Lorillard Tobacco Co. v. Reilly

[Argued April 25, 2001. Decided June 28, 2001, on certiorari to the United States Court of Appeals for the First Circuit, 218 F. 3d 30 (2000). No. 00–596 was argued together with No. 00–597, Altadis U. S. A. Inc. v. Reilly. Disposition, at 571: the judgment below is “affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.”]

[The Reporter’s line-up, verbatim — read it before the opinion. “O’Connor, J., delivered the opinion of the Court, Parts I, II-C, and II-D of which were unanimous; Parts III-A, III-C, and III-D of which were joined by Rehnquist, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ.; Part III-B-1 of which was joined by Rehnquist, C. J., and Stevens, Souter, Ginsburg, and Breyer, JJ.; and Parts II-A, II-B, III-B-2, and IV of which were joined by Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ. Kennedy, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined, post, p. 571. Thomas, J., filed an opinion concurring in part and concurring in the judgment, post, p. 572. Souter, J., filed an opinion concurring in part and dissenting in part, post, p. 590. Stevens, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Ginsburg and Breyer, JJ., joined, and in which Souter, J., joined as to Part I, post, p. 590.”]

[What that line-up means, Part by Part. Unlike Gade and Learning Resources*, no Part of this opinion is a plurality — the minimum is five. But the five are not the same five:*

• Parts I, II–C and II–D — unanimous, nine votes. Part II–C is the savings holding. • Parts II–A and II–B — five votes (O’Connor, Rehnquist, Scalia, Kennedy, Thomas). This is the preemption holding, and it is 5–4. • Parts III–A, III–C, III–D — six (the same five plus Souter). • Part III–B–1 — a different six (O’Connor, Rehnquist, Stevens, Souter, Ginsburg, Breyer). Scalia, Kennedy and Thomas are out; Stevens, Ginsburg and Breyer are in. Watch that flip. • Parts III–B–2 and IV — five (the original five).

Justice Stevens’s Part I, the preemption dissent, carries four votes: his own plus Ginsburg’s, Breyer’s and — expressly — Souter’s.]

[This case carries real U.S. Reports pin cites. The star markers — \*551 and the like — mark the first word of that page of volume 533. Where a marked omission drops text, the marker on the next kept passage carries the page forward.]

[What to watch for. First, two grounds that never meet. §1334(b) reaches cigarettes only. So the cigarette advertising rules fall on preemption (Part II–B, at 551) and the Court never reaches the First Amendment as to cigarettes; the smokeless-tobacco and cigar rules fall under Central Hudson (Parts III–B–2 and III–C). Part III opens by saying so in terms. Anyone who describes this as a case striking down tobacco billboard rules “on the First Amendment” has merged two holdings that the opinion keeps rigorously apart.

Second, “based on smoking and health” does two opposite jobs. In Part II–B it is read broadly, to reach any regulation “motivated by concerns about smoking and health” (548), and that is what preempts the cigarette rules. In Part II–C the same phrase saves neutral zoning: rules that “apply to cigarettes on equal terms with other products” are “not ‘based on smoking and health’” (552). One phrase, one axis: does the regulation single out tobacco?

Third, the Court cabins itself twice, and both sentences are easy to miss. At 550: “Our holding is not as broad as Justice Stevens states; we hold only that the FCLAA pre-empts state regulations targeting cigarette advertising.” And at 547, the “with respect to” holding rests entirely on express targeting — “there is no question about an indirect relationship between the regulations and cigarette advertising because the regulations expressly target cigarette advertising.” How far “with respect to” reaches for a rule that does not expressly target tobacco is not decided.

Fourth, the Senate Report collision. The Court’s only footnote, at 552, quotes S. Rep. No. 91–566, p. 12 (1969) to show that Congress preserved the power to regulate conduct. Justice Stevens, at 596, quotes the same page of the same report to show that Congress preserved the power to regulate location. That single collision teaches the whole case.

Fifth, this is an express-preemption case and nothing else. The phrases “field pre-emption,” “conflict pre-emption,” “implied pre-emption” and “savings clause” appear nowhere in any of the five opinions. Neither does the Court cite Rice*; it recites the assumption once, at 541–542, sourced to* Dillingham*, and never returns to it. The only mention of “the presumption against pre-emption” in the entire case is the Court describing the First Circuit’s reasoning before rejecting it, at 546.]*

*532 JUSTICE O’CONNOR delivered the opinion of the Court.

In January 1999, the Attorney General of Massachusetts promulgated comprehensive regulations governing the advertising and sale of cigarettes, smokeless tobacco, and cigars. 940 Code of Mass. Regs. §§21.01-21.07, 22.01-22.09 (2000). Petitioners, a group of cigarette, smokeless tobacco, and cigar manufacturers and retailers, filed suit in Federal District Court claiming that the regulations violate federal law and the United States Constitution. In large measure, the District Court determined that the regulations are valid and enforceable. The United States Court of Appeals for the First Circuit affirmed in part and reversed in part, concluding that the regulations are not pre-empted by federal law and do not violate the First Amendment. The first question presented for our review is whether certain cigarette advertising regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act (FCLAA), 79 Stat. 282, as amended, 15 U. S. C. § 1331 et seq. The second question presented is whether certain regulations governing the advertising and sale of tobacco products violate the First Amendment.

I

*533 In January 1999, pursuant to his authority to prevent unfair or deceptive practices in trade, Mass. Gen. Laws, ch. 93A, § 2 (1997), the Massachusetts Attorney General (Attorney General) promulgated regulations governing the sale and advertisement of cigarettes, smokeless tobacco, and cigars. The purpose of the cigarette and smokeless tobacco regulations is “to eliminate deception and unfairness in the way cigarettes and smokeless tobacco products are marketed, sold and distributed in Massachusetts in order to address the incidence of cigarette smoking and smokeless tobacco use by children under legal age… [and] in order to prevent access to such products by underage consumers.” 940 Code of Mass. Regs. §21.01 (2000). The similar purpose of the cigar regulations is “to eliminate deception and unfairness in the way cigars and little cigars are packaged, marketed, sold and distributed in Massachusetts [so that]… consumers may be adequately informed about the health *534 risks associated with cigar smoking, its addictive properties, and the false perception that cigars are a safe alternative to cigarettes… [and so that] the incidence of cigar use by children under legal age is addressed… in order to prevent access to such products by underage consumers.” Ibid. The regulations have a broader scope than the master settlement agreement, reaching advertising, sales practices, and members of the tobacco industry not covered by the agreement. The regulations place a variety of restrictions on outdoor advertising, point-of-sale advertising, retail sales transactions, transactions by mail, promotions, sampling of products, and labels for cigars.

The cigarette and smokeless tobacco regulations being challenged before this Court provide:

“(2) Retail Outlet Sales Practices. Except as otherwise provided in [§21.04(4)], it shall be an unfair or deceptive act or practice for any person who sells or distributes cigarettes or smokeless tobacco products through a retail outlet located within Massachusetts to engage in any of the following retail outlet sales practices:

“(c) Using self-service displays of cigarettes or smokeless tobacco products;

“(d) Failing to place cigarettes and smokeless tobacco products out of the reach of all consumers, and in a location accessible only to outlet personnel.” §§ 21.04(2)(c)-(d).

“(5) Advertising Restrictions. Except as provided in [§ 21.04(6)], it shall be an unfair or deceptive act or practice for any manufacturer, distributor or retailer to engage in any of the following practices:

“(a) Outdoor advertising, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the *535 outside of the establishment, in any location that is within a 1,000 foot radius of any public playground, playground area in a public park, elementary school or secondary school;

“(b) Point-of-sale advertising of cigarettes or smokeless tobacco products any portion of which is placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adult-only retail establishment.” §§21.04(5)(a)-(b).

[The parallel cigar regulations, 940 Code Mass. Regs. §§22.06(1), (2) and (5), which track the cigarette and smokeless-tobacco provisions above, are omitted.]

*536 The term “advertisement” is defined as:

“any oral, written, graphic, or pictorial statement or representation, made by, or on behalf of, any person who manufactures, packages, imports for sale, distributes or sells within Massachusetts [tobacco products], the purpose or effect of which is to promote the use or sale of the product. Advertisement includes, without limitation, any picture, logo, symbol, motto, selling message, graphic display, visual image, recognizable color or pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, those used for any brand of [tobacco product]. This includes, without limitation, utilitarian items and permanent or semi-permanent fixtures with such indicia of product identification such as lighting fixtures, awnings, display cases, clocks and door mats, but does not include utilitarian items with a volume of 200 cubic inches or less.” §§21.03, 22.03.

