibit almost all cigarette advertising.
Petitioners also maintain that there is no basis for construing
the pre-emption provision to prohibit only content-based ad-
vertising regulations.
Although they support the Court of Appeals’ result, the
Attorney General and United States as amicus curiae do not
fully endorse that court’s textual analysis of the pre-emption
provision. Instead, they assert that the cigarette advertis-
ing regulations are not pre-empted because they are not
“based on smoking and health.” The Attorney General and

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the United States also contend that the regulations are not
pre-empted because they do not prescribe the content of cig-
arette advertising and they fall squarely within the State’s
traditional powers to control the location of advertising and
to protect the welfare of children.
Turning first to the language in the pre-emption provision
relied upon by the Court of Appeals, we reject the notion
that the Attorney General’s cigarette advertising regulations
are not “with respect to” advertising and promotion. We
disagree with the Court of Appeals’ analogy to the Employee
Retirement Income Security Act of 1974 (ERISA). In some
cases concerning ERISA’s pre-emption of state law, the
Court has had to decide whether a particular state law “re-
lates to” an employee benefit plan covered by ERISA even
though the state law makes no express reference to such a
plan. See, e. g., California Div. of Labor Standards En-
forcement v. Dillingham Constr., N. A., Inc., 519 U. S., at
324–325. Here, however, there is no question about an indi-
rect relationship between the regulations and cigarette ad-
vertising because the regulations expressly target cigarette
advertising. 940 Code of Mass. Regs. § 21.04(5) (2000).
Before this Court, the Attorney General focuses on a dif-
ferent phrase in the pre-emption provision: “based on smok-
ing and health.” The Attorney General argues that the cig-
arette advertising regulations are not “based on smoking
and health,” because they do not involve health-related con-
tent in cigarette advertising but instead target youth expo-
sure to cigarette advertising. To be sure, Members of this
Court have debated the precise meaning of “based on smok-
ing and health,” see Cipollone, supra, at 529, n. 7 (plurality
opinion), but we cannot agree with the Attorney General’s
narrow construction of the phrase.
As Congress enacted the current pre-emption provision,
Congress did not concern itself solely with health warnings
for cigarettes. In the 1969 amendments, Congress not only

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enhanced its scheme to warn the public about the hazards
of cigarette smoking, but also sought to protect the public,
including youth, from being inundated with images of ciga-
rette smoking in advertising. In pursuit of the latter goal,
Congress banned electronic media advertising of cigarettes.
And to the extent that Congress contemplated additional
targeted regulation of cigarette advertising, it vested that
authority in the FTC.
The context in which Congress crafted the current pre-
emption provision leads us to conclude that Congress prohib-
ited state cigarette advertising regulations motivated by
concerns about smoking and health. Massachusetts has
attempted to address the incidence of underage cigarette
smoking by regulating advertising, see 940 Code of Mass.
Regs. § 21.01 (2000), much like Congress’ ban on cigarette
advertising in electronic media. At bottom, the concern
about youth exposure to cigarette advertising is intertwined
with the concern about cigarette smoking and health. Thus
the Attorney General’s attempt to distinguish one concern
from the other must be rejected.
The Attorney General next claims that the State’s outdoor
and point-of-sale advertising regulations for cigarettes are
not pre-empted because they govern the location, and not
the content, of advertising. This is also Justice Stevens’
main point with respect to pre-emption. Post, at 595 (opin-
ion concurring in part, concurring in judgment in part, and
dissenting in part).
The content versus location distinction has some surface
appeal. The pre-emption provision immediately follows the
section of the FCLAA that prescribes warnings. See 15
U. S. C. §§ 1333, 1334. The pre-emption provision itself re-
fers to cigarettes “labeled in conformity with” the statute.
§ 1334(b). But the content/location distinction cannot be
squared with the language of the pre-emption provision,
which reaches all “requirements” and “prohibitions” “im-
posed under State law.” A distinction between the content

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of advertising and the location of advertising in the FCLAA
also cannot be reconciled with Congress’ own location-based
restriction, which bans advertising in electronic media, but
not elsewhere. See § 1335. We are not at liberty to pick
and choose which provisions in the legislative scheme we will
consider, see post, at 596, n. 5 (opinion of Stevens, J.), but
must examine the FCLAA as a whole.
Moreover, any distinction between the content and loca-
tion of cigarette advertising collapses once the implications
of that approach are fully considered. At oral argument, the
Attorney General was pressed to explain what types of state
regulations of cigarette advertising, in his view, are pre-
empted by the FCLAA. The Attorney General maintained
that a state law that required cigarette retailers to remove
the word “tobacco” from advertisements, or required ciga-
rette billboards to be blank, would be pre-empted if it were
a regulation of “health-related content.” Tr. of Oral Arg. 41,
42. The Attorney General also maintained, however, that a
complete ban on all cigarette advertising would not be pre-
empted because Congress did not intend to invade local con-
trol over zoning. Id., at 42–44. The latter position clearly
follows from the factual distinction between content and lo-
cation, but it finds no support in the text of the FCLAA’s
pre-emption provision. We believe that Congress wished to
ensure that “a State could not do through negative mandate
(e. g., banning all cigarette advertising) that which it already
was forbidden to do through positive mandate (e. g., man-
dating particular cautionary statements).” Cipollone, 505
U. S., at 539 (Blackmun, J., joined by Kennedy and Souter,
JJ., concurring in part and dissenting in part). See also
Vango Media, Inc. v. New York, 34 F. 3d 68 (CA2 1994) (hold-
ing pre-empted a regulation that required one public health
message for every four cigarette advertisements).
Justice Stevens, post, at 595–598, maintains that Con-
gress did not intend to displace state regulation of the loca-
tion of cigarette advertising. There is a critical distinction,

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however, between generally applicable zoning regulations,
see infra, at 551–552, and regulations targeting cigarette
advertising. The latter type of regulation, which is inev-
itably motivated by concerns about smoking and health,
squarely contradicts the FCLAA. The FCLAA’s compre-
hensive warnings, advertising restrictions, and pre-emption
provision would make little sense if a State or locality could
simply target and ban all cigarette advertising.
Justice Stevens finds it ironic that we conclude that
“federal law precludes States and localities from protecting
children from dangerous products within 1,000 feet of a
school,” in light of our prior conclusion that the “Federal
Government lacks the constitutional authority to impose a
similarly motivated ban” in United States v. Lopez, 514 U. S.
549 (1995). Post, at 598–599, n. 8. Our holding is not as
broad as Justice Stevens states; we hold only that the
FCLAA pre-empts state regulations targeting cigarette ad-
vertising. States remain free to enact generally applicable
zoning regulations, and to regulate conduct with respect to
cigarette use and sales. Infra, at 552. The reference to
Lopez is also inapposite. In Lopez, we held that Congress
exceeded the limits of its Commerce Clause power in the
Gun-Free School Zones Act of 1990, which made it a federal
crime to possess a firearm in a school zone. 514 U. S., at
553–568. These cases, by contrast, concern the Supremacy
Clause and the doctrine of pre-emption as applied in a case
where Congress expressly precluded certain state regula-
tions of cigarette advertising. Massachusetts did not raise
a constitutional challenge to the FCLAA, and we are not
confronted with whether Congress exceeded its constitution-
ally delegated authority in enacting the FCLAA.
In sum, we fail to see how the FCLAA and its pre-emption
provision permit a distinction between the specific concern
about minors and cigarette advertising and the more general
concern about smoking and health in cigarette advertising,
especially in light of the fact that Congress crafted a legisla-

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tive solution for those very concerns. We also conclude that
a distinction between state regulation of the location as op-
posed to the content of cigarette advertising has no founda-
tion in the text of the pre-emption provision. Congress
pre-empted state cigarette advertising regulations like the
Attorney General’s because they would upset federal legisla-
tive choices to require specific warnings and to impose the
ban on cigarette advertising in electronic media in order to
address concerns about smoking and health. Accordingly,
we hold that the Attorney General’s outdoor and point-of-
sale advertising regulations targeting cigarettes are pre-
empted by the FCLAA.
C
Although the FCLAA prevents States and localities from
imposing special requirements or prohibitions “based on
smoking and health” “with respect to the advertising or pro-
motion” of cigarettes, that language still leaves significant
power in the hands of States to impose generally applicable
zoning regulations and to regulate conduct. As we noted
in Cipollone, “each phrase within [the provision] limits the
universe of [state action] pre-empted by the statute.” 505
U. S., at 524 (plurality opinion).
For instance, the FCLAA does not restrict a State or lo-
cality’s ability to enact generally applicable zoning restric-
tions. We have recognized that state interests in traffic
safety and esthetics may justify zoning regulations for adver-
tising. See Metromedia, Inc. v. San Diego, 453 U. S. 490,
507–508 (1981). See also St. Louis Poster Advertising Co.
v. St. Louis, 249 U. S. 269, 274 (1919); Thomas Cusack Co. v.
Chicago, 242 U. S. 526, 529–531 (1917). Although Congress
has taken into account the unique concerns about cigarette
smoking and health in advertising, there is no indication that
Congress intended to displace local community interests in
general regulations of the location of billboards or large mar-
quee advertising, or that Congress intended cigarette adver-
tisers to be afforded special treatment in that regard. Re-

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strictions on the location and size of advertisements that
apply to cigarettes on equal terms with other products ap-
pear to be outside the ambit of the pre-emption provision.
Such restrictions are not “based on smoking and health.”
The FCLAA also does not foreclose all state regulation of
conduct as it relates to the sale or use of cigarettes. The
FCLAA’s pre-emption provision explicitly governs state reg-
ulations of “advertising or promotion.” * Accordingly, the
FCLAA does not pre-empt state laws prohibiting cigarette
sales to minors. To the contrary, there is an established
congressional policy that supports such laws; Congress has
required States to prohibit tobacco sales to minors as a con-
dition of receiving federal block grant funding for substance
abuse treatment activities. 106 Stat. 394, 388, 42 U. S. C.
§§ 300x–26(a)(1), 300x–21.
In Massachusetts, it is illegal to sell or distribute tobacco
products to persons under the age of 18. Mass. Gen. Laws,
ch. 270, § 6 (2000). Having prohibited the sale and distribu-
tion of tobacco products to minors, the State may prohibit
common inchoate offenses that attach to criminal conduct,
such as solicitation, conspiracy, and attempt. Cf. Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New
York, 447 U. S., at 563–564; Carey v. Population Servs. Int’l,
431 U. S. 678, 701 (1977); Virginia Bd. of Pharmacy v. Vir-
ginia Citizens Consumer Council, Inc., 425 U. S. 748, 772
(1976); 60 Fed. Reg. 41330–41332 (1995) (citing evidence that
industry may be attempting to induce individuals under 18
to smoke cigarettes). States and localities also have at their
disposal other means of regulating conduct to ensure that
minors do not obtain cigarettes. See Part III–D, infra.
*The Senate Report explained that the pre-emption provision “would in
no way affect the power of any State or political subdivision of any State
with respect to the taxation or the sale of cigarettes to minors, or the
prohibition of smoking in public buildings, or similar police regulations.
It is limited entirely to State or local requirements or prohibitions in the
advertising of cigarettes.” S. Rep. No. 91–566, p. 12 (1969).

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D
The smokeless tobacco petitioners argue that if the State’s
outdoor and point-of-sale advertising regulations for ciga-
rettes are pre-empted, then the same advertising regulations
with respect to smokeless tobacco must be invalidated be-
cause they cannot be severed from the cigarette provisions.
Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00–
596 and 00–597, p. 4, n. 5. The District Court did not reach
the severability issue with respect to the advertising provi-
sions that are before this Court. 76 F. Supp. 2d, at 134,
n. 11. The Court of Appeals also did not reach severability
because that court likewise concluded that the cigarette ad-
vertising regulations were not pre-empted. 218 F. 3d, at 37,
n. 3. We decline to reach an issue that was not decided
below. National Collegiate Athletic Assn. v. Smith, 525
U. S. 459, 470 (1999).
III
By its terms, the FCLAA’s pre-emption provision only
applies to cigarettes. Accordingly, we must evaluate the
smokeless tobacco and cigar petitioners’ First Amendment
challenges to the State’s outdoor and point-of-sale advertis-
ing regulations. The cigarette petitioners did not raise a
pre-emption challenge to the sales practices regulations.
Thus, we must analyze the cigarette as well as the smoke-
less tobacco and cigar petitioners’ claim that certain sales
practices regulations for tobacco products violate the First
Amendment.
A
For over 25 years, the Court has recognized that commer-
cial speech does not fall outside the purview of the First
Amendment. See, e. g., Virginia Bd. of Pharmacy, supra,
at 762. Instead, the Court has afforded commercial speech
a measure of First Amendment protection “ ‘commensurate’ ”
with its position in relation to other constitutionally guaran-
teed expression. See, e. g., Florida Bar v. Went For It, Inc.,

