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FEDERATION OF ADVERTISING INDUS. REPRESENTATIVES V

July 29, 1998

FEDERATION OF ADVERTISING INDUSTRY REPRESENTATIVES, INC., Plaintiff,
v.
CITY OF CHICAGO, Defendant.



The opinion of the court was delivered by: SHADUR

MEMORANDUM OPINION AND ORDER

 This action involves a frontal attack by Federation of Advertising Industry Representatives, Inc. ("Federation" *fn1" ) on an ordinance ("Ordinance," now Chicago Municipal Code ("Code") § 5.17) that was initially adopted by the City of Chicago ("City") on September 10, 1997 and was then amended on February 6, 1998, and that imposes substantial prohibitions on the advertising of both cigarettes and alcohol in any "publicly visible location" (a term that is defined to include outdoor billboards, sides of buildings and free-standing signboards) in major areas of Chicago. To a substantial extent Federation's arguments are constitutional in nature, but in material part Federation challenges the validity of the ordinance in the face of the statutory preemption enacted by Congress as part of the Federal Cigarette Labeling and Advertising Act ("Act," 15 U.S.C. §§ 1331-1341).

 As the Act's title indicates, by its terms that statutory provision (Act § 1334, often referred to here as the "Preemption Statute") bears directly on the Ordinance's provisions regarding cigarette advertising. But as a later section of this opinion demonstrates, the Ordinance's invalidity in those terms also impacts on the related prohibition of alcohol advertising. In any event, both because the constitutional arguments (both pro and con) are largely arcane and because of the long-entrenched jurisprudential principle that arguments as to constitutionality should be faced only if some less fundamental basis for disposition is unavailable, *fn2" this opinion will address only the federal preemption issues.

 What is implicated in that respect are the meaning and applicability of this provision of the 1969 amendment to the Act--the Preemption Statute, found at Act § 1334(b):

 
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.

 In its original form that provision had created a much narrower scope of preemption, which was focused only on forbidding any variants (whether federal, state or local) on the federally-prescribed legend to be placed on cigarette packages:

 
No statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act. *fn3"

 But when in 1969 Congress strengthened the package warning label by shifting from a statement that cigarette smoking "may be hazardous" to the stronger statement that it "is dangerous," Congress not only broadened the preemptive force of the federal legislation but it did so in the less pinpointed language that has first been quoted in this paragraph.

 It should be emphasized that this Court holds no brief for smoking as a habit, nor does it any way minimize the enormous costs in health (or, to be even more plain, in deaths) that are annually sustained because of smoking. In accordance with what it would guess probably represents the views of the vast majority of Americans, this Court has been appalled by recent revelations about what is reported to be a level of total callousness on the part of the tobacco industry--an industry that, if those revelations are true, was fully aware that the old pejorative label of "coffin nails" was literally as well as figuratively an accurate description of cigarettes, and yet the industry deliberately concealed that knowledge to maintain and increase its profits.

 But the ruling that is set out hereafter is not a function of the desirability or undesirability of permitting either cigarette billboard advertising or the cigarette industry's encouragement of smoking by minors. After all, this Court's role is not a legislative one, in which it is free to formulate or implement social policy by its pronouncements. Instead this Court is called upon to determine whether Congress intended to leave open to local governments such as City the ability to prohibit cigarette advertising based on health concerns, an area that Congress has chosen to occupy in part by requiring strong warnings on cigarette packages, but in which area Congress has not chosen (as it might have) to impose a universal prohibition or partial prohibition of billboard advertising because of health concerns--or, with Congress not having chosen to take that route, in which it has also not chosen instead to announce legislatively that state and local governments have a continuing power to prohibit billboard advertising on health-related grounds.

