Chicago Anti-Alcohol & Tobacco Billboard Ordinance

Stipulation of Facts:

2. The Federation of Advertising Industry Representatives, an incorporated association of owners and sellers of billboard space in Chicago, filed suit challenging the validity of the ordinance.

3. On 29 July, 1998, Judge Shadur of the U.S. District Court, N.D. Illinois, struck down the Ordinance (12 F.Supp.2nd 844), holding that it was preempted by the 1969 Federal Cigarette Labeling and Advertising Act, which 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 labelled in conformity with the provisions of this Act." 15 U.S.C. §1334(b).

4. According to the Senate Report accompanying the Act, this preemption provision was necessary "to avoid the chaos created by a multiplicity of conflicting [cigarette advertising] regulations. . . . The State preemption of regulation or prohibition with respect to cigarette advertising is narrowly phrased to preempt only State action based on smoking and health. 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, or the prohibition of smoking in public buildings, or similar police regulations. It is limited entirely to State or local requirements or prohibitions in the advertising of cigarettes."

5. At least a half dozen cities nationwide have adopted ordinances very similar to Chicago's. The Fourth Circuit, considering a challenge to the Baltimore ordinance, held it to be both constitutional and not preempted. Penn Advertising v. Schmoke, 63 F.3d 1318 (1995); remanded for further consideration in light of 44 Liquormart, 518 U. S. 1030 (1996); reaffirmed, 101 F.3d 332 (1996).

6. When the Ordinance was passed, the possession and consumption of cigarettes by minors was legal in Chicago.

7. According to the Centers for Disease Control, smoking-related illness is the leading cause of preventable death in the United States.

8. According to the CDC and the Food & Drug Administration, 82% of adults who have ever smoked began smoking before they were 18 years old.

9. According to the CDC, one out of every three children will die prematurely of a smoking-related illness.

10. According to the FDA, almost 3,000 young people in the United States become regular smokers every day, and nearly 1,000 of them will die prematurely from diseases related to tobacco use. Between 1991 and 1995, the percentage of eighth and tenth graders who smoke increased by 34 percent. In 1995, more than a third of 12th graders reported smoking in the past month, and daily smoking in that group was up to 21.6 percent. Among 10th graders, current use was up to 27.9 percent, and daily use was up to 16.3 percent.

11. The Harvard School of Public Health reports that tobacco companies spend approximately $5 billion annually on advertising.

12. John Hunt, a representative of the Outdoor Advertising Association of America, reports that there are two types of billboard advertisements: directional informative billboards and image reinforcement billboards, a secondary form of advertising meant to subconsciously reinforce brand image. Billboards are designed to be processed in about seven seconds. The visual impact of billboards makes them more likely to influence the younger generation, who are more visually geared and accustomed to the visual style and message of billboard advertisements.

13. An 1988 article in the journal American Demographics reports that the purpose of image reinforcement billboards is to develop name recognition.

14. In an internal memo, officers of R.J.Reynolds stated that "younger adult smokers are critical to RJR's long-term performance and profitability. . . . RJR should make a substantial long-term commitment of manpower and money dedicated to younger adult smoker programs."

15. A survey reported in the journal Advertising Age showed that 46% of children 8 to 13 years old say they most often see cigarette advertising on billboards.

16. A study done by RJ Reynolds reports that 51% of 10-17 year olds surveyed said that they have seen or heard or Joe Camel from a billboard advertisement.

17. A 1998 study reported in the Journal of Marketing found children are three times more sensitive than adults to cigarette advertising.

18. According to the American Lung Association and FDA research, young people's exposure to cigarette advertising is positively related to smoking behavior and their intention to smoke. According to these studies, 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.

19. According to the American Lung Association, advertising and promotion for tobacco products are often deceptive and project images of smoking as fun, sexy, glamorous, macho, and healthful.

20. The CDC reports that 87% of minors smoke the three most heavily advertised brands of cigarettes: Marlboro (60%), Camel (13.3%) or Newport (12.7%). In contrast, most adult smokers use generic or "value" category cigarette brands that rely on little or no image advertising.

21. A 1996 study published in the International Journal of Advertising examined total tobacco consumption in 24 European countries from 1964-1990. It found no reductions in consumption in the six countries that had implemented total bans on tobacco advertising.

22. According to a report published in the American Journal of Public Health, several studies indicate that when the laws against tobacco sales to minors are enforced, sales to minors can be sharply reduced.

23. City of Chicago police conduct "sting" operations where officers attempt to catch vendors in the act of selling tobacco products to minors.

24. The City of Chicago runs programs which educate minors about the health risks of tobacco use and aid those already addicted to break the habit.

25. "ASSIST", American Stop Smoking Intervention Study for Cancer Prevention, is a large project cosponsored by the National Cancer Institute to provide funding to participating states to, among other things, reduce smoking among youth through educational activities in schools and in communities.

26. The Safe and Drug-Free Schools and Communities Act of 1994 provides for tobacco education in the schools by reauthorizing the Drug-Free Schools and Communities Act of 1988 and providing $655 million for programs to prevent, among other things, the illegal use of tobacco.

27. The Massachusetts's Department of Health has initiated a $58 million program designed to prevent smoking among youth.

28. Both the American Medical Association and the National Academy of Science's Institute of Medicine have recommended an anti-smoking strategy based on limiting the appeal of tobacco products to children.

29. According to the organization Tobacco Free Kids, the only way to substantially and permanently combat the appeal of tobacco use by minors is a comprehensive, statewide prevention program employing a variety of approaches.

30. 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."

31. The director of the AMA'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."

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