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Post date: July 3 2001

Spitzer Urges Congress To Eliminate Prohibition Against State And Local Tobacco Advertising Laws

Attorney General Spitzer today called on the United States Congress to eliminate a federal law that prevents state and local governments from passing laws to restrict the advertising and promotion of cigarettes.

"New York and other states have a compelling interest in protecting future generations from a lifetime of tobacco use and disease," Spitzer said. "The federal government ought not stand in the way of these efforts."

Spitzer's comments were in response to a U.S. Supreme Court decision last week in which the State of Massachusetts cigarette advertising regulations were struck down. He warned that the decision could result in legal challenges to dozens of similar laws nationwide, including those in New York City, Albany, Buffalo, Rochester, Yonkers and in several towns on Long Island.

"Last week's Supreme Court decision was a setback for public health," the Attorney General said. " The question for Congress is whether this setback will be permanent or temporary. The states and local governments should be free to take appropriate steps to shield children from invasive cigarette advertising practices, but this cannot occur until Congress eliminates the federal prohibition against such laws."

Leading anti-smoking advocates joined Spitzer in urging Congress to act:

Russell Sciandra, Director of the Center for a Tobacco Free New York, said: "While Washington may lack the guts to take on Big Tobacco, New York and its localities have shown they are willing to regulate the industry's exploitative marketing practices. But until Congress lifts the federal preemption, we'll be fighting the battle with one hand tied behind our back."

Elizabeth C. Miller, CEO of the American Lung Association of New York , said: "We urge Congress to act swiftly to give states and local governments the ability to restrict tobacco advertising where children congregate. States and localities should not be blocked from protecting children from the onslaught of big tobacco's media machine."

Spitzer noted that 87,000 children in New York begin smoking each year and that many are encouraged to do so by tobacco advertising. Spitzer called the current prohibition against state and local tobacco advertising laws "outdated and absurd."

He noted federal law permits local advertising laws relating to cigars, which very few children smoke, but prevents such restrictions relating to cigarettes, which pose a far greater threat to the health of children.

The Supreme Court ruled that the Massachusetts regulations were preempted by a federal law (15 U.S.C. ? 1334) passed in 1965 to prevent states from requiring cigarette package warning labels different from those required by federal law. While also holding that the Massachusetts regulations violated the First Amendment, the court recognized the state's clear interest in preventing underage tobacco use and noted that more narrowly tailored regulations may be upheld on constitutional grounds.

(The court's decision does not affect the advertising restrictions set forth in the 1998 Master Settlement Agreement, which resolved lawsuits filed by New York and numerous other states against the tobacco industry, because that was a voluntary settlement approved in court.)

Attorney General Spitzer also highlighted a second statutory flaw that Congress should correct. Specifically, federal law (15 U.S.C. ? 1333) requires that all cigarette advertisements include the federally-mandated warning labels, but the law only applies to cigarette manufacturers and importers. Many tobacco retailers - particularly the rapidly increasing number of Internet and mail order sellers - advertise in magazines and local newspapers. These advertisements, seen by millions of children every day, contain no health warnings.

"The federal government should be a partner - not an opponent - in our effort to protect our children from the health risks of smoking," said Attorney General Spitzer. "Congress must amend the applicable law as soon as possible, in order to remove the handcuffs on local governments seeking to restrict tobacco advertising, and to ensure that all tobacco sellers include the federal warnings in their advertisements."

Spitzer said he will consult with members of the state's congressional delegation about developing appropriate legislation to address the issue.