Tobacco case to be considered for broader of commercial speech

WASHINGTON - The Supreme Court agreed yesterday to use a dispute over state limits on cigarette advertising to possibly consider giving commercial speech broader protection against government regulation.

The court said it will hear tobacco companies' argument that limits on cigarette and cigar advertising at retail stores in Massachusetts violate constitutional free-speech protections. In recent years, the justices have edged toward giving commercial speech the same constitutional protection as political or artistic expression.

The tobacco companies also say the limits are pre-empted by federal standards on cigarette ads.

In 1998, the tobacco industry agreed to pay the states almost $250 billion and to stop advertising on billboards or on signs posted in shopping malls, arenas and stadiums. The agreement allowed stores that sell cigarettes to display outdoor signs of no more than 14 square feet.

In 1999 the Massachusetts attorney general adopted a rule banning all outdoor advertising within 1,000 feet of any elementary or secondary school or public playground. Inside retail stores, cigarette ads must be placed higher than children's eye level - at least 5 feet above the floor - and tobacco products must be placed out of customers' reach.

A group of cigarette- and cigar-makers challenged the rules, saying they amounted to a virtual ban on outdoor advertising because most populated areas are within 1,000 feet of a school or playground.

A federal judge upheld the outdoor advertising ban but threw out the limits on advertising inside retail stores.