Tobacco prevention and control efforts suffered two setbacks in June, with the Supreme Court striking down advertising restrictions designed to protect children and the Bush administration offering to settle the government's lawsuit with the tobacco industry.

In the Supreme Court decision, announced June 28, the high court ruled that a Massachusetts law banning outdoor tobacco advertising near schools and playgrounds restricted free speech and was therefore unconstitutional. The 1999 law, though designed to protect children, was so broad that it could interfere with dissemination of information, wrote Justice Sandra Day O'Connor in the court's 5-4 majority opinion.

"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 by adults is a legal activity," O'Connor wrote. "We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products."

The court also said that the 1969 Federal Cigarette Labeling and Advertising Act, which requires health warnings on cigarette packaging, precluded states from regulating the location of cigarette advertising.

In response, Massachusetts Attorney General Tom Reilly said that he would ask Congress to amend the federal law so that it cannot be used "to shield this dangerous and addictive product from state regulation."

"Today's decision was bad news for children in Massachusetts, but it will not stop us in our fight to protect them from becoming the next generation of smokers," Reilly said. "We will not give up our fight to break the cycle of youth smoking."

The Massachusetts law addressed advertising both inside and outside stores within 1,000 feet of a school or playground. Such stores were prohibited from displaying outdoor advertising, advertising inside the store that was visible from the outside or indoor advertising that was visible at children's eye level.

The Supreme Court decision will have implications beyond Massachusetts' borders, warned the American Cancer Society, which filed a friend-of-the-court brief on the case.
"With this decision, it's more important than ever to implement proven strategies that keep children from being addicted to this deadly product," the organization said in a statement.

Justice Department may settle lawsuit
Also in June, the White House said that the Department of Justice will be working to negotiate a possible settlement on its ongoing lawsuit with tobacco companies. The suit, which is directed at six tobacco companies and organizations, seeks to hold the tobacco industry accountable for withholding information about tobacco dangers, making misleading statements, marketing to children and other deceitful practices.

The recent decision to pursue a settlement on the case came from within DoJ and was then approved by U.S. Attorney General John Ashcroft and President Bush, according to White House spokesman Ari Fleischer.

"In general, the president does believe that we are a much too litigious society, that there are far too many lawsuits," Fleischer said in his June 20 press briefing. "The Department of Justice is going to proceed on a two-track approach: one involving litigation, the other involving possible settlement talks, and the president supports that approach."

Philip Morris, one of the defendants in the case, acknowledged June 21 that it had been approached by the Justice Department. The company also reiterated its belief that the lawsuit is "without merit and should be dismissed."

The Campaign for Tobacco-Free Kids criticized the Justice Department's settlement offer, calling it "yet another way to let the tobacco industry off the hook for decades of deception and wrongdoing."

"The administration's approach gives every indication that the settlement is intended to be a sweetheart deal for the tobacco industry," said Matthew Myers, president of the Campaign for Tobacco-Free Kids. "This is clearly a political decision, not a legal judgment."

Before talks began on a settlement, many tobacco control advocates considered the lawsuit to be viable, especially in light of a September district court decision, in which a judge ruled that the Justice Department could legally proceed with racketeering charges against the tobacco industry.

"The case against the tobacco industry is strong, and American juries are holding them accountable," said John R. Garrison, the American Lung Association's chief executive officer. "After over four decades of deception, the American people deserve to have their day in court. Despite millions in campaign contributions, the tobacco industry does not deserve a pardon."

APHA sent out an action alert on its Affiliate listserv in June, asking members to register their "strong opinion that settlement of the lawsuit is unacceptable." The alert urged recipients to send a message to Bush through the Campaign for Tobacco-Free Kids' special Web page at www.dontpardonbigtobacco.org .

Additionally in June, the American Lung Association released a report on state legislative action during the first five months of the year, finding that state lawmakers are making little progress in protecting the public from the dangers of tobacco use. The report, "State Legislated Actions on Tobacco Initiatives: Midterm Update," found unsatisfactory progress in most state legislatures, many of which had adjourned for the year by the end of May.

"Not only was very little accomplished to further the cause of tobacco control, but more disturbingly, there is plenty of evidence of the tobacco industry's continuing influence in the nation's statehouses," the report said.

For more information on the state report, visit www.lungusa.org . For more information on the Supreme Court decision on Lorillard Tobacco v. Reilly, visit www.supremecourtus.gov .