Before the effective date of the regulations, February 1, 2000, members of the tobacco industry sued the Attorney General in the United States District Court for the District *537 of Massachusetts. Four cigarette manufacturers (Lorillard Tobacco Company, Brown & Williamson Tobacco Corporation, R. J. Reynolds Tobacco Company, and Philip Morris Incorporated), a maker of smokeless tobacco products (U. S. Smokeless Tobacco Company), and several cigar manufacturers and retailers claimed that many of the regulations violate the Commerce Clause, the Supremacy Clause, the First and Fourteenth Amendments, and Rev. Stat. § 1979, 42 U. S. C. §1983. The parties sought summary judgment. 76 F. Supp. 2d 124, 127 (1999); 84 F. Supp. 2d 180,183 (2000).

In its first ruling, the District Court considered the Supremacy Clause claim that the FCLAA, 15 U. S. C. § 1331 et seq., pre-empts the cigarette advertising regulations. 76 F. Supp. 2d, at 128-134. The FCLAA prescribes the health warnings that must appear on packaging and in advertisements for cigarettes. The FCLAA contains a pre-emption provision that prohibits a State from imposing any “requirement or prohibition based on smoking and health… with respect to the advertising or promotion of… cigarettes.” § 1334(b). The FCLAA’s pre-emption provision does not cover smokeless tobacco or cigars.

The District Court explained that the central question for purposes of pre-emption is whether the regulations create a predicate legal duty based on smoking and health. The court reasoned that to read the pre-emption provision to proscribe any state advertising regulation enacted due to health concerns about smoking would expand Congress’ purpose beyond a reasonable scope and leave States powerless to regulate in the area. The court concluded that restrictions on the location of advertising are not based on smoking and health and thus are not pre-empted by the FCLAA. The District Court also concluded that a provision that permitted retailers to display a black and white “tombstone” sign reading “Tobacco Products Sold Here,” 940 Code of Mass. Regs. § 21.04(6) (2000), was pre-empted by the FCLAA.

[Omitted: the District Court’s First Amendment ruling and the First Circuit’s opinion, which affirmed in part and reversed in part on both grounds.]

*540 The Court of Appeals stayed its mandate pending disposition of a petition for a writ of certiorari. App. 13. The cigarette manufacturers and U. S. Smokeless Tobacco Company filed a petition, challenging the Court of Appeals’ decision with respect to the outdoor and point-of-sale advertising regulations on pre-emption and First Amendment grounds, and the sales practices regulations on First Amendment grounds. The cigar companies filed a separate petition, again raising a First Amendment challenge to the outdoor advertising, point-of-sale advertising, and sales practices regulations. We granted both petitions, 531 U. S. 1068 (2001), to resolve the conflict among the Courts of Appeals with respect to whether the FCLAA pre-empts cigarette advertising regulations like those at issue here, cf. Lindsey v. Tacoma-Pierce County Health Dept., 195 F. 3d 1065 (CA9 1999), and to decide the important First Amendment issues presented in these cases.

II

Before reaching the First Amendment issues, we must decide to what extent federal law pre-empts the Attorney General’s regulations. The cigarette petitioners contend that the FCLAA, 15 U. S. C. § 1331 et seq., pre-empts the Attorney General’s cigarette advertising regulations.

A

Article VI, cl. 2, of the United States Constitution commands that the laws of the United States “shall be the supreme Law of the Land;… any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” See also McCulloch v. Maryland, 4 Wheat. 316, 427 (1819) (“It is of the very essence of supremacy, to remove all obstacles to its action within its own sphere, and so to modify every power vested in subordinate governments”). This relatively clear and simple mandate has generated considerable discussion in cases where we have had to discern whether Congress has pre-empted state action in a *541 particular area. State action may be foreclosed by express language in a congressional enactment, see, e. g., Cipollone v. Liggett Group, Inc., 505 U. S. 504, 517 (1992), by implication from the depth and breadth of a congressional scheme that occupies the legislative field, see, e. g., Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153 (1982), or by implication because of a conflict with a congressional enactment, see, e. g., Geier v. American Honda Motor Co., 529 U. S. 861, 869-874 (2000).

In the FCLAA, Congress has crafted a comprehensive federal scheme governing the advertising and promotion of cigarettes. The FCLAA’s pre-emption provision provides:

“(a) Additional statements

“No statement relating to smoking and health, other than the statement required by section 1333 of this title, shall be required on any cigarette package.

“(b) State regulations

“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.” 15 U. S. C. § 1334.

The FCLAA’s pre-emption provision does not cover smokeless tobacco or cigars.

In these cases, our task is to identify the domain expressly pre-empted, see Cipollone, supra, at 517, because “an express definition of the pre-emptive reach of a statute… supports a reasonable inference… that Congress did not intend to pre-empt other matters,” Freightliner Corp. v. Myrick, 514 U. S. 280, 288 (1995). Congressional purpose is the “ultimate touchstone” of our inquiry. Cipollone, supra, at 516 (internal quotation marks omitted). Because “federal law is said to bar state action in [a] fiel[d] of traditional state regulation,” namely, advertising, see Packer Corp. v. Utah, 285 U. S. 105, 108 (1932), we “wor[k] on the assumption that *542 the historic police powers of the States [a]re not to be superseded by the Federal Act unless that [is] the clear and manifest purpose of Congress.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997) (internal quotation marks omitted). See also Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996).

Our analysis begins with the language of the statute. Hughes Aircraft Co. v. Jacobson, 525 U. S. 432, 438 (1999). In the pre-emption provision, Congress unequivocally precludes the requirement of any additional statements on cigarette packages beyond those provided in § 1333. 15 U. S. C. § 1334(a). Congress further precludes States or localities from imposing any requirement or prohibition based on smoking and health with respect to the advertising and promotion of cigarettes. § 1334(b). Without question, the second clause is more expansive than the first; it employs far more sweeping language to describe the state action that is pre-empted. We must give meaning to each element of the pre-emption provision. We are aided in our interpretation by considering the predecessor pre-emption provision and the circumstances in which the current language was adopted. See Medtronic, supra, at 486; McCarthy v. Bronson, 500 U. S. 136, 139 (1991); K mart Corp. v. Cartier, Inc., 486 U. S. 281, 291 (1988).

In 1964, the groundbreaking Report of the Surgeon General’s Advisory Committee on Smoking and Health concluded that “[c]igarette smoking is a health hazard of sufficient importance in the United States to warrant appropriate remedial action.” Department of Health, Education, and Welfare, U. S. Surgeon General’s Advisory Committee, Smoking and Health 33. In 1965, Congress enacted the FCLAA as a proactive measure in the face of impending regulation by federal agencies and the States. Pub. L. 89-92,79 Stat. 282. See also Cipollone, supra, at 513-515. The purpose of the FCLAA was twofold: to inform the public adequately about the hazards of cigarette smoking, and to protect the national *543 economy from interference due to diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to the relationship between smoking and health. Pub. L. 89-92, § 2. The FCLAA prescribed a label for cigarette packages: “Caution: Cigarette Smoking May Be Hazardous to Your Health.” §4. The FCLAA also required the Secretary of Health, Education, and Welfare (HEW) and the Federal Trade Commission (FTC) to report annually to Congress about the health consequences of smoking and the advertising and promotion of cigarettes. § 5.

Section 5 of the FCLAA included a pre-emption provision in which “Congress spoke precisely and narrowly.” Cipol-lone, supra, at 518. Subsection (a) prohibited any requirement of additional statements on cigarette packaging. Subsection (b) provided that “[n]o 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.” Section 10 of the FCLAA set a termination date of July 1, 1969, for these provisions. As we have previously explained, “on their face, [the preemption] provisions merely prohibited state and federal rulemaking bodies from mandating particular cautionary statements on cigarette labels [subsection (a)] or in cigarette advertisements [subsection (b)].” Cipollone, supra, at 518.