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515 U. S. 618, 623 (1995) (quoting Board of Trustees of State
Univ. of N. Y. v. Fox, 492 U. S. 469, 477 (1989)). In recogni-
tion of the “distinction between speech proposing a commer-
cial transaction, which occurs in an area traditionally subject
to government regulation, and other varieties of speech,”
Central Hudson, supra, at 562 (internal quotation marks
omitted), we developed a framework for analyzing regula-
tions of commercial speech that is “substantially similar” to
the test for time, place, and manner restrictions, Board of
Trustees of State Univ. of N. Y. v. Fox, supra, at 477. The
analysis contains four elements:
“At the outset, we must determine whether the expres-
sion is protected by the First Amendment. For com-
mercial speech to come within that provision, it at least
must concern lawful activity and not be misleading.
Next, we ask whether the asserted governmental inter-
est is substantial. If both inquiries yield positive an-
swers, we must determine whether the regulation di-
rectly advances the governmental interest asserted, and
whether it is not more extensive than is necessary to
serve that interest.” Central Hudson, supra, at 566.
Petitioners urge us to reject the Central Hudson analysis
and apply strict scrutiny. They are not the first litigants to
do so. See, e. g., Greater New Orleans Broadcasting Assn.,
Inc. v. United States, 527 U. S. 173, 184 (1999). Admittedly,
several Members of the Court have expressed doubts about
the Central Hudson analysis and whether it should apply in
particular cases. See, e. g., Greater New Orleans, supra, at
197 (Thomas, J., concurring in judgment); 44 Liquormart,
Inc. v. Rhode Island, 517 U. S. 484, 501, 510–514 (1996) ( joint
opinion of Stevens, Kennedy, and Ginsburg, JJ.); id., at
517 (Scalia, J., concurring in part and concurring in judg-
ment); id., at 518 (Thomas, J., concurring in part and concur-
ring in judgment). But here, as in Greater New Orleans,
we see “no need to break new ground. Central Hudson, as

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applied in our more recent commercial speech cases, provides
an adequate basis for decision.” 527 U. S., at 184.
Only the last two steps of Central Hudson’s four-part anal-
ysis are at issue here. The Attorney General has assumed
for purposes of summary judgment that petitioners’ speech
is entitled to First Amendment protection. 218 F. 3d, at 43;
84 F. Supp. 2d, at 185–186. With respect to the second step,
none of the petitioners contests the importance of the State’s
interest in preventing the use of tobacco products by mi-
nors. Brief for Petitioners Lorillard Tobacco Co. et al. in
No. 00–596, p. 41; Brief for Petitioner U. S. Smokeless To-
bacco Co. in Nos. 00–596 and 00–597, at 16; Brief for Petition-
ers Altadis U. S. A. Inc. et al. in No. 00–597, p. 8.
The third step of Central Hudson concerns the relation-
ship between the harm that underlies the State’s interest
and the means identified by the State to advance that inter-
est. It requires that
“the speech restriction directly and materially advanc[e]
the asserted governmental interest. ‘This burden is
not satisfied by mere speculation or conjecture; rather,
a governmental body seeking to sustain a restriction on
commercial speech must demonstrate that the harms it
recites are real and that its restriction will in fact allevi-
ate them to a material degree.’ ” Greater New Orleans,
supra, at 188 (quoting Edenfield v. Fane, 507 U. S. 761,
770–771 (1993)).
We do not, however, require that “empirical data come . . .
accompanied by a surfeit of background information. . . . [W]e
have permitted litigants to justify speech restrictions by
reference to studies and anecdotes pertaining to different
locales altogether, or even, in a case applying strict scru-
tiny, to justify restrictions based solely on history, consensus,
and ‘simple common sense.’ ” Florida Bar v. Went For It,
Inc., supra, at 628 (citations and internal quotation marks
omitted).

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The last step of the Central Hudson analysis “comple-
ments” the third step, “asking whether the speech restric-
tion is not more extensive than necessary to serve the inter-
ests that support it.” Greater New Orleans, supra, at 188.
We have made it clear that “the least restrictive means” is
not the standard; instead, the case law requires a reasonable
“ ‘fit between the legislature’s ends and the means chosen to
accomplish those ends, . . . a means narrowly tailored to
achieve the desired objective.’ ” Went For It, Inc., supra, at
632 (quoting Board of Trustees of State Univ. of N. Y. v. Fox,
supra, at 480). Focusing on the third and fourth steps of
the Central Hudson analysis, we first address the outdoor
advertising and point-of-sale advertising regulations for
smokeless tobacco and cigars. We then address the sales
practices regulations for all tobacco products.
B
The outdoor advertising regulations prohibit smokeless
tobacco or cigar advertising within a 1,000-foot radius
of a school or playground. 940 Code of Mass. Regs.
§§ 21.04(5)(a), 22.06(5)(a) (2000). The District Court and
Court of Appeals concluded that the Attorney General had
identified a real problem with underage use of tobacco prod-
ucts, that limiting youth exposure to advertising would com-
bat that problem, and that the regulations burdened no more
speech than necessary to accomplish the State’s goal. 218
F. 3d, at 44–53; 84 F. Supp. 2d, at 186–193. The smokeless
tobacco and cigar petitioners take issue with all of these
conclusions.
1
The smokeless tobacco and cigar petitioners contend that
the Attorney General’s regulations do not satisfy Central
Hudson’s third step. They maintain that although the At-
torney General may have identified a problem with underage
cigarette smoking, he has not identified an equally severe
problem with respect to underage use of smokeless tobacco

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or cigars. The smokeless tobacco petitioner emphasizes the
“lack of parity” between cigarettes and smokeless tobacco.
Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00–
596 and 00–597, at 19; Reply Brief for Petitioner U. S.
Smokeless Tobacco Co. in Nos. 00–596 and 00–597, pp. 4, 10–
11. The cigar petitioners catalog a list of differences be-
tween cigars and other tobacco products, including the char-
acteristics of the products and marketing strategies. Brief
for Petitioners Altadis U. S. A. Inc. et al. in No. 00–597,
at 9–11. The petitioners finally contend that the Attorney
General cannot prove that advertising has a causal link to
tobacco use such that limiting advertising will materially al-
leviate any problem of underage use of their products. Brief
for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00–596
and 00–597, at 20–22; Brief for Petitioners Altadis U. S. A.
Inc. et al. in No. 00–597, at 9–16.
In previous cases, we have acknowledged the theory that
product advertising stimulates demand for products, while
suppressed advertising may have the opposite effect. See
Rubin, 514 U. S., at 487; United States v. Edge Broadcasting
Co., 509 U. S. 418, 434 (1993); Central Hudson, 447 U. S., at
568–569. The Attorney General cites numerous studies to
support this theory in the case of tobacco products.
The Attorney General relies in part on evidence gathered
by the Food and Drug Administration (FDA) in its attempt
to regulate the advertising of cigarettes and smokeless to-
bacco. See Regulations Restricting the Sale and Distribu-
tion of Cigarettes and Smokeless Tobacco Products to Pro-
tect Children and Adolescents, FDA Proposed Rule, 60 Fed.
Reg. 41314 (1995); Regulations Restricting the Sale and Dis-
tribution of Cigarettes and Smokeless Tobacco to Protect
Children and Adolescents, FDA Final Rule, 61 Fed. Reg.
44396 (1996). The FDA promulgated the advertising regu-
lations after finding that the period prior to adulthood is
when an overwhelming majority of Americans first decide to
use tobacco products, and that advertising plays a crucial

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558 LORILLARD TOBACCO CO. v. REILLY
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role in that decision. Id., at 44398–44399. We later held
that the FDA lacks statutory authority to regulate tobacco
products. See FDA v. Brown & Williamson Tobacco Corp.,
529 U. S. 120 (2000). Nevertheless, the Attorney General
relies on the FDA’s proceedings and other studies to support
his decision that advertising affects demand for tobacco
products. Cf. Erie v. Pap’s A. M., 529 U. S. 277, 296 (2000)
(plurality opinion) (cities and localities may rely on evidence
from other jurisdictions to demonstrate harmful secondary
effects of adult entertainment and to justify regulation);
Barnes v. Glen Theatre, Inc., 501 U. S. 560, 583–584 (1991)
(Souter, J., concurring in judgment) (same); Renton v. Play-
time Theatres, Inc., 475 U. S. 41, 50–52 (1986) (same). See
also Nixon v. Shrink Missouri Government PAC, 528 U. S.
377, 393, and n. 6 (2000) (discussing evidence of corruption
and the appearance of corruption in campaign finance).
In its rulemaking proceeding, the FDA considered several
studies of tobacco advertising and trends in the use of vari-
ous tobacco products. The Surgeon General’s report and
the Institute of Medicine’s report found that “there is suffi-
cient evidence to conclude that advertising and labeling play
a significant and important contributory role in a young per-
son’s decision to use cigarettes or smokeless tobacco prod-
ucts.” 60 Fed. Reg. 41332. See also Pierce et al., Tobacco
Industry Promotion of Cigarettes and Adolescent Smoking,
279 JAMA 511, 514 (1998).
For instance, children smoke fewer brands of cigarettes
than adults, and those choices directly track the most heavily
advertised brands, unlike adult choices, which are more dis-
persed and related to pricing. FDA Proposed Rule, 60 Fed.
Reg. 41332. Another study revealed that 72% of 6 year olds
and 52% of children ages 3 to 6 recognized “Joe Camel,” the
cartoon anthropomorphic symbol of R. J. Reynolds’ Camel
brand cigarettes. Id., at 41333. After the introduction of
Joe Camel, Camel cigarettes’ share of the youth market rose
from 4% to 13%. Id., at 41330. The FDA also identified

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trends in tobacco consumption among certain populations,
such as young women, that correlated to the introduction and
marketing of products geared toward that population. Id.,
at 41333.
The FDA also made specific findings with respect to
smokeless tobacco. The FDA concluded that “[t]he recent
and very large increase in the use of smokeless tobacco prod-
ucts by young people and the addictive nature of these prod-
ucts has persuaded the agency that these products must be
included in any regulatory approach that is designed to help
prevent future generations of young people from becoming
addicted to nicotine-containing tobacco products.” Id., at
41318. Studies have analyzed smokeless tobacco use by
young people, discussing trends based on gender, school
grade, and locale. See, e. g., Boyd et al., Use of Smokeless
Tobacco among Children and Adolescents in the United
States, 16 Preventative Medicine 402–418 (1987), Record,
Doc. No. 38, Exh. 63.
Researchers tracked a dramatic shift in patterns of smoke-
less tobacco use from older to younger users over the past
30 years. See, e. g., FDA Proposed Rule, 60 Fed. Reg.
41317; Tomar, Giovano, & Erickson, Smokeless tobacco brand
preference and brand switching among US adolescents and
young adults, 4 Tobacco Control 67 (1995), Record, Doc.
No. 38, Exh. 62; Department of Health and Human Services,
Preventing Tobacco Use Among Young People: A Report of
the Surgeon General 163 (1994), Record, Doc. No. 36, Exh. 1.
In particular, the smokeless tobacco industry boosted sales
tenfold in the 1970’s and 1980’s by targeting young males.
FDA Proposed Rule, 60 Fed. Reg. 41331. See also National
Cancer Institute, Cigars: Health Effects and Trends, Smok-
ing and Tobacco Control Monograph No. 9, p. 16 (1998), Rec-
ord, Doc. No. 39, Exh. 67. Another study documented the
targeting of youth through smokeless tobacco sales and ad-
vertising techniques. Ernster, Advertising and Promotion
of Smokeless Tobacco Products, National Cancer Institute

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Monograph No. 8, pp. 87–93 (1989), Record, Doc. No. 38,
Exh. 66.
The Attorney General presents different evidence with re-
spect to cigars. There was no data on underage cigar use
prior to 1996 because the behavior was considered “uncom-
mon enough not to be worthy of examination.” Smoking
and Tobacco Control Monograph No. 9, at 13; FTC Report
to Congress: Cigar Sales and Advertising and Promotional
Expenses for Calendar Years 1996 and 1997, p. 9 (1999), Rec-
ord, Doc. No. 39, Exh. 71. In 1995, the FDA decided not to
include cigars in its attempted regulation of tobacco product
advertising, explaining that “the agency does not currently
have sufficient evidence that these products are drug deliv-
ery devices . . . . FDA has focused its investigation of its
authority over tobacco products on cigarettes and smokeless
tobacco products, and not on pipe tobacco or cigars, because
young people predominantly use cigarettes and smokeless to-
bacco products.” 60 Fed. Reg. 41322.
More recently, however, data on youth cigar use has
emerged. The National Cancer Institute concluded in its
1998 Monograph that the rate of cigar use by minors is in-
creasing and that, in some States, the cigar use rates are
higher than the smokeless tobacco use rates for minors.
Smoking and Tobacco Control Monograph No. 9, at 19, 42–51.
In its 1999 Report to Congress, the FTC concluded that “sub-
stantial numbers of adolescents are trying cigars.” FTC
Report to Congress, at 9. See also Department of Health
and Human Services, Office of Inspector General, Youth Use
of Cigars: Patterns of Use and Perceptions of Risk (1999),
Record, Doc. No. 39, Exh. 78.
Studies have also demonstrated a link between advertising
and demand for cigars. After Congress recognized the
power of images in advertising and banned cigarette adver-
tising in electronic media, television advertising of small ci-
gars “increased dramatically in 1972 and 1973,” “filled the
void left by cigarette advertisers,” and “sales . . . soared.”

