Chicago Anti-Alcohol & Tobacco Billboard Ordinance

Brief for the City (1):

For the reasons stated herein, the City asks this Court to reverse the District Court's decision.

I. The federal statute does not pre-empt the Chicago Ordinance.

At the same time our founding father's endeavored to form a strong central government to unify the nation, they also believed in the preservation of State power because they felt the governing of daily life was best carried out by groups that were closely bound by belief and history. In fact, in order to ensure State power they passed the Tenth Amendment which states that "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States". Not surprisingly then, in the Court's history there has been a strong "assumption that the historic police powers of the States [are] not to be superseded by a Federal Act unless that [is] the clear and manifest purpose of Congress". Cipollone v. Ligget Group, Inc., 505 U.S. 504 (1992) (quoting Rice v. Santa Fe Elevator, Corp., 311 U.S. at 230 (1947). It is this standard of clarity that must be applied to every Federal attempt to direct State police powers and it is therefore this measure that must be used to analyze the statute and its relationship to the Ordinance currently before the Court.

However, before an analysis of this relationship can occur it is essential to state that the regulation of billboards has consistently been considered a police power appointed to the States. The designation of billboards as a State power was established as early as 1932 with the Packer case: "Billboards, street car signs, and placards and such are in a class by themselves. They are wholly intrastate ". Packer, Corp. v. Utah, 285 U.S. 105 (1932). Since these types of advertisements are considered "wholly intrastate", it is clear that they are viewed as local entities that are part of a State's police powers. With this in mind, it is now possible to turn to the statute itself.

Some might argue that the language of the statute distinctly prohibits any regulation of cigarette advertising, however the Senate Report accompanying the 1969 Act suggests otherwise. It explained that the revised preemption provision was necessary "to avoid the chaos created by a multiplicity of conflicting [cigarette advertising] regulations". Stip. ¶4. It further stated that "The State preemption of regulation or prohibition with respect to cigarette advertising is narrowly phrased...It 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 " Stip. ¶4. Even though a reading of the statute may suggest a general ban on restricting cigarette advertising, the Senate Report unquestionably contradicts this idea. Therefore, the real purpose behind this statute is quite vague. The motivating idea behind this statute becomes even less clear in light of the two purposes of Congress, articulated by Justice Stevens in Cipollone: "(1) adequately informing the public that cigarette smoking may be hazardous to health, and (2) protecting the national economy from the burden imposed by diverse, non-uniform advertising regulations".

Since both this statement and the Senate Report contradict a stricter reading of

the 1969 statute which would consist of a complete ban, it is evident that Congress' purpose is unclear. More importantly, due to the fact that there is no "clear and manifest purpose of Congress," Cipollone, the statute does not preempt the Ordinance's attempt to regulate billboards, an established State police power. Even if one were to further consider the purpose behind the statute, both the Senate report and the articulated intent in Cipollone to protect the "national economy" suggests that Congress was more concerned about interstate regulations than intrastate ones. Since both of these documents contain formal statements of purpose, logic suggests to adhere to them and to therefore, find the Chicago Ordinance not preempted by the Federal statute.

II. Tobacco and Alcohol billboards are not protected commercial speech.

A. There is an informational requirement for commercial speech to be protected.

Commercial speech was granted limited protection in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748 (1977), only because that speech was, "dissemination of information as to who is producing and selling what product, for what reason, and at what price". For this reason the court has protected price advertising, as in 44 Liquormart, Inc., v. Rhode Island, 517 U.S. 484 (1996) (liquor prices), and in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (legal services/prices), and specific product information, as in Rubin v. Coors Brewing Company, 514 U.S. 476 (1995) (alcoholic content on beer labels). It can be concluded from all previous commercial speech cases that, "the First Amendment's concern for commercial speech is based on the informational function of advertising" Central Hudson Gas v. Public Services Commission, 447 U.S. 557 (1980). Therefore, when there is no informational value to commercial speech, it does not receive constitutional protection.

B. Billboards covered by the ordinance are not meant to convey information.

Tobacco and alcohol billboards are not meant to convey information. According to John Hunt, there are two types of billboard advertisements: directional informative billboards ("Eat at Joe's, Exit 6") and image reinforcement billboards, a secondary form of advertising designed to subconsciously reinforce brand image. Stip. ¶12. Directional informative billboards are protected by the ordinance, which makes an exception for "any (tobacco or alcohol) sign that contains the name or slogan of the premises (where these products are sold)...placed for the purpose of identifying such premises." (Section 2 A&B of the ordinance). Under Central Hudson, these types of billboards are "dissemination of information as to who is producing and selling what product" and are thus protected commercial speech. In contrast, image reinforcement billboards are a "secondary form of advertising," Stip. ¶12., in which advertisers merely "develop name recognition". Stip. ¶13. These advertisements work in a visually subconscious way (designed to be completely processed in under 7 seconds of viewing time) and convey no information beyond reinforcing an already existent brand image. Stip. ¶12. In order to receive First Amendment protection, commercial speech must convey information. These billboards convey no information and are thus unprotected commercial speech.

III. Tobacco and Alcohol billboards fail Prong #1 of Central Hudson.

Since Central Hudson, the Supreme Court has used a 4-prong test to determine if commercial speech is given protection. The first prong requires that the speech be truthful and not promote unlawful activity (as was established by Central Hudson and 44 Liquormart. The second prong assumes that the "asserted governmental interest is substantial" Central Hudson. The third prong is to determine, "whether regulation (of the commercial speech) directly advances the governmental interest asserted" and the fourth prong is "whether it is not more extensive than is necessary to serve that interest." Tobacco and alcohol billboards fail on the first prong of the Central Hudson test, and therefore the rest of the test need not be applied.