The FCLAA was enacted with the expectation that Congress would reexamine it in 1969 in light of the developing information about cigarette smoking and health. H. R. Rep. No. 586, 89th Cong., 1st Sess., 6 (1965); 111 Cong. Rec. 16541 (1965). In the intervening years, Congress received reports and recommendations from the HEW Secretary and the FTC. S. Rep. No. 91-566, pp. 2-6 (1969). The HEW Secretary recommended that Congress strengthen the warning, require the warning on all packages and in advertisements, and publish tar and nicotine levels on packages and in advertisements. Id., at 4. The FTC made similar and additional *544 recommendations. The FTC sought a complete ban on radio and television advertising, a requirement that broadcasters devote time for health hazard announcements concerning smoking, and increased funding for public education and research about smoking. Id., at 6. The FTC urged Congress not to continue to prevent federal agencies from regulating cigarette advertising. Id., at 10. In addition, the Federal Communications Commission (FCC) had concluded that advertising which promoted the use of cigarettes created a duty in broadcast stations to provide information about the hazards of cigarette smoking. Id., at 6-7.

In 1969, House and Senate committees held hearings about the health effects of cigarette smoking and advertising by the cigarette industry. The bill that emerged from the House of Representatives strengthened the warning and maintained the pre-emption provision. The Senate amended that bill, adding the ban on radio and television advertising, and changing the pre-emption language to its present form. H. R. Conf. Rep. No. 91-897, pp. 4-5 (1970).

The final result was the Public Health Cigarette Smoking Act of 1969, in which Congress, following the Senate’s amendments, made three significant changes to the FCLAA. Pub. L. 91-222, §2, 84 Stat. 87. First, Congress drafted a new label that read: “Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health.” FCLAA, §4. Second, Congress declared it unlawful to advertise cigarettes on any medium off electronic communication subject to the jurisdiction of the FCCr-J6. Finally, Congress enacted the current pre-emption provision, which proscribes any “requirement or prohibition based on smoking and health… imposed under State law with respect to the advertising or promotion” of cigarettes. § 5(b). The new subsection (b) did not pre-empt regulation by federal agencies, freeing the FTC to impose warning requirements in cigarette advertising. See Cipollone, 505 U. S., at 515. The new pre-emption provision, like its predecessor, only applied to cigarettes, and not other tobacco products.

*545 In 1984, Congress again amended the FCLAA in the Comprehensive Smoking Education Act. Pub. L. 98-474, 98 Stat. 2200. The purpose of the Act was to “provide a new strategy for making Americans more aware of any adverse health effects of smoking, to assure the timely and widespread dissemination of research findings and to enable individuals to make informed decisions about smoking.” §2. The Act established a series of warnings to appear on a rotating basis on cigarette packages and in cigarette advertising, § 4, and directed the Health and Human Services Secretary to create and implement an educational program about the health effects of cigarette smoking, §3.

The FTC has continued to report on trade practices in the cigarette industry. In 1999, the first year since the master settlement agreement, the FTC reported that the cigarette industry expended $8.24 billion on advertising and promotions, the largest expenditure ever. FTC, Cigarette Report for 1999, p. 1 (2000). Substantial increases were found in point-of-sale promotions, payments made to retailers to facilitate sales, and retail offers such as buy one, get one free, or product giveaways. Id., at 4-5. Substantial decreases, however, were reported for outdoor advertising and transit advertising. Id., at 2. Congress and federal agencies continue to monitor advertising and promotion practices in the cigarette industry.

The scope and meaning of the current pre-emption provision become clearer once we consider the original preemption language and the amendments to the FCLAA. Without question, “the plain language of the pre-emption provision in the 1969 Act is much broader.” Cipollone, 505 U. S., at 520. Rather than preventing only “statements,” the amended provision reaches all “requirement^] or prohibition^]… imposed under State law.” And, although the former statute reached only statements “in the advertising,” the current provision governs “with respect to the advertising or promotion” of cigarettes. See ibid. Congress expanded the pre-emption provision with respect to the *546 States, and at the same time, it allowed the FTC to regulate cigarette advertising. Congress also prohibited cigarette advertising in electronic media altogether. Viewed in light of the context in which the current pre-emption provision was adopted, we must determine whether the FCLAA preempts Massachusetts’ regulations governing outdoor and point-of-sale advertising of cigarettes.

B

The Court of Appeals acknowledged that the FCLAA pre-empts any “requirement or prohibition based on smoking and health… with respect to the advertising or promotion of… cigarettes,” 15 U. S. C. § 1334(b), but concluded that the FCLAA does not nullify Massachusetts’ cigarette advertising regulations. The court concentrated its analysis on whether the regulations are “with respect to” advertising and promotion, relying on two of its sister Circuits to conclude that the FCLAA only pre-empts regulations of the content of cigarette advertising. The Court of Appeals also reasoned that the Attorney General’s regulations are a form of zoning, a traditional area of state power; therefore the presumption against pre-emption applied.

The cigarette petitioners maintain that the Court of Appeals’ “with respect to” analysis is inconsistent with the FCLAA’s statutory text and legislative history, and gives the States license to prohibit almost all cigarette advertising. Petitioners also maintain that there is no basis for construing the pre-emption provision to prohibit only content-based advertising regulations.

Although they support the Court of Appeals’ result, the Attorney General and United States as amicus curiae do not fully endorse that court’s textual analysis of the pre-emption provision. Instead, they assert that the cigarette advertising regulations are not pre-empted because they are not “based on smoking and health.” The Attorney General and *547 the United States also contend that the regulations are not pre-empted because they do not prescribe the content of cigarette advertising and they fall squarely within the State’s traditional powers to control the location of advertising and to protect the welfare of children.

Turning first to the language in the pre-emption provision relied upon by the Court of Appeals, we reject the notion that the Attorney General’s cigarette advertising regulations are not “with respect to” advertising and promotion. We disagree with the Court of Appeals’ analogy to the Employee Retirement Income Security Act of 1974 (ERISA). In some cases concerning ERISA’s pre-emption of state law, the Court has had to decide whether a particular state law “relates to” an employee benefit plan covered by ERISA even though the state law makes no express reference to such a plan. See, e.g., California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S., at 324-325. Here, however, there is no question about an indirect relationship between the regulations and cigarette advertising because the regulations expressly target cigarette advertising. 940 Code of Mass. Regs. § 21.04(5) (2000).

Before this Court, the Attorney General focuses on a different phrase in the pre-emption provision: “based on smoking and health.” The Attorney General argues that the cigarette advertising regulations are not “based on smoking and health,” because they do not involve health-related content in cigarette advertising but instead target youth exposure to cigarette advertising. To be sure, Members of this Court have debated the precise meaning of “based on smoking and health,” see Cipollone, supra, at 529, n. 7 (plurality opinion), but we cannot agree with the Attorney General’s narrow construction of the phrase.

As Congress enacted the current pre-emption provision, Congress did not concern itself solely with health warnings for cigarettes. In the 1969 amendments, Congress not only *548 enhanced its scheme,to warn the public about the hazards of cigarette smoking, but also sought to protect the public, including youth, from being inundated with images of cigarette smoking in advertising. In pursuit of the latter goal, Congress banned electronic media advertising of cigarettes. And to the extent that Congress contemplated additional targeted regulation of cigarette advertising, it vested that authority in the FTC.

The context in which Congress crafted the current preemption provision leads us to conclude that Congress prohibited state cigarette advertising regulations motivated by concerns about smoking and health. Massachusetts has attempted to address the incidence of underage cigarette smoking by regulating advertising, see 940 Code of Mass. Regs. §21.01 (2000), much like Congress’ ban on cigarette advertising in electronic media. At bottom, the concern about youth exposure to cigarette advertising is intertwined with the concern about cigarette smoking and health. Thus the Attorney General’s attempt to distinguish one concern from the other must be rejected.

The Attorney General next claims that the State’s outdoor and point-of-sale advertising regulations for cigarettes are not pre-empted because they govern the location, and not the content, of advertising. This is also Justice Stevens’ main point with respect to pre-emption. Post,’ at 595 (opinion concurring in part, concurring in judgment in part, and dissenting in part).

The content versus location distinction has some surface appeal. The pre-emption provision immediately follows the section of the FCLAA that prescribes warnings. See 15 U. S. C. §§ 1333, 1334. The pre-emption provision itself refers to cigarettes “labeled in conformity with” the statute. § 1334(b). But the content/location distinction cannot be squared with the language of the pre-emption provision, which reaches all “requirements” and “prohibitions” “imposed under State law.” A distinction between the content *549 of advertising and the location of advertising in the FCLAA also cannot be reconciled with Congress’ own location-based restriction, which bans advertising in electronic media, but not elsewhere. See § 1335. We are not at liberty to pick and choose which provisions in the legislative scheme we will consider, see post, at 596, n. 5 (opinion of Stevens, J.), but must examine the FCLAA as a whole.