 In terms of the appropriate construction and application of the Preemption Statute, all three of the submitters *fn4" seek to rely on Cipollone v. Liggett Group, Inc., 505 U.S. 504, 120 L. Ed. 2d 407, 112 S. Ct. 2608 (1992), a reliance that is scarcely surprising in view of that decision's having considered the very preemption provision that is implicated here. But Cipollone really does not mark out a path for resolution of the issue posed in this case. Not only did Cipollone address the preemption or nonpreemption of state-based activities in a very different context (the area of state common law claims based on the use of tobacco), but also Parts V and VI of Justice Stevens' Cipollone opinion (which might have held the greatest promise for casting light on the quite different questions involved here, at least in the language of the discussion if not via the actual decision) did not command a majority of the Court. Instead the Stevens opinion carried a plurality of four Justices, and it is not at all clear from the three-Justice partial concurrence and partial dissent authored by Justice Blackmun or from the two-Justice partial concurrence in the judgment and partial dissent authored by Justice Scalia just what might be considered as the Court's views on the problem that is presented here.

 What Cipollone does teach, however--found in the earlier portion of Justice Stevens' opinion in which he speaks for the Court--provides a valuable springboard for further analysis. To begin with, Cipollone, 505 U.S. at 517 (citations omitted) taught that the Act's preemptive scope was to be measured entirely by the express language in Act § 1334, without reference to any notions of implied preemption stemming from the substantive provisions of the legislation:

 
In our opinion, the pre-emptive scope of the 1965 Act and the 1969 Act is governed entirely by the express language in § 5 of each Act [Act § 1334]. When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a "reliable indicium of congressional intent with respect to state authority," "there is no need to infer congressional intent to preempt state laws from the substantive provisions" of the legislation. Such reasoning is a variant of the familiar principle of expressio unius est exclusio alterius : Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted. In this case, the other provisions of the 1965 and 1969 Acts offer no cause to look beyond § 5 of each Act. Therefore, we need only identify the domain expressly pre-empted by each of those sections. As the 1965 and 1969 provisions differ substantially, we consider each in turn.

 And next, Cipollone, id. at 518-19 expressly stated that the precise and narrow 1965 version of Act § 1334(b)--concededly very different from the 1969 version now at issue--did no more than to preempt state (as well as federal) rulemaking bodies from imposing labeling requirements other than those prescribed by Congress.

 With that background, it is time to look at the prohibitions that are set out in the Ordinance, which must be examined in light of the broader 1969 version of the Preemption Statute that is still in place today. Here is Code § 5.17 as enacted, immediately following the Ordinance's recital of fully 10 "Whereas" clauses that the City Council has specified as the basis supporting that enactment:

 
(a) No person may place any sign, poster, placard or graphic display that advertises cigarettes or alcoholic beverages in a publicly visible location. In this section, "publicly visible location" includes outdoor billboards, sides of buildings, and freestanding signboards. This section shall not apply to:
 
1. (A) With respect to cigarettes, the placement of signs, including advertisements, inside any premises used by a holder of a license required by chapter 4-64 of this code; or (B) With respect to alcoholic beverages, the placement of signs, including advertisements, inside any premises used by a holder of a license required by chapter 4-60 of this code; or (C) On commercial vehicles used for transporting cigarettes or alcoholic beverages;
 
2. (A) With respect to cigarettes, any sign that contains the name or slogan of the premises used by a holder of a license required by chapter 4-64 of this code that has been placed for the purpose of identifying such premises; or (B) With respect to alcoholic beverages, any sign that contains the name or slogan of the premises used by a holder of a license required by chapter 4-60 of this code that has been placed for the purpose of identifying such premises;
 
3. Any sign that contains a generic description of cigarettes or alcoholic beverages;
 
4. (A) With respect to cigarettes, any neon or electrically charged sign on premises used by a holder of a license required by chapter 4-64 of this code that is provided as part of a promotion of a particular brand of cigarettes; or (B) With respect to alcoholic beverages, any neon or electrically charged sign on premises used by a holder of a license required by chapter 4-60 of ...

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