A. These advertisements promote unlawful activity.

In the state of Illinois, it is illegal for anyone under the age of 18 to purchase tobacco products and under the age of 21 to purchase alcohol. However, alcohol and tobacco companies market their products towards underage children and this marketing has been successful in promoting illegal transactions. One internal tobacco industry memo from RJ Reynold's stated that "RJR should make a substantial long-term commitment of manpower and money dedicated to younger adult smoker programs". Stip. ¶ 14. One of the ways to target "younger adult smokers" is to saturate residential neighborhoods with tobacco advertisements, and especially billboards. It has been shown that billboards are more likely to influence the younger generation, which is more visually geared Stip. ¶12. This target marketing must be working, as 82% of adults who have ever smoked started before they were 18 years of age. Stip. ¶8. As further proof that advertisements directly encourage children to smoke: 86% of kids who buy their own cigarettes choose one of the three most heavily advertised brands: Marlboro (60%) Camel (13.3%) or Newport (12.7%). Stip. ¶20. In contrast, most adult smokers use generic or "value" category cigarette brands that rely on little, if any, image advertising. Richard Yoast, the director of the American Medical Association's Office of Alcohol and Other Drug Abuse states that "the beer industry is acting more and more like the tobacco industry children have seen 100,000 alcohol advertisements by the time they are 18 years old." Stip. ¶ 31. A 1996 study of 9-11 year olds showed that more children could recall the slogan associated with the Budweiser frogs than that for Smokey Bear or Tony the Tiger. Stip. ¶ 30. By encouraging children to buy alcohol and tobacco when they are underage, these billboards are promoting unlawful activity. The ordinance is constitutional under prong #1 of the Central Hudson test.

B. These advertisements are not truthful.

Prong 1 of Central Hudson requires that commercial speech must be "truthful and non-misleading" 44 Liquormart, in order to qualify for First Amendment protection. This requirement that protected commercial expression must be "truthful" stems from Virginia Pharmacy Board, where Justice Blackmun noted commercial speech's "greater objectivity" since "it may be more verifiable by its disseminator." Protected commercial speech satisfies the requirement of "greater objectivity" because it is truthful as "objectively verifiable information" 44 Liquormart. If the expression does not concern "objectively verifiable information," it is unprotected. The billboards covered under the Ordinance merely reinforce brand image and culture. Stip. ¶12. The brand image and culture displayed in these billboards is subjective, and not truthful as "objectively verifiable information." Since these billboards are not truthful, they are not protected expression under prong 1 of Central Hudson and are denied First Amendment protection.

IV. Even if these advertisements pass Prong #1, further application of the Central Hudson test shows the ordinance to be constitutional.

A. Prong #2 The City of Chicago has a substantial interest in reducing the illegal purchase of alcohol and tobacco by minors.

The Federation has admitted that the asserted State's interest in preventing underage purchases of tobacco and alcohol products is legitimate and satisfies prong 2 of Central Hudson.

B. Prong #3 The Ordinance directly advances the State's interest.

This ordinance directly advances the state's interest of reducing the illegal purchase of tobacco and alcohol by minors. Cigarette advertising helps young people decide what is normal and socially acceptable, and children who overestimate the prevalence of smoking are more likely to begin smoking Stip. ¶18. Children overestimate the prevalence of smoking when they are inundated with advertisements, as is the case with these billboards. The tobacco industry is the largest advertiser on billboards, and children walking past billboards on their way to school see the same message twice a day, every day. It is more intrusive than advertisements on television or in the print media, which can be monitored by parents. In 1932, the Court upheld a ban on billboards because billboards, "are constantly before the eyes of observers on the streets to be seen without the exercise of choice or volition on their part". Packer Corp. A survey conducted by the BKG Youth for Advertising Age showed that 46% of children 8-13 years old said they most often saw cigarette advertising on billboards Stip. ¶15, and a study by RJ Reynolds reported that 51% of 10-17 year olds surveyed said that they had seen or heard of Joe Camel from a billboard advertisement Stip. ¶16. Tobacco and alcohol billboards not only encourage children to smoke, but are affecting many children who have no way of diverting their eyes or avoiding the message. By limiting the amount of advertisements children are forced to see, the governmental interest of reducing illegal purchases by minors is directly advanced.

C. Prong #4 The Ordinance is not more extensive than necessary to serve the State's interest.

The regulation of billboards proposed by the Ordinance is no more extensive than necessary to achieve the state's interest in reducing the illegal purchase of alcohol and tobacco by minors. These transactions have been illegal for many years, and the City of Chicago has attempted to enforce the laws against these illegal transactions. However, despite the efforts of the City, minors continue to purchase tobacco and alcohol products. As Court precedent shows, while complete bans of commercial speech have never been upheld, Linmark Associates v. Willingboro, 431 U.S. 85; Cincinnati v. Discovery Network, 507 U.S. 410, the Court has permitted regulations of commercial expression which leave alternative channels of communication open, Florida Bar v. Went For It, Inc., 515 U.S. 618. This Ordinance clearly falls in the latter group, since it leaves numerous channels of information open to tobacco and alcohol advertisers to disseminate their commercial speech. Since the state has explored other options and found them unsuccessful, and the restriction is no more extensive that necessary and is "a means narrowly tailored to achieve the desired objective," Board of Trustees, SUNY v. Fox, 492 U.S. 469, the Ordinance satisfies Central Hudson Prong 4.

Conclusion

For the reasons stated above, the decision of the District Court should be reversed.

Respectfully submitted, April Perry
Meredith Casper
Chad Bell
Advocates for the City

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