Moreover, any distinction between the content and location of cigarette advertising collapses once the implications of that approach are fully considered. At oral argument, the Attorney General was pressed to explain what types of state regulations of cigarette advertising, in his view, are preempted by the FCLAA. The Attorney General maintained that a state law that required cigarette retailers to remove the word “tobacco” from advertisements, or required cigarette billboards to be blank, would be pre-empted if it were a regulation of “health-related content.” Tr. of Oral Arg. 41, 42. The Attorney General also maintained, however, that a complete ban on all cigarette advertising would not be preempted because Congress did not intend to invade local control over zoning. Id., at 42-44. The latter position clearly follows from the factual distinction between content and location, but it finds no support in the text of the FCLAA’s pre-emption provision. We believe that Congress wished to ensure that “a State could not do through negative mandate (e. g., banning all cigarette advertising) that which it already was forbidden to do through positive mandate (e. g., mandating particular cautionary statements).” Cipollone, 505 U. S., at 539 (Blackmun, J., joined by Kennedy and Souter, JJ., concurring in part and dissenting in part). See also Vango Media, Inc. v. New York, 34 F. 3d 68 (CA2 1994) (holding pre-empted a regulation that required one public health message for every four cigarette advertisements).

Justice Stevens, post, at 595-598, maintains that Congress did not intend to displace state regulation of the location of cigarette advertising. There is a critical distinction, *550 however, between generally applicable zoning regulations, see infra, at 551-552, and regulations targeting cigarette advertising. The latter type of regulation, which is inevitably motivated by concerns about smoking and health, squarely contradicts the FCLAA. The FCLAA’s comprehensive warnings, advertising restrictions, and pre-emption provision would make little sense if a State or locality could simply target and ban all cigarette advertising.

Justice Stevens finds it ironic that we conclude that “federal law precludes States and localities from protecting children from dangerous products within 1,000 feet of a school,” in light of our prior conclusion that the “Federal Government lacks the constitutional authority to impose a similarly motivated ban” in United States v. Lopez, 514 U. S. 549 (1995). Post, at 598-599, n. 8. Our holding is not as broad as Justice Stevens states; we hold only that the FCLAA pre-empts state regulations targeting cigarette advertising. States remain free to enact generally applicable zoning regulations, and to regulate conduct with respect to cigarette use and sales. Infra, at 552. The reference to Lopez is also inapposite. In Lopez, we held that Congress exceeded the limits of its Commerce Clause power in the Gun-Free School Zones Act of 1990, which made it a federal crime to possess a firearm in a school zone. 514 U. S., at 558-568. These cases, by contrast, concern the Supremacy Clause and the doctrine of pre-emption as applied in a case where Congress expressly precluded certain state regulations of cigarette advertising. Massachusetts did not raise a constitutional challenge to the FCLAA, and we are not confronted with whether Congress exceeded its constitutionally delegated authority in enacting the FCLAA.

In sum, we fail to see how the FCLAA and its pre-emption provision permit a distinction between the specific concern about minors and cigarette advertising and the more general concern about smoking and^ health in cigarette advertising, especially in light of the fact that Congress crafted a *551 legislative solution for those very concerns. We also conclude that a distinction between state regulation of the location as opposed to the content of cigarette advertising has no foundation in the text of the pre-emption provision. Congress pre-empted state cigarette advertising regulations like the Attorney General’s because they would upset federal legislative choices to require specific warnings and to impose the ban on cigarette advertising in electronic media in order to address concerns about smoking and health. Accordingly, we hold that the Attorney General’s outdoor and point-of-sale advertising regulations targeting cigarettes are preempted by the FCLAA.

C

Although the FCLAA prevents States and localities from imposing special requirements or prohibitions “based on smoking and health” “with respect to the advertising or promotion” of cigarettes, that language still leaves significant power in the hands of States to impose generally applicable zoning regulations and to regulate conduct. As we noted in Cipollone, “each phrase within [the provision] limits the universe of [state action] pre-empted by the statute.” 505 U. S., at 524 (plurality opinion).

For instance, the FCLAA does not restrict a State or locality’s ability to enact generally applicable zoning restrictions. We have recognized that state interests in traffic safety and esthetics may justify zoning regulations for advertising. See Metromedia, Inc. v. San Diego, 453 U. S. 490, 507-508 (1981). See also St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269, 274 (1919); Thomas Cusack Co. v. Chicago, 242 U. S. 526, 529-531 (1917). Although Congress has taken into account the unique concerns about cigarette smoking and health in advertising, there is no indication that Congress intended to displace local community interests in general regulations of the location of billboards or large marquee advertising, or that Congress intended cigarette advertisers to be afforded special treatment in that regard. *552 Restrictions on the location and size of advertisements that apply to cigarettes on equal terms with other products appear to be outside the ambit of the pre-emption provision. Such restrictions are not “based on smoking and health.”

The FCLAA also does not foreclose all state regulation of conduct as it relates to the sale or use of cigarettes. The FCLAA’s pre-emption provision explicitly governs state regulations of “advertising or promotion.” Accordingly, the FCLAA does not pre-empt state laws prohibiting cigarette sales to minors. To the contrary, there is an established congressional policy that supports such laws; Congress has required States to prohibit tobacco sales to minors as a condition of receiving federal block grant funding for substance abuse treatment activities. 106 Stat. 394, 388, 42 U. S. C. §§ 300x-26(a)(1), 300x-21.

*[Footnote : The Senate Report explained that the pre-emption provision “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.” S. Rep. No. 91-566, p. 12 (1969).]

In Massachusetts, it is illegal to sell or distribute tobacco products to persons under the age of 18. Mass. Gen. Laws, ch. 270, § 6 (2000). Having prohibited the sale and distribution of tobacco products to minors, the State may prohibit common inchoate offenses that attach to criminal conduct, such as solicitation, conspiracy, and attempt. Cf. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of New York, 447 U. S., at 563-564; Carey v. Population Seros. Int’l, 431 U. S. 678, 701 (1977); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 772 (1976); 60 Fed. Reg. 41330-41332 (1995) (citing evidence that industry may be attempting to induce individuals under 18 to smoke cigarettes). States and localities also have at their disposal other means of regulating conduct to ensure that minors do not obtain cigarettes. See Part III-D, infra.

*553 D

The smokeless tobacco petitioners argue that if the State’s outdoor and point-of-sale advertising regulations for cigarettes are pre-empted, then the same advertising regulations with respect to smokeless tobacco must be invalidated because they cannot be severed from the cigarette provisions. Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, p. 4, n. 5. The District Court did not reach the severability issue with respect to the advertising provisions that are before this Court. 76 F. Supp. 2d, at 134, n. 11. The Court of Appeals also did not reach severability because that court likewise concluded that the cigarette advertising regulations were not pre-empted. 218 F. 3d, at 37, n. 3. We decline to reach an issue that was not decided below. National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 470 (1999).

III

By its terms, the FCLAA’s pre-emption provision only applies to cigarettes. Accordingly, we must evaluate the smokeless tobacco and cigar petitioners’ First Amendment challenges to the State’s outdoor and point-of-sale advertising regulations. The cigarette petitioners did not raise a pre-emption challenge to the sales practices regulations. Thus, we must analyze the cigarette as well as the smokeless tobacco and cigar petitioners’ claim that certain sales practices regulations for tobacco products violate the First Amendment.

A

For over 25 years, the Court has recognized that commercial speech does not fall outside the purview of the First Amendment. See, e. g., Virginia Bd. of Pharmacy, supra, at 762. Instead, the Court has afforded commercial speech a measure of First Amendment protection “ ‘commensurate’ ” with its position in relation to other constitutionally guaranteed expression. See, e. g., Florida Bar v. Went For It, Inc., *554 515 U. S. 618, 623 (1995) (quoting Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 477 (1989)). In recognition of the “distinction between speech proposing a commer-* cial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech,” Central Hudson, supra, at 562 (internal quotation marks omitted), we developed a framework for analyzing regulations of commercial speech that is “substantially similar” to the test for time, place, and manner restrictions, Board of Trustees of State Univ. of N. Y. v. Fox, supra, at 477. The analysis contains four elements:

“At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Central Hudson, supra, at 566.

[Omitted: the Court’s refusal of the invitation to discard Central Hudson — “we see “no need to break new ground”” — and its rejection of a least-restrictive-means reading of the fourth step.]