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Smoking and Tobacco Control Monograph No. 9, at 24. In
1973, Congress extended the electronic media advertising
ban for cigarettes to little cigars. Little Cigar Act, Pub. L.
93–109, § 3, 87 Stat. 352, as amended, 15 U. S. C. § 1335. In
the 1990’s, cigar advertising campaigns triggered a boost in
sales. Smoking and Tobacco Control Monograph No. 9, at
215.
Our review of the record reveals that the Attorney Gen-
eral has provided ample documentation of the problem with
underage use of smokeless tobacco and cigars. In addition,
we disagree with petitioners’ claim that there is no evidence
that preventing targeted campaigns and limiting youth expo-
sure to advertising will decrease underage use of smokeless
tobacco and cigars. On this record and in the posture of
summary judgment, we are unable to conclude that the At-
torney General’s decision to regulate advertising of smoke-
less tobacco and cigars in an effort to combat the use of to-
bacco products by minors was based on mere “speculation
[and] conjecture.” Edenfield v. Fane, 507 U. S., at 770.
2
Whatever the strength of the Attorney General’s evidence
to justify the outdoor advertising regulations, however, we
conclude that the regulations do not satisfy the fourth step of
the Central Hudson analysis. The final step of the Central
Hudson analysis, the “critical inquiry in this case,” requires
a reasonable fit between the means and ends of the regula-
tory scheme. 447 U. S., at 569. The Attorney General’s
regulations do not meet this standard. The broad sweep of
the regulations indicates that the Attorney General did not
“carefully calculat[e] the costs and benefits associated with
the burden on speech imposed” by the regulations. Cincin-
nati v. Discovery Network, Inc., 507 U. S. 410, 417 (1993)
(internal quotation marks omitted).
The outdoor advertising regulations prohibit any smoke-
less tobacco or cigar advertising within 1,000 feet of schools

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or playgrounds. In the District Court, petitioners main-
tained that this prohibition would prevent advertising in
87% to 91% of Boston, Worcester, and Springfield, Massachu-
setts. 84 F. Supp. 2d, at 191. The 87% to 91% figure ap-
pears to include not only the effect of the regulations, but
also the limitations imposed by other generally applicable
zoning restrictions. See App. 161–167. The Attorney Gen-
eral disputed petitioners’ figures but “concede[d] that the
reach of the regulations is substantial.” 218 F. 3d, at 50.
Thus, the Court of Appeals concluded that the regulations
prohibit advertising in a substantial portion of the major
metropolitan areas of Massachusetts. Ibid.
The substantial geographical reach of the Attorney Gener-
al’s outdoor advertising regulations is compounded by other
factors. “Outdoor” advertising includes not only advertis-
ing located outside an establishment, but also advertising in-
side a store if that advertising is visible from outside the
store. The regulations restrict advertisements of any size
and the term advertisement also includes oral statements.
940 Code of Mass. Regs. §§ 21.03, 22.03 (2000).
In some geographical areas, these regulations would con-
stitute nearly a complete ban on the communication of truth-
ful information about smokeless tobacco and cigars to adult
consumers. The breadth and scope of the regulations, and
the process by which the Attorney General adopted the reg-
ulations, do not demonstrate a careful calculation of the
speech interests involved.
First, the Attorney General did not seem to consider the
impact of the 1,000-foot restriction on commercial speech in
major metropolitan areas. The Attorney General appar-
ently selected the 1,000-foot distance based on the FDA’s de-
cision to impose an identical 1,000-foot restriction when it
attempted to regulate cigarette and smokeless tobacco ad-
vertising. See FDA Final Rule, 61 Fed. Reg. 44399; Brief
for Respondents 45, and n. 23. But the FDA’s 1,000-foot
regulation was not an adequate basis for the Attorney Gen-

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eral to tailor the Massachusetts regulations. The degree to
which speech is suppressed—or alternative avenues for
speech remain available—under a particular regulatory
scheme tends to be case specific. See, e. g., Renton, 475
U. S., at 53–54. And a case specific analysis makes sense,
for although a State or locality may have common interests
and concerns about underage smoking and the effects of to-
bacco advertisements, the impact of a restriction on speech
will undoubtedly vary from place to place. The FDA’s regu-
lations would have had widely disparate effects nationwide.
Even in Massachusetts, the effect of the Attorney General’s
speech regulations will vary based on whether a locale is
rural, suburban, or urban. The uniformly broad sweep of
the geographical limitation demonstrates a lack of tailoring.
In addition, the range of communications restricted seems
unduly broad. For instance, it is not clear from the regula-
tory scheme why a ban on oral communications is necessary
to further the State’s interest. Apparently that restriction
means that a retailer is unable to answer inquiries about its
tobacco products if that communication occurs outdoors.
Similarly, a ban on all signs of any size seems ill suited to
target the problem of highly visible billboards, as opposed
to smaller signs. To the extent that studies have identified
particular advertising and promotion practices that appeal
to youth, tailoring would involve targeting those practices
while permitting others. As crafted, the regulations make
no distinction among practices on this basis.
The Court of Appeals recognized that the smokeless to-
bacco and cigar petitioners’ concern about the amount of
speech restricted was “valid,” but reasoned that there was
an “obvious connection to the state’s interest in protecting
minors.” 218 F. 3d, at 50. Even on the premise that Massa-
chusetts has demonstrated a connection between the outdoor
advertising regulations and its substantial interest in pre-
venting underage tobacco use, the question of tailoring re-

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564 LORILLARD TOBACCO CO. v. REILLY
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mains. The Court of Appeals failed to follow through with
an analysis of the countervailing First Amendment interests.
The State’s interest in preventing underage tobacco use is
substantial, and even compelling, but it is no less true that
the sale and use of tobacco products by adults is a legal activ-
ity. We must consider that tobacco retailers and manufac-
turers have an interest in conveying truthful information
about their products to adults, and adults have a correspond-
ing interest in receiving truthful information about tobacco
products. In a case involving indecent speech on the In-
ternet we explained that “the governmental interest in pro-
tecting children from harmful materials . . . does not justify
an unnecessarily broad suppression of speech addressed to
adults.” Reno v. American Civil Liberties Union, 521 U. S.
844, 875 (1997) (citations omitted). See, e. g., Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 74 (1983) (“The
level of discourse reaching a mailbox simply cannot be lim-
ited to that which would be suitable for a sandbox”); Butler
v. Michigan, 352 U. S. 380, 383 (1957) (“The incidence of this
enactment is to reduce the adult population . . . to reading
only what is fit for children”). As the State protects chil-
dren from tobacco advertisements, tobacco manufacturers
and retailers and their adult consumers still have a protected
interest in communication. Cf. American Civil Liberties
Union, supra, at 886–889 (O’Connor, J., concurring in judg-
ment in part and dissenting in part) (discussing the creation
of “adult zones” on the Internet).
In some instances, Massachusetts’ outdoor advertising
regulations would impose particularly onerous burdens on
speech. For example, we disagree with the Court of Ap-
peals’ conclusion that because cigar manufacturers and re-
tailers conduct a limited amount of advertising in comparison
to other tobacco products, “the relative lack of cigar adver-
tising also means that the burden imposed on cigar advertis-
ers is correspondingly small.” 218 F. 3d, at 49. If some
retailers have relatively small advertising budgets, and use

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few avenues of communication, then the Attorney General’s
outdoor advertising regulations potentially place a greater,
not lesser, burden on those retailers’ speech. Furthermore,
to the extent that cigar products and cigar advertising dif-
fer from that of other tobacco products, that difference
should inform the inquiry into what speech restrictions are
necessary.
In addition, a retailer in Massachusetts may have no
means of communicating to passersby on the street that it
sells tobacco products because alternative forms of adver-
tisement, like newspapers, do not allow that retailer to pro-
pose an instant transaction in the way that onsite advertis-
ing does. The ban on any indoor advertising that is visible
from the outside also presents problems in establishments
like convenience stores, which have unique security concerns
that counsel in favor of full visibility of the store from the
outside. It is these sorts of considerations that the Attor-
ney General failed to incorporate into the regulatory scheme.
We conclude that the Attorney General has failed to show
that the outdoor advertising regulations for smokeless to-
bacco and cigars are not more extensive than necessary to
advance the State’s substantial interest in preventing under-
age tobacco use. Justice Stevens urges that the Court
remand the case for further development of the factual rec-
ord. Post, at 601–603. We believe that a remand is inap-
propriate in these cases because the State had ample oppor-
tunity to develop a record with respect to tailoring (as it had
to justify its decision to regulate advertising), and additional
evidence would not alter the nature of the scheme before the
Court. See Greater New Orleans, 527 U. S., at 189, n. 6.
A careful calculation of the costs of a speech regulation
does not mean that a State must demonstrate that there is
no incursion on legitimate speech interests, but a speech reg-
ulation cannot unduly impinge on the speaker’s ability to
propose a commercial transaction and the adult listener’s
opportunity to obtain information about products. After

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Opinion of the Court
reviewing the outdoor advertising regulations, we find the
calculation in these cases insufficient for purposes of the
First Amendment.
C
Massachusetts has also restricted indoor, point-of-sale ad-
vertising for smokeless tobacco and cigars. Advertising
cannot be “placed lower than five feet from the floor of any
retail establishment which is located within a one thousand
foot radius of ” any school or playground. 940 Code of Mass.
Regs. §§ 21.04(5)(b), 22.06(5)(b) (2000). The District Court
invalidated these provisions, concluding that the Attorney
General had not provided a sufficient basis for regulating
indoor advertising. 84 F. Supp. 2d, at 192–193, 195. The
Court of Appeals reversed. 218 F. 3d, at 50–51. The court
explained: “We do have some misgivings about the effective-
ness of a restriction that is based on the assumption that
minors under five feet tall will not, or will less frequently,
raise their view above eye-level, but we find that such [a]
determination falls within that range of reasonableness in
which the Attorney General is best suited to pass judgment.”
Id., at 51.
We conclude that the point-of-sale advertising regulations
fail both the third and fourth steps of the Central Hudson
analysis. A regulation cannot be sustained if it “ ‘provides
only ineffective or remote support for the government’s pur-
pose,’ ” Edenfield, 507 U. S., at 770 (quoting Central Hudson,
447 U. S., at 564), or if there is “little chance” that the restric-
tion will advance the State’s goal, Greater New Orleans,
supra, at 193 (internal quotation marks omitted). As out-
lined above, the State’s goal is to prevent minors from using
tobacco products and to curb demand for that activity by
limiting youth exposure to advertising. The 5-foot rule does
not seem to advance that goal. Not all children are less than
5 feet tall, and those who are certainly have the ability to
look up and take in their surroundings.

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By contrast to Justice Stevens, post, at 604–605, we do
not believe this regulation can be construed as a mere regu-
lation of conduct under United States v. O’Brien, 391 U. S.
367 (1968). To qualify as a regulation of communicative
action governed by the scrutiny outlined in O’Brien, the
State’s regulation must be unrelated to expression. Texas
v. Johnson, 491 U. S. 397, 403 (1989). See also Erie v. Pap’s
A. M., 529 U. S., at 289–296 (plurality opinion). Here, Mas-
sachusetts’ height restriction is an attempt to regulate di-
rectly the communicative impact of indoor advertising.
Massachusetts may wish to target tobacco advertisements
and displays that entice children, much like floor-level candy
displays in a convenience store, but the blanket height re-
striction does not constitute a reasonable fit with that goal.
The Court of Appeals recognized that the efficacy of the reg-
ulation was questionable, but decided that, “[i]n any event,
the burden on speech imposed by the provision is very lim-
ited.” 218 F. 3d, at 51. There is no de minimis exception
for a speech restriction that lacks sufficient tailoring or justi-
fication. We conclude that the restriction on the height of
indoor advertising is invalid under Central Hudson’s third
and fourth prongs.
D
The Attorney General also promulgated a number of regu-
lations that restrict sales practices by cigarette, smokeless
tobacco, and cigar manufacturers and retailers. Among
other restrictions, the regulations bar the use of self-service
displays and require that tobacco products be placed out of
the reach of all consumers in a location accessible only to
salespersons. 940 Code of Mass. Regs. §§ 21.04(2)(c)–(d),
22.06(2)(c)–(d) (2000). The cigarette petitioners do not
challenge the sales practices regulations on pre-emption
grounds. Brief for Petitioners Lorillard Tobacco Co. et al.
in No. 00–596, at 5, n. 2. Two of the cigarette petitioners
(Brown & Williamson Tobacco Corporation and Lorillard To-
bacco Company), petitioner U. S. Smokeless Tobacco Com-

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Opinion of the Court
pany, and the cigar petitioners challenge the sales practices
regulations on First Amendment grounds. The cigar peti-
tioners additionally challenge a provision that prohibits sam-
pling or promotional giveaways of cigars or little cigars.
940 Code of Mass. Regs. § 22.06(1)(a) (2000).
The District Court concluded that these restrictions impli-
cate no cognizable speech interest, 84 F. Supp. 2d, at 195–196,
but the Court of Appeals did not fully adopt that reasoning.
The Court of Appeals recognized that self-service displays
“often do have some communicative commercial function,”
but noted that the restriction in the regulations “is not on
speech, but rather on the physical location of actual tobacco
products.” 218 F. 3d, at 53. The court reasoned that noth-
ing in the regulations would prevent the display of empty
tobacco product containers, so long as no actual tobacco prod-
uct was displayed, much like movie jackets at a video store.
Ibid. With respect to cigar products, the court observed
that retailers traditionally allow access to those products, so
that the consumer may make a selection on the basis of a
number of objective and subjective factors including the
aroma and feel of the cigars. Ibid. Even assuming a
speech interest, however, the court concluded that the regu-
lations were narrowly tailored to serve the State’s substan-
tial interest in preventing access to tobacco products by mi-
nors. Id., at 54. The court also noted that the restrictions
do not apply to adult-only establishments. Ibid.
Petitioners devoted little of their briefing to the sales prac-
tices regulations, and our understanding of the regulations
is accordingly limited by the parties’ submissions. As we
read the regulations, they basically require tobacco retailers
to place tobacco products behind counters and require cus-
tomers to have contact with a salesperson before they are
able to handle a tobacco product.
The cigarette and smokeless tobacco petitioners contend
that “the same First Amendment principles that require in-
validation of the outdoor and indoor advertising restrictions

