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Federal judge strikes down Chicago's tobacco and alcohol billboard ordinance

By David Hudson
First Amendment Center

A federal judge on Wednesday struck down the city of Chicago's ordinance restricting the location of tobacco and alcohol billboards, finding the city law was preempted, or trumped, by federal law.

In September 1997, the city of Chicago passed a law that imposed substantial restrictions on the advertising of cigarettes and alcohol in "publicly visible" locations — primarily outdoor billboards, sides of buildings and free-standing signs.

An association of Chicago billboard owners, called the Federation of Advertising Industry Representatives, challenged the ordinance in federal court in October.

The advertising association argued that the city's ordinance was unconstitutional because (1) it was preempted by the Federal Cigarette Labeling and Advertising Act and (2) it violated the First Amendment.

The preemption argument comes from a provision in the Federal Cigarette Labeling and Advertising Act that provides: "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."

The federation argued that because the billboard restrictions were "based on smoking and health," they were trumped by federal law.

The city, on the other hand, argued that its ordinance was not preempted by federal law because it was not "based on smoking or health" but was passed in order to prohibit the illegal purchase of cigarettes by minors.

Federal District Court Judge Milton I. Shadur rejected the city's argument and ruled in Federation of Advertising Industry Representatives, Inc. v. City of Chicago that the Chicago ordinance was preempted by federal law.

The judge wrote: "But all of these efforts turn out (to make a bad pun) to be nothing more than a smoke screen. What instead proves to be fatal to the City's case is that the entire structure of its argument, erected as it is on the supposed distinction between a stated goal of preventing illegal cigarette sales to or purchases by minors (City's characterization of the ordinance) and a goal that links 'smoking and health' (and would thus come within the express prohibition of the Preemption Statute), collapses because it proves to be built on a foundation of quicksand — of City's outright misrepresentation of the Ordinance's underpinning."

The judge concluded that the city of Chicago's ordinance was "unquestionably based on smoking and health" and thus, was trumped by federal law.

Because the judge determined the statute was unconstitutional on federal preemption grounds, he did not even address the First Amendment arguments.

Paul Levy, attorney for the advertising federation, said: "I really hope and now expect that this decision will have a debilitating effect on municipalities' efforts across the country to enact restrictions on tobacco billboards.

"The judge correctly ruled that because the Chicago city ordinance was based on health considerations it was preempted by the Federal Cigarette Labeling and Advertising Act," Levy said. "The judge saw that the city's ostensible goal of preventing illegal consumption by minors was a smoke screen, or clearly a subterfuge, for their health concerns."

Commercial-speech expert Richard Kaplar said: "The ruling should remind cities that Washington has not given them a blank check to restrict tobacco advertising. Even though the decision did not reach the First Amendment question or set a commercial-speech precedent, it still means that the people of Chicago will have access to more, rather than less, information about this product."

Jennifer Hoyle, spokeswoman for the city of Chicago's law department, said: "We are disappointed with the judge's decision. Right now we are looking at all of our options, including redrafting the ordinance, but we are leaning towards an appeal."

Hoyle said the decision about whether to appeal would be made within the next few weeks, and possibly as soon as the next few days.

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