*555 Only the last two steps of Central Hudson’s four-part analysis are at issue here. The Attorney General has assumed for purposes of summary judgment that petitioners’ speech is entitled to First Amendment protection. 218 F. 3d, at 43; 84 F. Supp. 2d, at 185-186. With respect to the second step, none of the petitioners contests the importance of the State’s interest in preventing the use of tobacco products by minors. Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, p. 41; Brief for Petitioner U. S. Smokeless Tobacco Co. in Nos. 00-596 and 00-597, at 16; Brief for Petitioners Altadis U. S. A. Inc. et al. in No. 00-597, p. 8.

[Omitted: two paragraphs elaborating the third step of Central Hudson and the evidentiary showing it requires.]

*556 The last step of the Central Hudson analysis “complements” the third step, “asking whether the speech restriction is not more extensive than necessary to serve the interests that support it.” Greater New Orleans, swpra, at 188. We have made it clear that “the least restrictive means” is not the standard; instead, the case law requires a reasonable “ ‘fit between the legislature’s ends and the means chosen to accomplish those ends,… a means narrowly tailored to achieve the desired objective.’ ” Went For It, Inc., supra, at 682 (quoting Board of Trustees of State Univ. of N. Y. v. Fox, supra, at 480). Focusing on the third and fourth steps of the Central Hudson analysis, we first address the outdoor advertising and point-of-sale advertising regulations for smokeless tobacco and cigars. We then address the sales practices regulations for all tobacco products.

B

The outdoor advertising regulations prohibit smokeless tobacco or cigar advertising within a 1,000-foot radius of a school or playground. 940 Code of Mass. Regs. §§21.04(5)(a), 22.06(5)(a) (2000). The District Court and Court of Appeals concluded that the Attorney General had identified a real problem with underage use of tobacco products, that limiting youth exposure to advertising would combat that problem, and that the regulations burdened no more speech than necessary to accomplish the State’s goal. 218 F. 3d, at 44-53; 84 F. Supp. 2d, at 186-193. The smokeless tobacco and cigar petitioners take issue with all of these conclusions.

1

[Omitted: Part III–B–1 in the main — roughly five pages of FDA findings, brand-recognition studies and smokeless-tobacco and cigar usage data. Note the alignment on this Part: it was joined by the Chief Justice and by Justices Stevens, Souter, Ginsburg and Breyer — not by Justices Scalia, Kennedy or Thomas. The conclusion follows.]

*561 Our review of the record reveals that the Attorney General has provided ample documentation of the problem with underage use of smokeless tobacco and cigars. In addition, we disagree with petitioners’ claim that there is no evidence that preventing targeted campaigns and limiting youth exposure to advertising will decrease underage use of smokeless tobacco and cigars. On this record and in the posture of summary judgment, we are unable to conclude that the Attorney General’s decision to regulate advertising of smokeless tobacco and cigars in an effort to combat the use of tobacco products by minors was based on mere “speculation [and] conjecture.” Edenfield v. Fane, 507 U. S., at 770.

2

Whatever the strength of the Attorney General’s evidence to justify the outdoor advertising regulations, however, we conclude that the regulations do not satisfy the fourth step of the Central Hudson analysis. The final step of the Central Hudson analysis, the “critical inquiry in this case,” requires a reasonable fit between the means and ends of the regulatory scheme. 447 U. S., at 569. The Attorney General’s regulations do not meet this standard. The broad sweep of the regulations indicates that the Attorney General did not “carefully calculate] the costs and benefits associated with the burden on speech imposed” by the regulations. Cincinnati v. Discovery Network, Inc., 507 U. S. 410, 417 (1993) (internal quotation marks omitted).

The outdoor advertising regulations prohibit any smokeless tobacco or cigar advertising within 1,000 feet of schools *562 or playgrounds. In the District Court, petitioners maintained that this prohibition would prevent advertising in 87% to 91% of Boston, Worcester, and Springfield, Massachusetts. 84 F. Supp. 2d, at 191. The 87% to 91% figure appears to include not only the effect of the regulations, but also the limitations imposed by other generally applicable zoning restrictions. See App. 161-167. The Attorney General disputed petitioners’ figures but “concede[d] that the reach of the regulations is substantial.” 218 F. 3d, at 50. Thus, the Court of Appeals concluded that the regulations prohibit advertising in a substantial portion of the major metropolitan areas of Massachusetts. Ibid.

The substantial geographical reach of the Attorney General’s outdoor advertising regulations is compounded by other factors. “Outdoor” advertising includes not only advertising located outside an establishment, but also advertising inside a store if that advertising is visible from outside the store. The regulations restrict advertisements of any size and the term advertisement also includes oral statements. 940 Code of Mass. Regs. §§21.03, 22.03 (2000).

In some geographical areas, these regulations would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers. The breadth and scope of the regulations, and the process by which the Attorney General adopted the regulations, do not demonstrate a careful calculation of the speech interests involved.

[Omitted: the balance of the tailoring analysis — the point that the Attorney General did not consider how the 1,000-foot rule would operate in urban, suburban and rural areas differently, and the discussion of the range of communications swept in.]

*565 We conclude that the Attorney General has failed to show that the outdoor advertising regulations for smokeless tobacco and cigars are not more extensive than necessary to advance the State’s substantial interest in preventing underage tobacco use. Justice Stevens urges that the Court remand the case for further development of the factual record. Post, at 601-603. We believe that a remand is inappropriate in these cases because the State had ample opportunity to develop a record with respect to tailoring (as it had to justify its decision to regulate advertising), and additional evidence would not alter the nature of the scheme before the Court. See Greater New Orleans, 527 U. S., at 189, n. 6.

A careful calculation of the costs of a speech regulation does not mean that a State must demonstrate that there is no incursion on legitimate speech interests, but a speech regulation cannot unduly impinge on the speaker’s ability to propose a commercial transaction and the adult listener’s opportunity to obtain information about products. After *566 reviewing the outdoor advertising regulations, we find the calculation in these cases insufficient for purposes of the First Amendment.

C

Massachusetts has also restricted indoor, point-of-sale advertising for smokeless tobacco and cigars. Advertising cannot be “placed lower than five feet from the floor of any retail establishment which is located within a one thousand foot radius of” any school or playground. 940 Code of Mass. Regs. §§21.04(5)(b), 22.06(5)(b) (2000). The District Court invalidated these provisions, concluding that the Attorney General had not provided a sufficient basis for regulating indoor advertising. 84 F. Supp. 2d, at 192-193, 195. The Court of Appeals reversed. 218 F. 3d, at 50-51. The court explained: “We do have some misgivings about the effectiveness of a restriction that is based on the assumption that minors under five feet tall will not, or will less frequently, raise their view above eye-level, but we find that such [a] determination falls within that range of reasonableness in which the Attorney General is best suited to pass judgment.” Id., at 51.

We conclude that the point-of-sale advertising regulations fail both the third and fourth steps of the Central Hudson analysis. A regulation cannot be sustained if it “ ‘provides only ineffective or remote support for the government’s purpose,’ ” Edenfield, 507 U. S., at 770 (quoting Central Hudson, 447 U. S., at 564), or if there is “little chance” that the restriction will advance the State’s goal, Greater New Orleans, supra, at 193 (internal quotation marks omitted). As outlined above, the State’s goal is to prevent minors from using tobacco products and to curb demand for that activity by limiting youth exposure to advertising. The 5-foot rule does not seem to advance that goal. Not all children are less than 5 feet tall, and those who are certainly have the ability to look up and take in their surroundings.

*567 By contrast to Justice Stevens, post, at 604-605, we do not believe this regulation can be construed as a mere regulation of conduct under United States v. O’Brien, 391 U. S. 367 (1968). To qualify as a regulation of communicative action governed by the scrutiny outlined in O’Brien, the State’s regulation must be unrelated to expression. Texas v. Johnson, 491 U. S. 397, 403 (1989). See also Erie v. Pap’s A. M., 529 U. S., at 289-296 (plurality opinion). Here, Massachusetts’ height restriction is an attempt to regulate directly the communicative impact of indoor advertising.

*567 D

The Attorney General also promulgated a number of regulations that restrict sales practices by cigarette, smokeless tobacco, and cigar manufacturers and retailers. Among other restrictions, the regulations bar the use of self-service displays and require that tobacco products be placed out of the reach of all consumers in a location accessible only to salespersons. 940 Code of Mass. Regs. §§ 21.04(2)(c)-(d), 22.06(2)(c)-(d) (2000). The cigarette petitioners do not challenge the sales practices regulations on pre-emption grounds. Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, at 5, n. 2. Two of the cigarette petitioners (Brown & Williamson Tobacco Corporation and Lorillard Tobacco Company), petitioner U. S. Smokeless Tobacco *568 Company, and the cigar petitioners challenge the sales practices regulations on First Amendment grounds. The cigar petitioners additionally challenge a provision that prohibits sampling or promotional giveaways of cigars or little cigars. 940 Code of Mass. Regs. § 22.06(l)(a) (2000).