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require invalidation of the display regulations at issue in this
case.” Brief for Petitioners Lorillard Tobacco Co. et al. in
No. 00–596, at 46, n. 7. See also Reply Brief for Petitioner
U. S. Smokeless Tobacco Co. in Nos. 00–596 and 00–597, at
12, n. 7. The cigar petitioners contend that self-service dis-
plays for cigars cannot be prohibited because each brand of
cigar is unique and customers traditionally have sought to
handle and compare cigars at the time of purchase. Brief
for Petitioners Altadis U. S. A. Inc. et al. in No. 00–597, at
23, n. 9; Reply Brief for Petitioners Altadis U. S. A. Inc. et al.
in No. 00–597, p. 10, n. 7.
We reject these contentions. Assuming that petitioners
have a cognizable speech interest in a particular means
of displaying their products, cf. Cincinnati v. Discovery
Network, Inc., 507 U. S. 410 (1993) (distribution of a maga-
zine through newsracks), these regulations withstand First
Amendment scrutiny.
Massachusetts’ sales practices provisions regulate conduct
that may have a communicative component, but Massachu-
setts seeks to regulate the placement of tobacco products
for reasons unrelated to the communication of ideas. See
O’Brien, supra, at 382. See also Pap’s A. M., 529 U. S., at
289 (plurality opinion); id., at 310 (Souter, J., concurring in
part and dissenting in part); Johnson, supra, at 403. We
conclude that the State has demonstrated a substantial inter-
est in preventing access to tobacco products by minors and
has adopted an appropriately narrow means of advancing
that interest. See O’Brien, supra, at 382.
Unattended displays of tobacco products present an oppor-
tunity for access without the proper age verification required
by law. Thus, the State prohibits self-service and other dis-
plays that would allow an individual to obtain tobacco prod-
ucts without direct contact with a salesperson. It is clear
that the regulations leave open ample channels of communi-
cation. The regulations do not significantly impede adult
access to tobacco products. Moreover, retailers have other

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Opinion of the Court
means of exercising any cognizable speech interest in the
presentation of their products. We presume that vendors
may place empty tobacco packaging on open display, and dis-
play actual tobacco products so long as that display is only
accessible to sales personnel. As for cigars, there is no indi-
cation in the regulations that a customer is unable to exam-
ine a cigar prior to purchase, so long as that examination
takes place through a salesperson.
The cigar petitioners also list Massachusetts’ prohibition
on sampling and free giveaways among the regulations they
challenge on First Amendment grounds. See 940 Code of
Mass. Regs. § 22.06(1)(a) (2000); Brief for Petitioners Altadis
U. S. A. Inc. et al. in No. 00–597, at 2. At no point in their
briefs or at oral argument, however, did the cigar petitioners
argue the merits of their First Amendment claim with re-
spect to the sampling and giveaway regulation. We decline
to address an issue that was not sufficiently briefed and ar-
gued before this Court. See Northwest Airlines, Inc. v.
County of Kent, 510 U. S. 355, 366, n. 10 (1994); Williams v.
United States, 503 U. S. 193, 206 (1992); Granfinanciera,
S. A. v. Nordberg, 492 U. S. 33, 38–40 (1989).
We conclude that the sales practices regulations withstand
First Amendment scrutiny. The means chosen by the State
are narrowly tailored to prevent access to tobacco products
by minors, are unrelated to expression, and leave open alter-
native avenues for vendors to convey information about
products and for would-be customers to inspect products be-
fore purchase.
IV
We have observed that “tobacco use, particularly among
children and adolescents, poses perhaps the single most sig-
nificant threat to public health in the United States.” FDA
v. Brown & Williamson Tobacco Corp., 529 U. S., at 161.
From a policy perspective, it is understandable for the States
to attempt to prevent minors from using tobacco products
before they reach an age where they are capable of weighing

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for themselves the risks and potential benefits of tobacco use,
and other adult activities. Federal law, however, places lim-
its on policy choices available to the States.
In these cases, Congress enacted a comprehensive scheme
to address cigarette smoking and health in advertising and
pre-empted state regulation of cigarette advertising that at-
tempts to address that same concern, even with respect to
youth. The First Amendment also constrains state efforts
to limit advertising of tobacco products, because so long as
the sale and use of tobacco is lawful for adults, the tobacco
industry has a protected interest in communicating informa-
tion about its products and adult customers have an interest
in receiving that information.
To the extent that federal law and the First Amendment
do not prohibit state action, States and localities remain free
to combat the problem of underage tobacco use by appro-
priate means. The judgment of the United States Court of
Appeals for the First Circuit is therefore affirmed in part
and reversed in part, and the cases are remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Kennedy, with whom Justice Scalia joins,
concurring in part and concurring in the judgment.
The obvious overbreadth of the outdoor advertising re-
strictions suffices to invalidate them under the fourth part
of the test in Central Hudson Gas & Elec. Corp. v. Public
Serv. Comm’n of N. Y., 447 U. S. 557 (1980). As a result, in
my view, there is no need to consider whether the restric-
tions satisfy the third part of the test, a proposition about
which there is considerable doubt. Cf. post, at 583–584
(Thomas, J., concurring in part and concurring in judgment).
Neither are we required to consider whether Central Hud-
son should be retained in the face of the substantial objec-
tions that can be made to it. See post, at 574–582 (opinion
of Thomas, J.). My continuing concerns that the test gives

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Opinion of Thomas, J.
insufficient protection to truthful, nonmisleading commercial
speech require me to refrain from expressing agreement
with the Court’s application of the third part of Central Hud-
son. See, e. g., 44 Liquormart, Inc. v. Rhode Island, 517
U. S. 484, 501–504 (1996) (opinion of Stevens, J., joined by
Kennedy and Ginsburg, JJ.). With the exception of Part
III–B–1, then, I join the opinion of the Court.
Justice Thomas, concurring in part and concurring in
the judgment.
I join the opinion of the Court (with the exception of Part
III–B–1) because I agree that the Massachusetts cigarette
advertising regulations are pre-empted by the Federal Ciga-
rette Labeling and Advertising Act, 15 U. S. C. § 1331 et seq.
I also agree with the Court’s disposition of the First Amend-
ment challenges to the other regulations at issue here, and
I share the Court’s view that the regulations fail even the
intermediate scrutiny of Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm’n of N. Y., 447 U. S. 557 (1980). At
the same time, I continue to believe that when the govern-
ment seeks to restrict truthful speech in order to suppress
the ideas it conveys, strict scrutiny is appropriate, whether
or not the speech in question may be characterized as “com-
mercial.” See 44 Liquormart, Inc. v. Rhode Island, 517
U. S. 484, 518 (1996) (Thomas, J., concurring in part and con-
curring in judgment). I would subject all of the advertising
restrictions to strict scrutiny and would hold that they vio-
late the First Amendment.
I
At the heart of this litigation is a Massachusetts regulation
that imposes a sweeping ban on speech about tobacco prod-
ucts. 940 Code of Mass. Regs. § 21.04(5) (2000), which gov-
erns cigarettes and smokeless tobacco, and § 22.06(5), which
governs cigars, prohibit all outdoor advertising, all indoor
advertising that can be seen from outdoors, and all point-of-
sale advertising (even if not visible from outdoors) that is

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lower than five feet from the floor.1 These restrictions are
superficially limited in their geographic scope: They apply
only within 1,000 feet of “any public playground, playground
area in a public park, elementary school or secondary
school.” § 21.04(5)(a). But the Court of Appeals acknowl-
edged that the zone of prohibition covers as much as 90 per-
cent of the three largest cities in Massachusetts, Consoli-
dated Cigar Corp. v. Reilly, 218 F. 3d 30, 50 (CA1 2000), so
the practical effect is little different from that of a total ban.
Cf. United States v. Playboy Entertainment Group, Inc., 529
U. S. 803, 812 (2000) (“The Government’s content-based bur-
dens must satisfy the same rigorous scrutiny as its content-
based bans”).
Respondents suggest in passing that the regulations are
“zoning-type restrictions” that should receive “the interme-
diate level of scrutiny traditionally associated with various
forms of ‘time, place, and manner’ regulations.” Brief for
Respondents 31. We have indeed upheld time, place, and
manner regulations that prohibited certain kinds of outdoor
signs, see, e. g., Members of City Council of Los Angeles v.
Taxpayers for Vincent, 466 U. S. 789 (1984), and we have
similarly upheld zoning laws that had the effect of restricting
certain kinds of sexually explicit expression, see, e. g., Ren-
ton v. Playtime Theatres, Inc., 475 U. S. 41 (1986). But the
abiding characteristic of valid time, place, and manner regu-
lations is their content neutrality. See Ward v. Rock
Against Racism, 491 U. S. 781, 791–796 (1989). In Vincent
the city prohibited all signs on public property, not to sup-
1 Other regulations prohibit the sale of tobacco products “in any manner
other than in a direct, face-to-face exchange,” forbid self-service displays,
and require that tobacco products be accessible only to store personnel.
See §§ 21.04(2)(a), (c)–(d), §§ 22.06(2)(a), (c)–(d). In addition, they prohibit
sampling and promotional giveaways. See §§ 21.04(1), 22.06(1). I agree
with the Court, see ante, at 567–570, that these regulations, which govern
conduct rather than expression, should be upheld under the test of United
States v. O’Brien, 391 U. S. 367 (1968).

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press the message conveyed by any of the signs, but simply
to minimize the esthetic effect of visual clutter. Likewise,
the ordinance in Renton was aimed not at expression, but at
the “secondary effects” caused by adult businesses.
The regulations here are very different. Massachusetts
is not concerned with any “secondary effects” of tobacco ad-
vertising—it is concerned with the advertising’s primary ef-
fect, which is to induce those who view the advertisements
to purchase and use tobacco products. Cf. Boos v. Barry,
485 U. S. 312, 321 (1988) (“Listeners’ reactions to speech are
not the type of ‘secondary effects’ we referred to in Ren-
ton”). In other words, it seeks to suppress speech about
tobacco because it objects to the content of that speech. We
have consistently applied strict scrutiny to such content-
based regulations of speech. See, e. g., Turner Broadcast-
ing System, Inc. v. FCC, 512 U. S. 622, 641–643 (1994).
A
There was once a time when this Court declined to give
any First Amendment protection to commercial speech. In
Valentine v. Chrestensen, 316 U. S. 52 (1942), the Court went
so far as to say that “the Constitution imposes [no] restraint
on government as respects purely commercial advertising.”
Id., at 54. That position was repudiated in Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425
U. S. 748 (1976), which explained that even speech “which
does ‘no more than propose a commercial transaction’ ” is
protected by the First Amendment. Id., at 762 (quoting
Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Re-
lations, 413 U. S. 376, 385 (1973)). Since then, the Court has
followed an uncertain course—much of the uncertainty being
generated by the malleability of the four-part balancing test
of Central Hudson. See 44 Liquormart, 517 U. S., at 520–
522 (Thomas, J., concurring in part and concurring in
judgment).

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I have observed previously that there is no “philosophical
or historical basis for asserting that ‘commercial’ speech is
of ‘lower value’ than ‘noncommercial’ speech.” Id., at 522.
Indeed, I doubt whether it is even possible to draw a co-
herent distinction between commercial and noncommercial
speech. See id., at 523, n. 4 (citing Kozinski & Banner,
Who’s Afraid of Commercial Speech, 76 Va. L. Rev. 627
(1990)).2
It should be clear that if these regulations targeted any-
thing other than advertising for commercial products—if, for
example, they were directed at billboards promoting political
candidates—all would agree that the restrictions should be
subjected to strict scrutiny. In my view, an asserted gov-
ernment interest in keeping people ignorant by suppressing
expression “is per se illegitimate and can no more justify
regulation of ‘commercial’ speech than it can justify regula-
tion of ‘noncommercial’ speech.” 517 U. S., at 518 (Thomas,
J., concurring in part and concurring in judgment). That is
essentially the interest asserted here, and, adhering to the
views I expressed in 44 Liquormart, I would subject the
Massachusetts regulations to strict scrutiny.
B
Even if one accepts the premise that commercial speech
generally is entitled to a lower level of constitutional protec-
tion than are other forms of speech, it does not follow that
the regulations here deserve anything less than strict scru-
tiny. Although we have recognized several categories of
2 Tobacco advertising provides a good illustration. The sale of tobacco
products is the subject of considerable political controversy, and not sur-
prisingly, some tobacco advertisements both promote a product and take
a stand in this political debate. See Brief for National Association of Con-
venience Stores as Amicus Curiae 20–22. A recent cigarette advertise-
ment, for example, displayed a brand logo next to text reading, “Why
do politicians smoke cigars while taxing cigarettes?” App. to Brief for
National Association of Convenience Stores as Amicus Curiae 2a.