[Omitted: the District Court’s conclusion on the sales practices regulations and the parties’ briefing on them.]

*569 We reject these contentions. Assuming that petitioners have a cognizable speech interest in a particular means of displaying their products, cf. Cincinnati v. Discovery Network, Inc., 507 U. S. 410 (1993) (distribution of a magazine through newsracks), these regulations withstand First Amendment scrutiny.

Massachusetts’ sales practices provisions regulate conduct that may have a communicative component, but Massachusetts seeks to regulate the placement of tobacco products for reasons unrelated to the communication of ideas. See O’Brien, supra, at 382. See also Pap’s A. M., 529 U. S., at 289 (plurality opinion); id., at 310 (Souter, J., concurring in part and dissenting in part); Johnson, supra, at 403. We conclude that the State has demonstrated a substantial interest in preventing access to tobacco products by minors and has adopted an appropriately narrow means of advancing that interest. See O’Brien, supra, at 382.

[Omitted: two paragraphs applying O’Brien to the self-service display ban and the out-of-reach requirement, and a paragraph declining to reach the cigar sampling ban as insufficiently briefed.]

*570 We conclude that the sales practices regulations withstand First Amendment scrutiny. The means chosen by the State are narrowly tailored to prevent access to tobacco products by minors, are unrelated to expression, and leave open alternative avenues for vendors to convey information about products and for would-be customers to inspect products before purchase.

IV

We have observed that “tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States.” FDA v. Brown & Williamson Tobacco Corp., 529 U. S., at 161. From a policy perspective, it is understandable for the States to attempt to prevent minors from using tobacco products before they reach an age where they are capable of weighing *571 for themselves the risks and potential benefits of tobacco use, and other adult activities. Federal law, however, places limits on policy choices available to the States.

In these cases, Congress enacted a comprehensive scheme to address cigarette smoking and health in advertising and pre-empted state regulation of cigarette advertising that attempts to address that same concern, even with respect to youth. The First Amendment also constrains state efforts to limit advertising of tobacco products, because so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.

To the extent that federal law and the First Amendment do not prohibit state action, States and localities remain free to eombat the problem of underage tobacco use by appropriate means. The judgment of the United States Court of Appeals for the First Circuit is therefore affirmed in part and reversed in part, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

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JUSTICE KENNEDY, with whom Justice Scalia joins, concurring in part and concurring in the judgment.

The obvious overbreadth of the outdoor advertising restrictions suffices to invalidate them under the fourth part of the test in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980). As a result, in my view, there is no need to consider whether the restrictions satisfy the third part of the test, a proposition about which there is considerable doubt. Cf. post, at 583-584 (Thomas, J., concurring in part and concurring in judgment). Neither are we required to consider whether Central Hudson should be retained in the face of the substantial objections that can be made to it. See post, at 574-582 (opinion of Thomas, J.). My continuing concerns that the test gives *572 insufficient protection to truthful, nonmisleading commercial speech require me to refrain from expressing agreement with the Court’s application of the third part of Central Hudson. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 501-504 (1996) (opinion of Stevens, J., joined by Kennedy and Ginsburg, JJ.). With the exception of Part III — B—1, then, I join the opinion of the Court.

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JUSTICE THOMAS, concurring in part and concurring in the judgment.

I join the opinion of the Court (with the exception of Part III — B—1) because I agree that the Massachusetts cigarette advertising regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act, 15 U. S. C. § 1331 et seq. I also agree with the Court’s disposition of the First Amendment challenges to the other regulations at issue here, and I share the Court’s view that the regulations fail even the intermediate scrutiny of Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980). At the same time, I continue to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as “commercial.” See.W Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 518 (1996) (Thomas, J., concurring in part and concurring in judgment). I would subject all of the advertising restrictions to strict scrutiny and would hold that they violate the First Amendment.

[The remainder of Justice Thomas’s opinion — eighteen pages arguing that strict scrutiny should govern commercial speech and attacking the “vice exception” — belongs to the First Amendment materials and is omitted here.]

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JUSTICE SOUTER, concurring in part and dissenting in part.

I join Parts I, II-C, II-D, III-A, III-B-1, III-C, and III-D of the Court’s opinion. I join Part I of the opinion of Justice Stevens concurring in part, concurring in the judgment in part, and dissenting in part. I respectfully dissent from Part III-B-2 of the opinion of the Court, and like Justice Stevens would remand for trial on the constitutionality of the 1,000-foot limit.

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JUSTICE STEVENS, with whom Justice Ginsburg and Justice Breyer join, and with whom Justice Souter joins as to Part I, concurring in part, concurring in the judgment in part, and dissenting in part.

This suit presents two separate sets of issues. The first— involving pre-emption — is straightforward. The second— *591 involving the First Amendment — is more complex. Because I strongly disagree with the Court’s conclusion that the Federal Cigarette Labeling and Advertising Act of 1965 (FCLAA or Act), 15 U. S. C. § 1331 et seq., as amended, precludes States and localities from regulating the location of cigarette advertising, I dissent from Parts II-A and II-B of the Court’s opinion. On the First Amendment questions, I agree with the Court both that the outdoor advertising restrictions imposed by Massachusetts serve legitimate and important state interests and that the record does not indicate that the measures were properly tailored to serve those interests. Because the present record does not enable us to adjudicate the merits of those claims on summary judgment, I would vacate the decision upholding those restrictions and remand for trial on the constitutionality of the outdoor advertising regulations. Finally, because I do not believe that either the point-of-sale advertising restrictions or the sales practice restrictions implicate significant First Amendment concerns, I would uphold them in their entirety.

I

As the majority acknowledges, ante, at 541-542, under prevailing principles, any examination of the scope of a preemption provision must “ ‘start with the assumption that the historic police powers of the States [are] not to be superseded by… Federal Act unless that [is] the clear and manifest purpose of Congress.’” Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516 (1992) (quoting Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947)); see also, e. g., California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc., 519 U. S. 316, 325 (1997); Medtronic, Inc. v. Lohr, 518 U. S. 470, 475 (1996). As the regulations at issue in this suit implicate two powers that lie at the heart of the States’ traditional police power — the power to regulate land usage and the power to protect the health and safety of minors — our precedents require that the Court construe the pre-emption provision “narrow[ly].” Id., at 485; *592 see also Cipollone, 505 U. S., at 518. If Congress’ intent to pre-empt a particular category of regulation is ambiguous, such regulations are not pre-empted.

[Footnote 1: See, e. g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 146-147 (1963) (“[W]e are not to conclude that Congress legislated the ouster of this [state] statute… in the absence of an unambiguous congressional mandate to that effect”); Cipollone, 505 U. S., at 533 (Blackmun, J., joined by Kennedy and Souter, JJ., concurring in part, concurring in judgment in part, and dissenting in part) (“The principles of federalism and respect for state sovereignty that underlie the Court’s reluctance to find pre-emption where Congress has not spoken directly to the issue apply with equal force where Congress has spoken, though ambiguously. In such cases, the question is not whether Congress intended to pre-empt state regulation, but to what extent. We do not, absent unambiguous evidence, infer a scope of pre-emption beyond that which clearly is mandated by Congress’ language” (emphasis deleted)).]

The text of the pre-emption provision must be viewed in context, with proper attention paid to the history, structure, and purpose of the regulatory scheme in which it appears. See, e. g., Medtronic, 518 U. S., at 484-486; New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655-656 (1995); Cipollone, 505 U. S., at 513-515, 519-520, 529, 530, n. 27; accord, ante, at 542. An assessment of the scope of a pre-emption provision must give effect to a “reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law.” Medtronic, 518 U. S., at 486.

[Footnote 2: Cf. Central Hanover Bank & Trust Co. v. Commissioner, 159 F. 2d 167, 169 (CA2 1947) (L. Hand, J.) (“There is no more likely way to misapprehend the meaning of language — be it in a constitution, a statute, a will or a contract — than to read the words literally, forgetting the object which the document as a whole is meant to secure”).]

This task, properly performed, leads inexorably to the conclusion that Congress did not intend to pre-empt state and local regulations of the location of cigarette advertising when it adopted the provision at issue in this suit. In both 1965 and 1969, Congress made clear the purposes of its regulatory *593 endeavor, explaining with precision the federal policies motivating its actions. According to the Acts, Congress adopted a “comprehensive Federal Program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health,” for two reasons: (1) to inform the public that smoking may be hazardous to health and (2) to ensure that commerce and the interstate economy not be “impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.” 15 U. S. C. § 1331.

In order to serve the second purpose it was necessary to pre-empt state regulation of the content of both cigarette labels and cigarette advertising. If one State required the inclusion of a particular warning on the package of cigarettes while another State demanded a different formulation, cigarette manufacturers would have been forced into the difficult and costly practice of producing different packaging for use in different States. To foreclose the waste of resources that would be entailed by such a patchwork regulatory system, Congress expressly precluded other regulators from requiring the placement on cigarette packaging of any “statement relating to smoking and health.” § 1334(a). Similar concerns applied to cigarette advertising. If different regulatory bodies required that different warnings or statements be used when cigarette manufacturers advertised their products, the text and layout of a company’s ads would have had to differ from locale to locale. The resulting costs would have come with little or no health benefit. Moreover, given the nature of publishing, it might well have been the cáse that cigarette companies would not have been able to advertise in national publications without violating the laws of some jurisdictions. In response to these concerns, Congress adopted a parallel provision pre-empting state and local regulations requiring inclusion in cigarette advertising of any “statement relating to smoking and health.” § 1334(b) (1970 ed.) (amended 1970).

*594 There was, however, no need to interfere with state or local zoning laws or other regulations prescribing limitations on the location of signs or billboards. Laws prohibiting a cigarette company from hanging a billboard near a school in Boston in no way conflict with laws permitting the hanging of such a billboard in other jurisdictions. Nor would such laws even impose a significant administrative burden on would-be advertisers, as the great majority of localities impose general restrictions on signage, thus requiring advertisers to examine local law before posting signs whether or not cigarette-specific laws are pre-empted. See Greater N. Y. Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100, 109 (CA2 1999) (“Divergent local zoning restrictions on the location of sign advertising are a commonplace feature of the national landscape and cigarette advertisers have always been bound to observe them”). Hence, it is unsurprising that Congress did not include any provision in the 1965 Act pre-empting location restrictions.

The Public Health Cigarette Smoking Act of 1969 (1969 Act), §2, 84 Stat. 87, made two important changes in the pre-emption provision. First, it limited the applicability of the advertising prong to States and localities, paving the way for further federal regulation of cigarette advertising. FCLAA, § 4. Second, it expanded the scope of the advertising pre-emption provision. Where previously States were prohibited from requiring particular statements in cigarette advertising based on health concerns, they would henceforth be prohibited from imposing any “requirement or prohibition based on smoking and health… with respect to the advertising or promotion” of cigarettes. § 5(b), 15 U. S. C. § 1334(b).

[Footnote 3: In Cipollone v. Liggett Group, Inc., 505 U. S. 504, 521 (1992), we held that one of the consequences of this change in language was that after 1969 the statute pre-empts some common-law actions.]

*595 Ripped from its context, this provision could theoretically be read as a breathtaking expansion of the limitations imposed by the 1965 Act. However, both our precedents and common sense require us to read statutory provisions — and, in particular, pre-emption clauses — in the context of both their neighboring provisions and of the history and purpose of the statutory scheme. See swpra, at 592. When so viewed, it is quite clear that the 1969 amendments were intended to expand the provision to capture a narrow set of content regulations that would have escaped pre-emption under the prior provision, not to fundamentally reorder the division of regulatory authority between the Federal and State Governments.

All signs point inescapably to the conclusion that Congress only intended to pre-empt content regulations in the 1969 Act. It is of crucial importance that, in making modifications of the pre-emption provision, Congress did not alter the statement laying out the federal policies the provision was intended to serve. See 15 U. S. C. § 1331. To this day, the stated federal policies in this area are (1) to inform the public of the dangers of cigarette smoking and (2) to protect the cigarette companies from the burdens of confusing and contradictory state regulations of their labels and advertisements. See ibid. The retention of this provision unchanged is strong evidence that Congress’ only intention in expanding the pre-emption clause was to capture forms of content regulation that had fallen through the cracks of the prior provision — for example, state laws prohibiting cigarette manufacturers from making particular claims in their advertising or requiring them to utilize specified layouts or include particular graphics in their marketing.

[Footnote 4: Because of the nature of magazine publishing and distribution, it is conceivable that a State or locality might cause the kind of regulatory confusion the statute was drafted to prevent by adopting a law prohibiting the advertising of cigarettes in any publication distributed within its *596 boundaries. There is at least a modicum of support for the suggestion that Congress may have intended the pre-emption of such restrictions. See id., at 515, n. 11 (noting that California was considering such a ban at the time Congress was considering the 1969 Act). However, the concerns posed by the diverse regulation of national publications are not present with regard to the local regulation of the location of signs and billboards.]

*596 The legislative history of the provision also supports such a reading. The record does not contain any evidence that Congress intended to expand the scope of pre-emption beyond content restrictions. To the contrary, the Senate Report makes it clear that the changes merely “clarified” the scope of the original provision. S. Rep. No. 91-566, p. 12 (1969). Even as amended, Congress perceived the provision as “narrowly phrased” and emphasized that its purpose is to “avoid the chaos created by a multiplicity of conflicting regulations.” Ibid. According to the Senate Report, the changes “in no way affect the power of any state or political subdivision of any state with respect to… the sale of cigarettes to minors… or similar police regulations.” Ibid.

[Footnote 5: At one point, the Court briefly argues that it would be wrong to conclude that Congress intended to preclude only content restrictions, because it imposed a location restriction (a ban on television and radio advertising) in another provision of the same bill. See ante, at 548-549. This argument is something of a non sequitur. The fact that Congress, in adopting a comprehensive legislative package, chose to impose a federal location restriction for a national medium has no bearing on whether, in a separate provision, the Legislature intended to strip States and localities of the authority to impose location restrictions for purely local advertising media.]

In analyzing the scope of the pre-emption provision, the Courts of Appeals have almost uniformly concluded that state and local laws regulating the location of billboards and signs are not pre-empted. See Consolidated Cigar Corp. v. Reilly, 218 F. 3d 30, 39-41 (CA1 2000) (case below); Greater New York Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100, 104-110 (CA2 1999); Federation of Advertising Industry Representatives, Inc. v. Chicago, 189 F. 3d 633, *597 686-640 (CA7 1999); Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F. 3d 1318 (CA4 1995); contra, Lindsey v. Tacoma-Pierce Cty. Health Dept., 195 F. 3d 1065 (CA9 1999). The decisions in those cases relied heavily upon our discussion of the same pre-emption provision in Cipollone, 505 U. S., at 515-524. In Cipollone, while the Members of the Court expressed three different opinions concerning the scope of pre-emption mandated by the provision, those differences related entirely to which, if any, of the plaintiff’s claims based on the content of the defendants’ advertising were pre-empted by § 5. Nary a word in any of the three Cipollone opinions supports the thesis that § 5 should be interpreted to pre-empt state regulation of the location of signs advertising cigarettes. Indeed, seven of the nine Justices subscribed to opinions that explicitly tethered the scope of the pre-emption provision to Congress’ concern with “diverse, nonuniform, and confusing cigarette labeling and advertising regulations.” Id., at 519; id., at 534, 541 (opinion of Blackmun, J., joined by Kennedy and Souter, JJ.).

I am firmly convinced that, when Congress amended the pre-emption provision in 1969, it did not intend to expand the application of the provision beyond content regulations. *598 I, therefore, find the conclusion inescapable that the zoning regulation at issue in this suit is not a “requirement or prohibition… with respect to… advertising” within the meaning of the 1969 Act. Even if I were not so convinced, however, I would still dissent from the Court’s conclusion with regard to pre-emption, because the provision is, at the very least, ambiguous. The historical record simply does not reflect that it was Congress’ “‘clear and manifest purpose,’ ” id., at 516, to pre-empt attempts by States to utilize their traditional zoning authority to protect the health and welfare of minors. Absent such a manifest purpose, Massachusetts and its sister States retain their traditional police powers.