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speech that normally receive reduced First Amendment pro-
tection, or no First Amendment protection at all, we have
never held that the government may regulate speech within
those categories in any way that it wishes. Rather, we have
said “that these areas of speech can, consistently with the
First Amendment, be regulated because of their constitu-
tionally proscribable content.” R. A. V. v. St. Paul, 505
U. S. 377, 383 (1992). Even when speech falls into a category
of reduced constitutional protection, the government may
not engage in content discrimination for reasons unrelated
to those characteristics of the speech that place it within the
category. For example, a city may ban obscenity (because
obscenity is an unprotected category, see, e. g., Roth v.
United States, 354 U. S. 476 (1957)), but it may not ban “only
those legally obscene works that contain criticism of the city
government.” R. A. V., supra, at 384.
In explaining the distinction between commercial speech
and other forms of speech, we have emphasized that commer-
cial speech is both “more easily verifiable by its dissemina-
tor” and less likely to be “chilled by proper regulation.”
Virginia Bd., 425 U. S., at 772, n. 24. These characteristics
led us to conclude that, in the context of commercial speech,
it is “less necessary to tolerate inaccurate statements for fear
of silencing the speaker,” and also that it is more “appro-
priate to require that a commercial message appear in such
a form, or include such additional information, warnings, and
disclaimers, as are necessary to prevent its being deceptive.”
Ibid. Whatever the validity of this reasoning, it is limited
to the peculiarly commercial harms that commercial speech
can threaten—i. e., the risk of deceptive or misleading adver-
tising. As we observed in R. A. V.:
“[A] State may choose to regulate price advertising in
one industry but not in others, because the risk of fraud
(one of the characteristics of commercial speech that jus-
tifies depriving it of full First Amendment protection) is
in its view greater there. But a State may not prohibit

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only that commercial advertising that depicts men in a
demeaning fashion.” 505 U. S., at 388–389 (citations
omitted).
In 44 Liquormart, several Members of the Court said
much the same thing:
“[W]hen a State entirely prohibits the dissemination of
truthful, nonmisleading commercial messages for rea-
sons unrelated to the preservation of a fair bargain-
ing process, there is far less reason to depart from the
rigorous review that the First Amendment generally
demands.” 517 U. S., at 501 (opinion of Stevens, J.,
joined by Kennedy and Ginsburg, JJ.).
Whatever power the State may have to regulate commercial
speech, it may not use that power to limit the content of
commercial speech, as it has done here, “for reasons unre-
lated to the preservation of a fair bargaining process.” Such
content-discriminatory regulation—like all other content-
based regulation of speech—must be subjected to strict
scrutiny.
C
In an effort to avoid the implications of these basic princi-
ples of First Amendment law, respondents make two princi-
pal claims. First, they argue that the regulations target de-
ceptive and misleading speech. See Brief for Respondents
33 (“Petitioners’ advertising clearly engenders ‘the potential
for deception or confusion’ that allows for regulation of com-
mercial speech based on its content” (quoting Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 65 (1983))). Sec-
ond, they argue that the regulations restrict speech that pro-
motes an illegal transaction—i. e., the sale of tobacco to mi-
nors. See Brief for Respondents 15 (“The regulations . . .
exhibit a close connection to a commercial transaction the
State has prohibited”).
Neither theory is properly before the Court. For pur-
poses of summary judgment, respondents were willing to as-

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sume “that the tobacco advertisements at issue here are
truthful, nonmisleading speech about a lawful activity.” 218
F. 3d, at 43. Although respondents now claim that they
have not conceded this point, see Brief for Respondents 35,
n. 17, the fact remains that they did not urge their theories
in the lower courts, and in general, we do not consider argu-
ments for affirmance that were not presented below. See,
e. g., Glover v. United States, 531 U. S. 198, 205 (2001).
These concessions should make this an easy case, one clearly
controlled by 44 Liquormart and by Greater New Orleans
Broadcasting Assn., Inc. v. United States, 527 U. S. 173
(1999). At all events, even if we were to entertain these
arguments, neither is persuasive.
Respondents suggest that tobacco advertising is mislead-
ing because “its youthful imagery and . . . sheer ubiquity”
leads children to believe “that tobacco use is desirable and
pervasive.” Brief for Respondents 33; see also Brief for
United States as Amicus Curiae 7 (“[S]o many children lack
the maturity in judgment to resist the tobacco industry’s ap-
peals to excitement, glamour, and independence”). This jus-
tification is belied, however, by the sweeping overinclusivity
of the regulations. Massachusetts has done nothing to tar-
get its prohibition to advertisements appealing to “excite-
ment, glamour, and independence”; the ban applies with
equal force to appeals to torpor, homeliness, and servility.
It has not focused on “youthful imagery”; smokers depicted
on the sides of buildings may no more play shuffleboard than
they may ride skateboards.
The regulations even prohibit a store from accurately stat-
ing the prices at which cigarettes are sold. Such a display
could not possibly be misleading, unless one accepts the
State’s apparent view that the simple existence of tobacco
advertisements misleads people into believing that tobacco
use is more pervasive than it actually is. The State misun-
derstands the purpose of advertising. Promoting a product
that is not yet pervasively used (or a cause that is not yet

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widely supported) is a primary purpose of advertising. To-
bacco advertisements would be no more misleading for sug-
gesting pervasive use of tobacco products than are any other
advertisements that attempt to expand a market for a prod-
uct, or to rally support for a political movement. Any infer-
ence from the advertisements that businesses would like for
tobacco use to be pervasive is entirely reasonable, and adver-
tising that gives rise to that inference is in no way deceptive.
The State also contends that tobacco advertisements may
be restricted because they propose an illegal sale of tobacco
to minors. A direct solicitation of unlawful activity may of
course be proscribed, whether or not it is commercial in na-
ture. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per
curiam). The State’s power to punish speech that solicits
or incites crime has nothing to do with the commercial char-
acter of the speech. After all, it is often the case that solici-
tation to commit a crime is entirely noncommercial. The
harm that the State seeks to prevent is the harm caused by
the unlawful activity that is solicited; it is unrelated to the
commercial transaction itself. Thus there is no reason to
apply anything other than our usual rule for evaluating solic-
itation and incitement simply because the speech in question
happens to be commercial. See Carey v. Population Serv-
ices Int’l, 431 U. S. 678, 701–702 (1977).
Viewed as an effort to proscribe solicitation to unlawful
conduct, these regulations clearly fail the Brandenburg test.
A State may not “forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is di-
rected to inciting or producing imminent lawless action and
is likely to incite or produce such action.” Brandenburg,
supra, at 447. Even if Massachusetts could prohibit adver-
tisements reading, “Hey kids, buy cigarettes here,” these
regulations sweep much more broadly than that. They
cover “any . . . statement or representation . . . the purpose
or effect of which is to promote the use or sale” of tobacco
products, whether or not the statement is directly or indi-

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rectly addressed to minors. 940 Code of Mass. Regs. § 21.03
(2000). On respondents’ theory, all tobacco advertising may
be limited because some of its viewers may not legally act
on it.
It is difficult to see any stopping point to a rule that would
allow a State to prohibit all speech in favor of an activity in
which it is illegal for minors to engage. Presumably, the
State could ban car advertisements in an effort to enforce its
restrictions on underage driving. It could regulate adver-
tisements urging people to vote, because children are not
permitted to vote. And, although the Solicitor General re-
sisted this implication of her theory, see Tr. of Oral Arg. 55–
56, the State could prohibit advertisements for adult busi-
nesses, which children are forbidden to patronize.
At bottom, respondents’ theory rests on the premise that
an indirect solicitation is enough to empower the State to
regulate speech, and that, as petitioners put it, even an ad-
vertisement directed at adults “will give any children who
may happen to see it the wrong idea and therefore must be
suppressed from public view.” Brief for Petitioners Loril-
lard Tobacco Co. et al. in No. 00–596, p. 36. This view is
foreign to the First Amendment. “Every idea is an incite-
ment,” Gitlow v. New York, 268 U. S. 652, 673 (1925) (Holmes,
J., dissenting), and if speech may be suppressed whenever it
might inspire someone to act unlawfully, then there is no
limit to the State’s censorial power. Cf. American Booksell-
ers Assn., Inc. v. Hudnut, 771 F. 2d 323 (CA7 1985), aff ’d,
475 U. S. 1001 (1986).
There is a deeper flaw in the State’s argument. Even if
Massachusetts has a valid interest in regulating speech di-
rected at children—who, it argues, may be more easily mis-
led, and to whom the sale of tobacco products is unlawful—
it may not pursue that interest at the expense of the free
speech rights of adults.
The theory that public debate should be limited in order
to protect impressionable children has a long historical pedi-

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gree: Socrates was condemned for being “a doer of evil, inas-
much as he corrupts the youth.” 1 Dialogues of Plato, Apol-
ogy 348 (B. Jowett transl., 4th ed. 1953). But the theory has
met with a less enthusiastic reception in this Court than it
did in the Athenian assembly. In Butler v. Michigan, 352
U. S. 380 (1957), we struck down a statute restricting the
sale of materials “ ‘tending to incite minors to violent or de-
praved or immoral acts.’ ” Id., at 381 (quoting then Mich.
Penal Code § 343). The effect of the law, we observed, was
“to reduce the adult population of Michigan to reading only
what is fit for children.” 352 U. S., at 383. As Justice
Frankfurter colorfully put it, “Surely, this is to burn the
house to roast the pig.” Ibid.
We have held consistently that speech “cannot be sup-
pressed solely to protect the young from ideas or images that
a legislative body thinks unsuitable for them.” Erznoznik
v. Jacksonville, 422 U. S. 205, 213–214 (1975); accord, Bolger,
463 U. S., at 74 (“The level of discourse reaching a mailbox
simply cannot be limited to that which would be suitable for
a sandbox”). To be sure, in FCC v. Pacifica Foundation,
438 U. S. 726 (1978), we upheld the Federal Communications
Commission’s power to regulate indecent but nonobscene
radio broadcasts. But Pacifica relied heavily on what it
considered to be the “special justifications for regulation of
the broadcast media that are not applicable to other speak-
ers.” Reno v. American Civil Liberties Union, 521 U. S.
844, 868 (1997). It emphasized that radio is “uniquely
pervasive” and “uniquely accessible to children, even those
too young to read.” Pacifica, supra, at 748–749 (emphasis
added).
Outside of the broadcasting context, we have adhered to
the view that “the governmental interest in protecting chil-
dren from harmful materials” does not “justify an unneces-
sarily broad suppression of speech addressed to adults.”
Reno, supra, at 875; see also Playboy Entertainment, 529
U. S., at 814 (“[T]he objective of shielding children does not

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suffice to support a blanket ban if the protection can be ac-
complished by a less restrictive alternative”). Massachu-
setts may not avoid the application of strict scrutiny simply
because it seeks to protect children.
II
Under strict scrutiny, the advertising ban may be saved
only if it is narrowly tailored to promote a compelling gov-
ernment interest. See, e. g., id., at 813. If that interest
could be served by an alternative that is less restrictive of
speech, then the State must use that alternative instead.
See ibid.; Reno, supra, at 874. Applying this standard, the
regulations here must fail.
A
Massachusetts asserts a compelling interest in reducing
tobacco use among minors. Applied to adults, an interest in
manipulating market choices by keeping people ignorant
would not be legitimate, let alone compelling. See supra,
at 575. But assuming that there is a compelling interest
in reducing underage smoking, and that the ban on outdoor
advertising promotes this interest, I doubt that the same is
true of the ban on point-of-sale advertising below five feet.
See 940 Code of Mass. Regs. §§ 21.04(5)(b), 22.06(5)(b) (2000).
The Court of Appeals admitted to having “some misgivings
about the effectiveness of a restriction that is based on the
assumption that minors under five feet tall will not, or will
less frequently, raise their view above eye-level,” 218 F. 3d,
at 51, as well it might have, since respondents have produced
no evidence to support this counterintuitive assumption.
Obviously even short children can see objects that are taller
than they are. Anyway, by the time they are 121 ⁄ 2 years old,
both the median girl and the median boy are over five feet
tall. See U. S. Centers for Disease Control and Prevention,
Growth Charts (2000). Thus, there is no reason to believe
that this regulation does anything to protect minors from

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exposure to tobacco advertising.3 Far from serving a com-
pelling interest, the ban on displays below five feet seems to
lack even a minimally rational relationship to any conceiv-
able interest.
There is also considerable reason to doubt that the restric-
tions on cigar and smokeless tobacco outdoor advertising
promote any state interest. Outdoor advertising for cigars,
after all, is virtually nonexistent. Cigar makers use no bill-
boards in Massachusetts, and in fact their nationwide out-
door advertising budget is only about $50,000 per year. See
218 F. 3d, at 49. To the extent outdoor advertising exists,
there is no evidence that it is targeted at youth or has a
significant effect on youth. The Court of Appeals focused
on the State’s evidence of a relationship between “tobacco
advertising and tobacco use,” id., at 48, thus eliding the
dearth of evidence showing any relationship between cigar
advertising and cigar use by minors. Respondents princi-
pally rely on a National Cancer Institute report on cigar
smoking, see Brief for Respondents 39, n. 19. But that re-
port contains only the conclusory assertion that cigars are
being “heavily promoted in ways likely to influence adoles-
cent use,” and it does not even discuss outdoor advertising,
instead focusing on “[e]ndorsements by celebrities,” “the re-
3 This is not to say that the regulation does nothing at all. As the Court
points out, see ante, at 565, security concerns require that convenience
stores be designed so that the interior of the store is visible from the
street. See also Occupational Safety and Health Administration, Recom-
mendations for Workplace Violence Prevention Programs in Late-Night
Retail Establishments 6 (1998) (“Shelves should be low enough to assure
good visibility throughout the store”). The § 21.04(5)(b) ban on displays
below five feet and the § 21.04(5)(a) ban on displays visible from outside
the store, combined with these security concerns, would prevent many
convenience stores from displaying any tobacco products at all. Thus,
despite the State’s disclaimers, see Brief for Respondents 30 (“The State,
quite clearly, is not trying to suppress altogether the communication of
product information to interested consumers”), the restrictions effectively
produce a total ban.

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surgence of cigar smoking in movies,” and “cigar lifestyle
magazines such as ‘Cigar Aficionado.’ ” National Cancer
Institute, Cigars: Health Effects and Trends, Smoking and
Tobacco Control Monograph No. 9, pp. 14–15 (1998), Record,
Doc. No. 39, Exh. 67. The report candidly acknowledges
that “[a]dditional information is needed to better character-
ize marketing efforts for cigars” and “to learn the extent to
which advertising and promotion for cigars . . . reaches and
affects kids.” Id., at 216–217. In other words, respondents
have adduced no evidence that a ban on cigar advertising
will do anything to promote their asserted interest.
Much the same is true of smokeless tobacco. Here re-
spondents place primary reliance on evidence that, in the late
1960’s, the U. S. Smokeless Tobacco Company increased its
sales through advertising targeted at young males. See
Brief for Respondents 39, n. 19. But this does nothing to
show that advertising affecting minors is a problem today.
The Court invokes the Food and Drug Administration’s find-
ings, see ante, at 559–560, but the report it cites based its
conclusions on the observed “very large increase in the use
of smokeless tobacco products by young people.” 60 Fed.
Reg. 41318 (1995). This premise is contradicted by one of
respondents’ own studies, which reports a large, steady de-
crease in smokeless tobacco use among Massachusetts high
school students during the 1990’s. See App. 292. This
finding casts some doubt on whether the State’s interest in
additional regulation is truly compelling. More importantly,
because cigarette smoking among high school students has
not exhibited such a trend, see ibid., it indicates that re-
spondents’ effort to aggregate cigarettes and smokeless to-
bacco is misguided.
B
In any case, even assuming that the regulations advance a
compelling state interest, they must be struck down because
they are not narrowly tailored. The Court is correct, see
ante, at 561–563, that the arbitrary 1,000-foot radius demon-

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strates a lack of narrow tailoring, but the problem goes
deeper than that. A prohibited zone defined solely by cir-
cles drawn around schools and playgrounds is necessarily
overinclusive, regardless of the radii of the circles. Con-
sider, for example, a billboard located within 1,000 feet of a
school but visible only from an elevated freeway that runs
nearby. Such a billboard would not threaten any of the in-
terests respondents assert, but it would be banned anyway,
because the regulations take no account of whether the ad-
vertisement could even be seen by children. The prohibited
zone is even more suspect where, as here, it includes all but
10 percent of the area in the three largest cities in the State.
The loose tailoring of the advertising ban is displayed not
only in its geographic scope but also in the nature of the
advertisements it affects. The regulations define “adver-
tisement” very broadly; the term includes any “written . . .
statement or representation, made by” a person who sells
tobacco products, “the purpose or effect of which is to pro-
mote the use or sale of the product.” 940 Code of Mass.
Regs. § 21.03 (2000). Almost everything a business does has
the purpose of promoting the sale of its products, so this
definition would cover anything a tobacco retailer might say.
Some of the prohibited speech would not even be commercial.
If a store displayed a sign promoting a candidate for Attor-
ney General who had promised to repeal the tobacco regula-
tions if elected, it probably would be doing so with the long-
term purpose of promoting sales, and the display of such a
sign would be illegal.
Even if the definition of “advertisement” were read more
narrowly so as to require a specific reference to tobacco prod-
ucts, it still would have Draconian effects. It would, for ex-
ample, prohibit a tobacconist from displaying a sign reading
“Joe’s Cigar Shop.” The effect of this rule is not to make
cigars impossible to find; retailers are after all allowed to
display a 576-square-inch black-and-white sign reading “To-
bacco Products Sold Here.” § 22.06(6). Rather, it is to

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586 LORILLARD TOBACCO CO. v. REILLY
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make individual cigar retailers more difficult to identify by
making them change their names. Respondents assert no
interest in cigar retailer anonymity, and it is difficult to con-
ceive of any other interest to which this rule could be said
to be narrowly tailored.
The regulations fail the narrow tailoring inquiry for an-
other, more fundamental reason. In addition to examining
a narrower advertising ban, the State should have examined
ways of advancing its interest that do not require limiting
speech at all. Here, respondents had several alternatives.
Most obviously, they could have directly regulated the con-
duct with which they were concerned. See, e. g., Rubin v.
Coors Brewing Co., 514 U. S. 476, 490–491 (1995) (invalidat-
ing ban on disclosure of alcohol content on beer labels, in
part because the Government could have pursued alterna-
tives such as “directly limiting the alcohol content of beers”);
see also 44 Liquormart, 517 U. S., at 524 (Thomas, J., concur-
ring in part and concurring in judgment) (“[I]t would seem
that directly banning a product (or . . . otherwise restricting
its sale in specific ways) would virtually always be at least as
effective in discouraging consumption as merely restricting
advertising”). Massachusetts already prohibits the sale of
tobacco to minors, but it could take steps to enforce that
prohibition more vigorously. It also could enact laws pro-
hibiting the purchase, possession, or use of tobacco by mi-
nors. And, if its concern is that tobacco advertising commu-
nicates a message with which it disagrees, it could seek to
counteract that message with “more speech, not enforced
silence,” Whitney v. California, 274 U. S. 357, 377 (1927)
(Brandeis, J., concurring).
III
Underlying many of the arguments of respondents and
their amici is the idea that tobacco is in some sense sui gene-
ris—that it is so special, so unlike any other object of regula-
tion, that application of normal First Amendment principles
should be suspended. See, e. g., Brief for Respondents 50

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(referring to tobacco use as “one of the State’s—and indeed
the Nation’s—most urgent problems”); Brief for United
States as Amicus Curiae 19–20 (cataloging the prevalence
and the effects of tobacco use); Brief for American Medical
Association et al. as Amici Curiae 24 (advocating “the au-
thority of governments to protect children from uniquely
dangerous messages”). Smoking poses serious health risks,
and advertising may induce children (who lack the judgment
to make an intelligent decision about whether to smoke) to
begin smoking, which can lead to addiction. The State’s as-
sessment of the urgency of the problem posed by tobacco is
a policy judgment, and it is not this Court’s place to second-
guess it. Nevertheless, it seems appropriate to point out
that to uphold the Massachusetts tobacco regulations would
be to accept a line of reasoning that would permit restric-
tions on advertising for a host of other products.
Tobacco use is, we are told, “the single leading cause of
preventable death in the United States.” Brief for United
States as Amicus Curiae 19. The second largest contribu-
tor to mortality rates in the United States is obesity.
Koplan & Dietz, Caloric Imbalance and Public Health Policy,
282 JAMA 1579 (1999). It is associated with increased inci-
dence of diabetes, hypertension, and coronary artery disease,
ibid., and it represents a public health problem that is rapidly
growing worse. See Mokdad et al., The Spread of the Obe-
sity Epidemic in the United States, 1991–1998, 282 JAMA
1519 (1999). Although the growth of obesity over the last
few decades has had many causes, a significant factor has
been the increased availability of large quantities of high-
calorie, high-fat foods. See Hill, Environmental Contribu-
tions to the Obesity Epidemic, 280 Science 1371 (1998).
Such foods, of course, have been aggressively marketed and
promoted by fast food companies. See Nestle & Jacobson,
Halting the Obesity Epidemic, U. S. Dept. of Health and
Human Services, 115 Public Health Reports 12, 18 (2000).

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Respondents say that tobacco companies are covertly tar-
geting children in their advertising. Fast food companies do
so openly. See, e. g., Kramer, McD’s Steals Another Toy
from BK, Advertising Age, Nov. 15, 1999, p. 1 (describing a
McDonald’s promotional campaign); Lucas, BK Takes Choice
Message to Kids, Adweek, June 29, 1998, p. 4 (describing a
Burger King promotional campaign). Moreover, there is
considerable evidence that they have been successful in
changing children’s eating behavior. See Borzekowski &
Robinson, The 30-Second Effect, 101 J. Am. Dietetic Assn. 42
(2001); Taras, Sallis, Patterson, Nader, & Nelson, Television’s
Influence on Children’s Diet and Physical Activity, 10 J.
Dev. & Behav. Pediatrics 176 (1989). The effect of advertis-
ing on children’s eating habits is significant for two reasons.
First, childhood obesity is a serious health problem in its
own right. Troiano & Flegal, Overweight Children and Ad-
olescents, 101 Pediatrics 497 (1998). Second, eating pref-
erences formed in childhood tend to persist in adulthood.
Birch & Fisher, Development of Eating Behaviors Among
Children and Adolescents, 101 Pediatrics 539 (1998). So
even though fast food is not addictive in the same way to-
bacco is, children’s exposure to fast food advertising can have
deleterious consequences that are difficult to reverse.
To take another example, the third largest cause of pre-
ventable deaths in the United States is alcohol. McGinnis &
Foege, Actual Causes of Death in the United States, 270
JAMA 2207, 2208 (1993). Alcohol use is associated with tens
of thousands of deaths each year from cancers and digestive
diseases. Id., at 2208–2209. And the victims of alcohol use
are not limited to those who drink alcohol. In 1996, over
17,000 people were killed, and over 321,000 people were in-
jured, in alcohol-related car accidents. U. S. Dept. of Jus-
tice, Alcohol and Crime 13 (1998). Each year, alcohol is in-
volved in several million violent crimes, including almost
200,000 sexual assaults. Id., at 3–4.

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Although every State prohibits the sale of alcohol to those
under age 21, much alcohol advertising is viewed by children.
Federal Trade Commission, J. Evans & R. Kelly, Self-
Regulation in the Alcohol Industry (Sept. 1999); Grube &
Wallack, Television Beer Advertising and Drinking Knowl-
edge, Beliefs, and Intentions among Schoolchildren, 84 Am.
J. Pub. Health 254 (1994). Not surprisingly, there is consid-
erable evidence that exposure to alcohol advertising is asso-
ciated with underage drinking. See Atkin, Survey and Ex-
perimental Research on Effects of Alcohol Advertising, in
The Effects of the Mass Media on the Use and Abuse of Alco-
hol 39 (S. Martin ed. 1995); Madden & Grube, The Frequency
and Nature of Alcohol and Tobacco Advertising in Televised
Sports, 1990 through 1992, 84 Am. J. Pub. Health 297 (1994).
Like underage tobacco use, underage drinking has effects
that cannot be undone later in life. Those who begin drink-
ing early are much more likely to become dependent on alco-
hol. Indeed, the probability of lifetime alcohol dependence
decreases approximately 14 percent with each additional
year of age at which alcohol is first used. Grant & Dawson,
Age at Onset of Alcohol Use and its Association with
DSM–IV Alcohol Abuse and Dependence, 9 J. Substance
Abuse 103, 108 (1997). And obviously the effects of under-
age drinking are irreversible for the nearly 1,700 Americans
killed each year by teenage drunk drivers. See National
Highway Traffic Safety Administration, 1998 Youth Fatal
Crash and Alcohol Facts.
Respondents have identified no principle of law or logic
that would preclude the imposition of restrictions on fast
food and alcohol advertising similar to those they seek to
impose on tobacco advertising. Cf. Tr. of Oral Arg. 56–57.
In effect, they seek a “vice” exception to the First Amend-
ment. No such exception exists. See 44 Liquormart, 517
U. S., at 513–514 (opinion of Stevens, J., joined by Ken-
nedy, Thomas, and Ginsburg, JJ.). If it did, it would have
almost no limit, for “any product that poses some threat to

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public health or public morals might reasonably be character-
ized by a state legislature as relating to ‘vice activity.’ ” Id.,
at 514. That is why “a ‘vice’ label that is unaccompanied by
a corresponding prohibition against the commercial behavior
at issue fails to provide a principled justification for the regu-
lation of commercial speech about that activity.” Ibid.
No legislature has ever sought to restrict speech about an
activity it regarded as harmless and inoffensive. Calls for
limits on expression always are made when the specter of
some threatened harm is looming. The identity of the harm
may vary. People will be inspired by totalitarian dogmas
and subvert the Republic. They will be inflamed by racial
demagoguery and embrace hatred and bigotry. Or they will
be enticed by cigarette advertisements and choose to smoke,
risking disease. It is therefore no answer for the State to
say that the makers of cigarettes are doing harm: perhaps
they are. But in that respect they are no different from
the purveyors of other harmful products, or the advocates of
harmful ideas. When the State seeks to silence them, they
are all entitled to the protection of the First Amendment.
Justice Souter, concurring in part and dissenting in
part.
I join Parts I, II–C, II–D, III–A, III–B–1, III–C, and
III–D of the Court’s opinion. I join Part I of the opinion
of Justice Stevens concurring in part, concurring in the
judgment in part, and dissenting in part. I respectfully dis-
sent from Part III–B–2 of the opinion of the Court, and like
Justice Stevens would remand for trial on the constitu-
tionality of the 1,000-foot limit.
Justice Stevens, with whom Justice Ginsburg and
Justice Breyer join, and with whom Justice Souter joins
as to Part I, concurring in part, concurring in the judgment
in part, and dissenting in part.
This suit presents two separate sets of issues. The first—
involving pre-emption—is straightforward. The second—

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involving the First Amendment—is more complex. Because
I strongly disagree with the Court’s conclusion that the
Federal Cigarette Labeling and Advertising Act of 1965
(FCLAA or Act), 15 U. S. C. § 1331 et seq., as amended, pre-
cludes States and localities from regulating the location of
cigarette advertising, I dissent from Parts II–A and II–B
of the Court’s opinion. On the First Amendment questions,
I agree with the Court both that the outdoor advertising
restrictions imposed by Massachusetts serve legitimate and
important state interests and that the record does not indi-
cate that the measures were properly tailored to serve those
interests. Because the present record does not enable us to
adjudicate the merits of those claims on summary judgment,
I would vacate the decision upholding those restrictions and
remand for trial on the constitutionality of the outdoor ad-
vertising regulations. Finally, because I do not believe that
either the point-of-sale advertising restrictions or the sales
practice restrictions implicate significant First Amendment
concerns, I would uphold them in their entirety.
I
As the majority acknowledges, ante, at 541–542, under
prevailing principles, any examination of the scope of a pre-
emption provision must “ ‘start with the assumption that the
historic police powers of the States [are] not to be super-
seded by . . . Federal Act unless that [is] the clear and mani-
fest purpose of Congress.’ ” Cipollone v. Liggett Group,
Inc., 505 U. S. 504, 516 (1992) (quoting Rice v. Santa Fe Ele-
vator Corp., 331 U. S. 218, 230 (1947)); see also, e. g., Califor-
nia Div. of Labor Standards Enforcement v. Dillingham
Constr., N. A., Inc., 519 U. S. 316, 325 (1997); Medtronic, Inc.
v. Lohr, 518 U. S. 470, 475 (1996). As the regulations at
issue in this suit implicate two powers that lie at the heart
of the States’ traditional police power—the power to regu-
late land usage and the power to protect the health and
safety of minors—our precedents require that the Court con-
strue the pre-emption provision “narrow[ly].” Id., at 485;

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see also Cipollone, 505 U. S., at 518. If Congress’ intent to
pre-empt a particular category of regulation is ambiguous,
such regulations are not pre-empted.1
The text of the pre-emption provision must be viewed in
context, with proper attention paid to the history, structure,
and purpose of the regulatory scheme in which it appears.
See, e. g., Medtronic, 518 U. S., at 484–486; New York State
Conference of Blue Cross & Blue Shield Plans v. Travelers
Ins. Co., 514 U. S. 645, 655–656 (1995); Cipollone, 505 U. S.,
at 513–515, 519–520, 529, 530, n. 27; accord, ante, at 542. 2
An assessment of the scope of a pre-emption provision must
give effect to a “reasoned understanding of the way in which
Congress intended the statute and its surrounding regula-
tory scheme to affect business, consumers, and the law.”
Medtronic, 518 U. S., at 486.
This task, properly performed, leads inexorably to the con-
clusion that Congress did not intend to pre-empt state and
local regulations of the location of cigarette advertising when
it adopted the provision at issue in this suit. In both 1965
and 1969, Congress made clear the purposes of its regulatory
1 See, e. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S.
132, 146–147 (1963) (“[W]e are not to conclude that Congress legislated
the ouster of this [state] statute . . . in the absence of an unambiguous
congressional mandate to that effect”); Cipollone, 505 U. S., at 533 (Black-
mun, J., joined by Kennedy and Souter, JJ., concurring in part, concur-
ring in judgment in part, and dissenting in part) (“The principles of fed-
eralism and respect for state sovereignty that underlie the Court’s
reluctance to find pre-emption where Congress has not spoken directly
to the issue apply with equal force where Congress has spoken, though
ambiguously. In such cases, the question is not whether Congress in-
tended to pre-empt state regulation, but to what extent. We do not, ab-
sent unambiguous evidence, infer a scope of pre-emption beyond that
which clearly is mandated by Congress’ language” (emphasis deleted)).
2 Cf. Central Hanover Bank & Trust Co. v. Commissioner, 159 F. 2d 167,
169 (CA2 1947) (L. Hand, J.) (“There is no more likely way to misappre-
hend the meaning of language—be it in a constitution, a statute, a will or
a contract—than to read the words literally, forgetting the object which
the document as a whole is meant to secure”).

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endeavor, explaining with precision the federal policies moti-
vating its actions. According to the Acts, Congress adopted
a “comprehensive Federal Program to deal with cigarette
labeling and advertising with respect to any relationship be-
tween smoking and health,” for two reasons: (1) to inform
the public that smoking may be hazardous to health and (2)
to ensure that commerce and the interstate economy not be
“impeded by diverse, nonuniform, and confusing cigarette la-
beling and advertising regulations with respect to any rela-
tionship between smoking and health.” 15 U. S. C. § 1331.
In order to serve the second purpose it was necessary to
pre-empt state regulation of the content of both cigarette
labels and cigarette advertising. If one State required the
inclusion of a particular warning on the package of cigarettes
while another State demanded a different formulation, ciga-
rette manufacturers would have been forced into the difficult
and costly practice of producing different packaging for use
in different States. To foreclose the waste of resources that
would be entailed by such a patchwork regulatory system,
Congress expressly precluded other regulators from requir-
ing the placement on cigarette packaging of any “statement
relating to smoking and health.” § 1334(a). Similar con-
cerns applied to cigarette advertising. If different regula-
tory bodies required that different warnings or statements
be used when cigarette manufacturers advertised their prod-
ucts, the text and layout of a company’s ads would have had
to differ from locale to locale. The resulting costs would
have come with little or no health benefit. Moreover, given
the nature of publishing, it might well have been the case
that cigarette companies would not have been able to adver-
tise in national publications without violating the laws of
some jurisdictions. In response to these concerns, Congress
adopted a parallel provision pre-empting state and local reg-
ulations requiring inclusion in cigarette advertising of any
“statement relating to smoking and health.” § 1334(b) (1970
ed.) (amended 1970).

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594 LORILLARD TOBACCO CO. v. REILLY
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There was, however, no need to interfere with state or
local zoning laws or other regulations prescribing limitations
on the location of signs or billboards. Laws prohibiting a
cigarette company from hanging a billboard near a school in
Boston in no way conflict with laws permitting the hanging
of such a billboard in other jurisdictions. Nor would such
laws even impose a significant administrative burden on
would-be advertisers, as the great majority of localities im-
pose general restrictions on signage, thus requiring advertis-
ers to examine local law before posting signs whether or not
cigarette-specific laws are pre-empted. See Greater N. Y.
Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100,
109 (CA2 1999) (“Divergent local zoning restrictions on the
location of sign advertising are a commonplace feature of the
national landscape and cigarette advertisers have always
been bound to observe them”). Hence, it is unsurprising
that Congress did not include any provision in the 1965 Act
pre-empting location restrictions.
The Public Health Cigarette Smoking Act of 1969 (1969
Act), § 2, 84 Stat. 87, made two important changes in the
pre-emption provision. First, it limited the applicability of
the advertising prong to States and localities, paving the
way for further federal regulation of cigarette advertising.
FCLAA, § 4. Second, it expanded the scope of the advertis-
ing pre-emption provision. Where previously States were
prohibited from requiring particular statements in cigarette
advertising based on health concerns, they would henceforth
be prohibited from imposing any “requirement or prohibi-
tion based on smoking and health . . . with respect to the
advertising or promotion” of cigarettes. § 5(b), 15 U. S. C.
§ 1334(b).3
3 In Cipollone v. Liggett Group, Inc., 505 U. S. 504, 521 (1992), we held
that one of the consequences of this change in language was that after
1969 the statute pre-empts some common-law actions.

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Ripped from its context, this provision could theoretically
be read as a breathtaking expansion of the limitations im-
posed by the 1965 Act. However, both our precedents and
common sense require us to read statutory provisions—and,
in particular, pre-emption clauses—in the context of both
their neighboring provisions and of the history and purpose
of the statutory scheme. See supra, at 592. When so
viewed, it is quite clear that the 1969 amendments were in-
tended to expand the provision to capture a narrow set of
content regulations that would have escaped pre-emption
under the prior provision, not to fundamentally reorder the
division of regulatory authority between the Federal and
State Governments.
All signs point inescapably to the conclusion that Congress
only intended to pre-empt content regulations in the 1969
Act. It is of crucial importance that, in making modifica-
tions of the pre-emption provision, Congress did not alter
the statement laying out the federal policies the provision
was intended to serve. See 15 U. S. C. § 1331. To this day,
the stated federal policies in this area are (1) to inform the
public of the dangers of cigarette smoking and (2) to protect
the cigarette companies from the burdens of confusing and
contradictory state regulations of their labels and advertise-
ments. See ibid. The retention of this provision un-
changed is strong evidence that Congress’ only intention in
expanding the pre-emption clause was to capture forms of
content regulation that had fallen through the cracks of the
prior provision—for example, state laws prohibiting ciga-
rette manufacturers from making particular claims in their
advertising or requiring them to utilize specified layouts or
include particular graphics in their marketing.4
4 Because of the nature of magazine publishing and distribution, it is
conceivable that a State or locality might cause the kind of regulatory
confusion the statute was drafted to prevent by adopting a law prohibiting
the advertising of cigarettes in any publication distributed within its

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The legislative history of the provision also supports such
a reading. The record does not contain any evidence that
Congress intended to expand the scope of pre-emption be-
yond content restrictions.5 To the contrary, the Senate Re-
port makes it clear that the changes merely “clarified” the
scope of the original provision. S. Rep. No. 91–566, p. 12
(1969). Even as amended, Congress perceived the provision
as “narrowly phrased” and emphasized that its purpose is
to “avoid the chaos created by a multiplicity of conflicting
regulations.” Ibid. According to the Senate Report, the
changes “in no way affect the power of any state or political
subdivision of any state with respect to . . . the sale of
cigarettes to minors . . . or similar police regulations.”
Ibid.
In analyzing the scope of the pre-emption provision, the
Courts of Appeals have almost uniformly concluded that
state and local laws regulating the location of billboards and
signs are not pre-empted. See Consolidated Cigar Corp. v.
Reilly, 218 F. 3d 30, 39–41 (CA1 2000) (case below); Greater
New York Metropolitan Food Council, Inc. v. Giuliani, 195
F. 3d 100, 104–110 (CA2 1999); Federation of Advertising
Industry Representatives, Inc. v. Chicago, 189 F. 3d 633,
boundaries. There is at least a modicum of support for the suggestion
that Congress may have intended the pre-emption of such restrictions.
See id., at 515, n. 11 (noting that California was considering such a ban at
the time Congress was considering the 1969 Act). However, the concerns
posed by the diverse regulation of national publications are not present
with regard to the local regulation of the location of signs and billboards.
5 At one point, the Court briefly argues that it would be wrong to con-
clude that Congress intended to preclude only content restrictions, be-
cause it imposed a location restriction (a ban on television and radio adver-
tising) in another provision of the same bill. See ante, at 548–549. This
argument is something of a non sequitur. The fact that Congress, in
adopting a comprehensive legislative package, chose to impose a federal
location restriction for a national medium has no bearing on whether, in a
separate provision, the Legislature intended to strip States and localities
of the authority to impose location restrictions for purely local advertis-
ing media.

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636–640 (CA7 1999); Penn Advertising of Baltimore, Inc. v.
Mayor and City Council of Baltimore, 63 F. 3d 1318 (CA4
1995); contra, Lindsey v. Tacoma-Pierce Cty. Health Dept.,
195 F. 3d 1065 (CA9 1999). The decisions in those cases
relied heavily upon our discussion of the same pre-emption
provision in Cipollone, 505 U. S., at 515–524. In Cipollone,
while the Members of the Court expressed three different
opinions concerning the scope of pre-emption mandated by
the provision, those differences related entirely to which, if
any, of the plaintiff ’s claims based on the content of the de-
fendants’ advertising were pre-empted by § 5. Nary a word
in any of the three Cipollone opinions supports the thesis
that § 5 should be interpreted to pre-empt state regulation
of the location of signs advertising cigarettes. Indeed,
seven of the nine Justices subscribed to opinions that explic-
itly tethered the scope of the pre-emption provision to Con-
gress’ concern with “diverse, nonuniform, and confusing ciga-
rette labeling and advertising regulations.” Id., at 519; id.,
at 534, 541 (opinion of Blackmun, J., joined by Kennedy and
Souter, JJ.).
I am firmly convinced that, when Congress amended the
pre-emption provision in 1969, it did not intend to expand
the application of the provision beyond content regulations.6
6 Petitioners suggest in passing that Massachusetts’ regulation amounts
to a “near-total ba[n],” Brief for Petitioners Lorillard Tobacco Co. et al. in
No. 00–596, p. 22, and thus is a de facto regulation of the content of ciga-
rette ads. But we need not consider today the circumstances in which
location restrictions approximating a total ban might constitute regulation
of content and thus be pre-empted by the Act, because petitioners have
failed to introduce sufficient evidence to create a genuine issue as to that
claim. Petitioners introduced maps purporting to show that cigarette ad-
vertising is barred in 90.6% of Boston proper, 87.8% of Worcester, and
88.8% of Springfield. See App. 165–167. But the maps do not distin-
guish between the area restricted due to the regulation at issue here and
the area restricted due to pre-existing regulations, such as general zoning
requirements applicable to all outdoor advertising. Nor do the maps
show the percentage (with respect to either area or population) of the
State that is off limits to cigarette advertising; they cover only three cities

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598 LORILLARD TOBACCO CO. v. REILLY
Opinion of Stevens, J.
I, therefore, find the conclusion inescapable that the zoning
regulation at issue in this suit is not a “requirement or
prohibition . . . with respect to . . . advertising” within the
meaning of the 1969 Act.7 Even if I were not so convinced,
however, I would still dissent from the Court’s conclusion
with regard to pre-emption, because the provision is, at the
very least, ambiguous. The historical record simply does
not reflect that it was Congress’ “ ‘clear and manifest pur-
pose,’ ” id., at 516, to pre-empt attempts by States to utilize
their traditional zoning authority to protect the health and
welfare of minors. Absent such a manifest purpose, Massa-
chusetts and its sister States retain their traditional police
powers.8
containing approximately 14% of the State’s population. See U. S. Census
Bureau, Statistical Abstract of the United States 28, 47, 49 (1999) (provid-
ing population figures for 1998). The area in which cigarette advertising
is restricted is likely to be considerably less in less densely populated
portions of the State. And even on the interpretation of this data most
favorable to petitioners, the Massachusetts regulation still permits indoor
and outdoor cigarette advertising in at least 10% of the geographical area
of the State. In short, the regulation here is not the equivalent of a total
ban on cigarette advertising.
7 Hence, while I agree in large part with the substance of the arguments
proffered by the respondents and the United States on the pre-emption
issue, I reject their conclusion that the content/location distinction finds
expression in the limiting phrase “based on smoking and health.” See
Brief for Respondents 20; Brief for United States as Amicus Curiae 5;
accord, Penn Advertising of Baltimore, Inc. v. Mayor and City Council
of Baltimore, 63 F. 3d 1318 (CA4 1995). Instead, I would follow the First,
Second, and Seventh Circuits in concluding that a statute regulating the
location of advertising is not a “requirement or prohibition . . . with re-
spect to . . . advertising” within the meaning of the 1969 Act. See Consol-
idated Cigar Corp. v. Reilly, 218 F. 3d 30, 39–41 (CA1 2000) (case below);
Greater N. Y. Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100,
104–110 (CA2 1999); Federation of Advertising Industry Representatives,
Inc. v. Chicago, 189 F. 3d 633, 636–640 (CA7 1999).
8 The Court’s holding that federal law precludes States and localities
from protecting children from dangerous products within 1,000 feet of a
school is particularly ironic given the Court’s conclusion six years ago that

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II
On the First Amendment issues raised by petitioners, my
disagreements with the majority are less significant. I
would, however, reach different dispositions as to the 1,000-
foot rule and the height restrictions for indoor advertising,
and my evaluation of the sales practice restrictions differs
from the Court’s.
The 1,000-Foot Rule
I am in complete accord with the Court’s analysis of the
importance of the interests served by the advertising re-
strictions. As the Court lucidly explains, few interests are
more “compelling,” ante, at 564, than ensuring that minors
do not become addicted to a dangerous drug before they are
able to make a mature and informed decision as to the health
risks associated with that substance. Unlike other products
sold for human consumption, tobacco products are addictive
and ultimately lethal for many long-term users. When that
interest is combined with the State’s concomitant concern for
the effective enforcement of its laws regarding the sale of
tobacco to minors, it becomes clear that Massachusetts’ regu-
lations serve interests of the highest order and are, there-
fore, immune from any ends-based challenge, whatever level
of scrutiny one chooses to employ.
Nevertheless, noble ends do not save a speech-restricting
statute whose means are poorly tailored. Such statutes
the Federal Government lacks the constitutional authority to impose a
similarly motivated ban. See United States v. Lopez, 514 U. S. 549 (1995).
Despite the absence of any identified federal interest in creating “an invisi-
ble federal zone extending 1,000 feet beyond the (often irregular) bound-
aries of the school property,” as the majority construes it today, the “stat-
ute now before us forecloses the States from experimenting and exercising
their own judgment in an area to which States lay claim by right of history
and expertise,” id., at 583 (Kennedy, J., concurring). I wonder why a
Court sensitive to federalism concerns would adopt such a strange con-
struction of statutory language whose quite different purpose Congress
took pains to explain.

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600 LORILLARD TOBACCO CO. v. REILLY
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may be invalid for two different reasons. First, the means
chosen may be insufficiently related to the ends they pur-
portedly serve. See, e. g., Rubin v. Coors Brewing Co., 514
U. S. 476 (1995) (striking a statute prohibiting beer labels
from displaying alcohol content because the provision did not
significantly forward the government’s interest in the health,
safety, and welfare of its citizens). Alternatively, the stat-
ute may be so broadly drawn that, while effectively achiev-
ing its ends, it unduly restricts communications that are
unrelated to its policy aims. See, e. g., United States v.
Playboy Entertainment Group, Inc., 529 U. S. 803, 812 (2000)
(striking a statute intended to protect children from indecent
television broadcasts, in part because it constituted “a sig-
nificant restriction of communication between speakers and
willing adult listeners”). The second difficulty is most fre-
quently encountered when government adopts measures
for the protection of children that impose substantial re-
strictions on the ability of adults to communicate with one
another. See, e. g., Playboy Entertainment Group, Inc.,
supra; Reno v. American Civil Liberties Union, 521 U. S.
844 (1997); Sable Communications of Cal., Inc. v. FCC, 492
U. S. 115 (1989).
To my mind, the 1,000-foot rule does not present a tailor-
ing problem of the first type. For reasons cogently ex-
plained in our prior opinions and in the opinion of the Court,
we may fairly assume that advertising stimulates consump-
tion and, therefore, that regulations limiting advertising will
facilitate efforts to stem consumption.9 See, e. g., Rubin,
514 U. S., at 487; United States v. Edge Broadcasting Co.,
509 U. S. 418, 434 (1993); ante, at 557. Furthermore, if the
government’s intention is to limit consumption by a particu-
lar segment of the community—in this case, minors—it is
9 Moreover, even if it were our practice to require a particularized show-
ing of the effects of advertising on consumption, the respondents have met
that burden in this suit. See ante, at 557–561 (summarizing the evidence).

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appropriate, indeed necessary, to tailor advertising restric-
tions to the areas where that segment of the community con-
gregates—in this case, the area surrounding schools and
playgrounds.
However, I share the majority’s concern as to whether the
1,000-foot rule unduly restricts the ability of cigarette manu-
facturers to convey lawful information to adult consumers.
This, of course, is a question of line-drawing. While a ban
on all communications about a given subject would be the
most effective way to prevent children from exposure to such
material, the State cannot by fiat reduce the level of dis-
course to that which is “fit for children.” Butler v. Michi-
gan, 352 U. S. 380, 383 (1957); cf. Bolger v. Youngs Drug
Products Corp., 463 U. S. 60, 74 (1983) (“The level of dis-
course reaching a mailbox simply cannot be limited to that
which would be suitable for a sandbox”). On the other hand,
efforts to protect children from exposure to harmful material
will undoubtedly have some spillover effect on the free
speech rights of adults. See, e. g., FCC v. Pacifica Founda-
tion, 438 U. S. 726, 749–750, and n. 28 (1978).
Finding the appropriate balance is no easy matter.
Though many factors plausibly enter the equation when cal-
culating whether a child-directed location restriction goes
too far in regulating adult speech, one crucial question is
whether the regulatory scheme leaves available sufficient
“alternative avenues of communication.” Renton v. Play-
time Theatres, Inc., 475 U. S. 41, 50 (1986); Members of City
Council of Los Angeles v. Taxpayers for Vincent, 466 U. S.
789, 819 (1984) (Brennan, J., dissenting); accord, ante, at 563.
Because I do not think the record contains sufficient informa-
tion to enable us to answer that question, I would vacate the
award of summary judgment upholding the 1,000-foot rule
and remand for trial on that issue. Therefore, while I agree
with the majority that the Court of Appeals did not suffi-
ciently consider the implications of the 1,000-foot rule for
the lawful communication of adults, see ante, at 561–566,

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I dissent from the disposition reflected in Part III–B–2 of
the Court’s opinion.
There is no doubt that the 1,000-foot rule prohibits ciga-
rette advertising in a substantial portion of Massachusetts’
largest cities. Even on that question, however, the parties
remain in dispute as to the percentage of these urban areas
that is actually off limits to tobacco advertising. See ante,
at 562. Moreover, the record is entirely silent on the impact
of the regulation in other portions of the Commonwealth.
The dearth of reliable statistical information as to the scope
of the ban is problematic.
More importantly, the Court lacks sufficient qualitative in-
formation as to the areas where cigarette advertising is pro-
hibited and those where it is permitted. The fact that 80%
or 90% of an urban area is unavailable to tobacco advertise-
ments may be constitutionally irrelevant if the available
areas are so heavily trafficked or so central to the city’s cul-
tural life that they provide a sufficient forum for the propa-
gation of a manufacturer’s message. One electric sign in
Times Square or at the foot of the Golden Gate Bridge may
be seen by more potential customers than a hundred signs
dispersed in residential neighborhoods.
Finally, the Court lacks information as to other avenues
of communication available to cigarette manufacturers and
retailers. For example, depending on the answers to empir-
ical questions on which we lack data, the ubiquity of print
advertisements hawking particular brands of cigarettes
might suffice to inform adult consumers of the special advan-
tages of the respective brands. Similarly, print advertise-
ments, circulars mailed to people’s homes, word of mouth,
and general information may or may not be sufficient to
imbue the adult population with the knowledge that particu-
lar stores, chains of stores, or types of stores sell tobacco
products.10
10 As the above observations indicate, the analysis as to whether the
1,000-foot rule impermissibly curtails speech between adults will require
a particularized analysis that may well ask slightly different questions—

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In granting summary judgment for the respondents, the
District Judge treated the First Amendment issues in this
suit as pure questions of law and stated that “there are
no material facts in dispute concerning these issues.” 84
F. Supp. 2d 180, 183 (Mass. 2000). With due respect, I
disagree. While the ultimate question before us is one of
law, the answer to that question turns on complicated factual
questions relating to the practical effects of the regulations.
As the record does not reveal the answer to these disputed
questions of fact, the court should have denied summary
judgment to both parties and allowed the parties to present
further evidence.
I note, moreover, that the alleged “overinclusivity” of the
advertising regulations, ante, at 578 (Thomas, J., concurring
in part and concurring in judgment), while relevant to whether
the regulations are narrowly tailored, does not “beli[e]” the
claim that tobacco advertising imagery misleads children
into believing that smoking is healthy, glamorous, or sophis-
ticated, ibid. See Brief for American Legacy Foundation as
Amicus Curiae 4–5, and nn. 9, 10; Brief for City of Los
Angeles et al. as Amici Curiae 4 (documenting charge that
advertisements for cigarettes and smokeless tobacco target
underage smokers). For purposes of summary judgment,
the State conceded that the tobacco companies’ advertising
concerns lawful activity and is not misleading. Under the
Court’s disposition of the cases today, the State remains free
to proffer evidence that the advertising is in fact misleading.
See Virginia Bd. of Pharmacy v. Virginia Citizens Con-
sumer Council, Inc., 425 U. S. 748, 771 (1976) (“[M]uch com-
mercial speech is not provably false, or even wholly false, but
only deceptive or misleading. We foresee no obstacle to a
State’s dealing effectively with this problem”). I would va-
cate the grant of summary judgment to respondents on this
issue and remand for further proceedings.
and conceivably could reach different results—with regard to the constitu-
tionality of the restrictions as applied to manufacturers and retailers.

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Opinion of Stevens, J.
The Sales Practice and Indoor Advertising Restrictions
After addressing petitioners’ challenge to the sales prac-
tice restrictions imposed by the Massachusetts statute, the
Court concluded that these provisions did not violate the
First Amendment. I concur in that judgment, but write
separately on this issue to make two brief points.
First, I agree with the District Court and the Court of
Appeals that the sales practice restrictions are best analyzed
as regulating conduct, not speech. See 218 F. 3d, at 53.
While the decision how to display one’s products no doubt
serves a marginal communicative function, the same can be
said of virtually any human activity performed with the hope
or intention of evoking the interest of others. This Court
has long recognized the need to differentiate between legis-
lation that targets expression and legislation that targets
conduct for legitimate non-speech-related reasons but im-
poses an incidental burden on expression. See, e. g., United
States v. O’Brien, 391 U. S. 367 (1968). However difficult
that line may be to draw, it seems clear to me that laws
requiring that stores maintain items behind counters and
prohibiting self-service displays fall squarely on the conduct
side of the line. Restrictions as to the accessibility of dan-
gerous or legally restricted products are a common feature
of the regulatory regime governing American retail stores.
I see nothing the least bit constitutionally problematic in re-
quiring individuals to ask for the assistance of a salesclerk
in order to examine or purchase a handgun, a bottle of peni-
cillin, or a package of cigarettes.
Second, though I admit the question is closer, I would, for
similar reasons, uphold the regulation limiting tobacco ad-
vertising in certain retail establishments to the space five
feet or more above the floor.11 When viewed in isolation,
this provision appears to target speech. Further, to the ex-
11 This ban only applies to stores located within 1,000 feet of a school or
playground and contains an exception for adult-only establishments. See
ante, at 535, 536.

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tent that it does target speech it may well run into constitu-
tional problems, as the connection between the ends the stat-
ute purports to serve and the means it has chosen are
dubious. Nonetheless, I am ultimately persuaded that the
provision is unobjectionable because it is little more than an
adjunct to the other sales practice restrictions. As the
Commonwealth of Massachusetts can properly legislate the
placement of products and the nature of displays in its con-
venience stores, I would not draw a distinction between such
restrictions and height restrictions on related product adver-
tising. I would accord the Commonwealth some latitude in
imposing restrictions that can have only the slightest impact
on the ability of adults to purchase a poisonous product and
may save some children from taking the first step on the
road to addiction.
III
Because I strongly disagree with the Court’s conclusion on
the pre-emption issue, I dissent from Parts II–A and II–B of
its opinion. Though I agree with much of what the Court
has to say about the First Amendment, I ultimately disagree
with its disposition or its reasoning on each of the regula-
tions before us.12
12 Reflecting my partial agreement with the Court, I join Parts I, II–C,
II–D, and III–B–1 and concur in the judgment reflected in Part III–D.