[Footnote 6: Petitioners suggest in passing that Massachusetts’ regulation amounts to a “near-total ba[n],” Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, p. 22, and thus is a de facto regulation of the content of cigarette ads. But we need not consider today the circumstances in which location restrictions approximating a total ban might constitute regulation of content and thus be pre-empted by the Act, because petitioners have failed to introduce sufficient evidence to create a genuine issue as to that claim. Petitioners introduced maps purporting to show that cigarette advertising is barred in 90.6% of Boston proper, 87.8% of Worcester, and 88.8% of Springfield. See App. 165-167. But the maps do not distinguish between the area restricted due to the regulation at issue here and the area restricted due to pre-existing regulations, such as general zoning requirements applicable to all outdoor advertising. Nor do the maps show the percentage (with respect to either area or population) of the State that is off limits to cigarette advertising; they cover only three cities *598 containing approximately 14% of the State’s population. See U. S. Census Bureau, Statistical Abstract of the United States 28,47,49 (1999) (providing population figures for 1998). The area in which cigarette advertising is restricted is likely to be considerably less in less densely populated portions of the State. And even on the interpretation of this data most favorable to petitioners, the Massachusetts regulation still permits indoor and outdoor cigarette advertising in at least 10% of the geographical area of the State. In short, the regulation here is not the equivalent of a total ban on cigarette advertising.]

[Footnote 7: Hence, while I agree in large part with the substance of the arguments proffered by the respondents and the United States on the pre-emption issue, I reject their conclusion that the. content/location distinction finds expression in the limiting phrase “based on smoking and health.” See Brief for Respondents 20; Brief for United States as Amicus Curiae 5; accord, Penn Advertising of Baltimore, Inc. v. Mayor and City Council of Baltimore, 63 F. 3d 1318 (CA4 1995). Instead, I would follow the First, Second, and Seventh Circuits in concluding that a statute regulating the location of advertising is not a “requirement or prohibition… with respect to… advertising” within the meaning of the 1969 Act. See Consolidated Cigar Corp. v. Reilly, 218 F. 3d 30, 39-41 (CA1 2000) (case below); Greater N. Y. Metropolitan Food Council, Inc. v. Giuliani, 195 F. 3d 100, 104-110 (CA2 1999); Federation of Advertising Industry Representatives, Inc. v. Chicago, 189 F. 3d 633, 636-640 (CA7 1999).]

[Footnote 8: The Court’s holding that federal law precludes States and localities from protecting children from dangerous products within 1,000 feet of a school is particularly ironic given the Court’s conclusion six years ago that *599 the Federal Government lacks the constitutional authority to impose a similarly motivated ban. See United States v. Lopez, 514 U. S. 549 (1995). Despite the absence of any identified federal interest in creating “an invisible federal zone extending 1,000 feet beyond the (often irregular) boundaries of the school property,” as the majority construes it today, the “statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise,” id., at 583 (Kennedy, J., concurring). I wonder why a Court sensitive to federalism concerns would adopt such a strange construction of statutory language whose quite different purpose Congress took pains to explain.]

II

On the First Amendment issues raised by petitioners, my disagreements with the majority are less significant. I would, however, reach different dispositions as to the 1,000-foot rule and the height restrictions for indoor advertising, and my evaluation of the sales practice restrictions differs from the Court’s.

The 1,000-Foot Rule

I am in complete accord with the Court’s analysis of the importance of the interests served by the advertising restrictions. As the Court lucidly explains, few interests are more “compelling,” anté, at 564, than ensuring that minors do not become addicted to a dangerous drug before they are able to make a mature and informed decision as to the health risks associated with that substance. Unlike other products sold for human consumption, tobacco products are addictive and ultimately lethal for many long-term users. When that interest is combined with the State’s concomitant concern for the effective enforcement of its laws regarding the sale of tobacco to minors, it becomes clear that Massachusetts’ regulations serve interests of the highest order and are, therefore, immune from any ends-based challenge, whatever level of scrutiny one chooses to employ.

Nevertheless, noble ends do not save a speech-restricting statute whose means are poorly tailored. Such statutes *600 may be invalid for two different reasons. First, the means chosen may be insufficiently related to the ends they purportedly serve. See, e. g., Rubin v. Coots Brewing Co., 514 U. S. 476 (1995) (striking a statute prohibiting beer labels from displaying alcohol content because the provision did not significantly forward the government’s interest in the health, safety, and welfare of its citizens). Alternatively, the statute may be so broadly drawn that, while effectively achieving its ends, it unduly restricts communications that are unrelated to its policy aims. See, e. g., United States v. Playboy Entertainment Group, Inc., 529 U. S. 803,812 (2000) (striking a statute intended to protect children from indecent television broadcasts, in part because it constituted “a significant restriction of communication between speakers and willing adult listeners”). The second difficulty is most frequently encountered when government adopts measures for the protection of children that impose substantial restrictions on the ability of adults to communicate with one another. See, e.g., Playboy Entertainment Group, Inc., supra; Reno v. American Civil Liberties Union, 521 U. S. 844 (1997); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989).

[Omitted: two paragraphs on why, in Justice Stevens’s view, the 1,000-foot rule is not a tailoring problem of the usual kind.]

*601 However, I share the majority’s concern as to whether the 1,000-foot rule unduly restricts the ability of cigarette manufacturers to convey lawful information to adult consumers. This, of course, is a question of line-drawing. While a ban on all communications about a given subject would be the most effective way to prevent children from exposure to such material, the State cannot by fiat reduce the level of discourse to that which is “fit for children.” Butler v. Michigan, 352 U. S. 380, 383 (1957); cf. Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 74 (1983) (“The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox”). On the other hand, efforts to protect children from exposure to harmful material will undoubtedly have some spillover effect on the free speech rights of adults. See, e. g., FCC v. Pacifica Foundation, 438 U. S. 726, 749-750, and n. 28 (1978).

[Omitted: three paragraphs on the qualitative and comparative information the record does not contain.]

*603 In granting summary judgment for the respondents, the District Judge treated the First Amendment issues in this suit as pure questions of law and stated that “there are no material facts in dispute concerning these issues,” 84 F. Supp. 2d 180, 183 (Mass. 2000). With due respect, I disagree. While the ultimate question before us is one of law, the answer to that question turns on complicated factual questions relating to the practical effects of the regulations. As the record does not reveal the answer to these disputed questions of fact, the court should have denied summary judgment to both parties and allowed the parties to present further evidence.

*604 The Sales Practice and Indoor Advertising Restrictions

[Omitted: a short passage introducing Justice Stevens’s treatment of the sales practice and indoor advertising restrictions.]

*604 First, I agree with the District Court and the Court of Appeals that the sales practice restrictions are best analyzed as regulating conduct, not speech. See 218 F. 3d, at 53. While the decision how to display one’s products no doubt serves a marginal communicative function, the same can be said of virtually any human activity performed with the hope or intention of evoking the interest of others. This Court has long recognized the need to differentiate between legislation that targets expression and legislation that targets conduct for legitimate non-speech-related reasons but imposes an incidental burden on expression. See, e. g., United States v. O’Brien, 391 U. S. 367 (1968). However difficult that line may be to draw, it seems clear to me that laws requiring that stores maintain items behind counters and prohibiting self-service displays fall squarely on the conduct side of the line. Restrictions as to the accessibility of dangerous or legally restricted products are a common feature of the regulatory regime governing American retail stores. I see nothing the least bit constitutionally problematic in requiring individuals to ask for the assistance of a salesclerk in order to examine or purchase a handgun, a bottle of penicillin, or a package of cigarettes.

Second, though I admit the question is closer, I would, for similar reasons, uphold the regulation limiting tobacco advertising in certain retail establishments to the space five feet or more above the floor. When viewed in isolation, this provision appears to target speech. Further, to the *605 extent that it does target speech it may well run into constitutional problems, as the connection between the ends the statute purports to serve and the means it has chosen are dubious. Nonetheless, I am ultimately persuaded that the provision is unobjectionable because it is little more than an adjunct to the other sales practice restrictions. As the Commonwealth of Massachusetts can properly legislate the placement of products and the nature of displays in its convenience stores, I would not draw a distinction between such restrictions and height restrictions on related product advertising. I would accord the Commonwealth some latitude in imposing restrictions that can have only the slightest impact on the ability of adults to purchase a poisonous product and may save some children from taking the first step on the road to addiction.

III

Because I strongly disagree with the Court’s conclusion on the pre-emption issue, I dissent from Parts II-A and II-B of its opinion. Though I agree with much of what the Court has to say about the First Amendment, I ultimately disagree with its disposition or its reasoning on each of the regulations before us.

Notes & Questions

1. Part II-C is unanimous, and it is the part you will use. Nine Justices agree that the FCLAA “still leaves significant power in the hands of States to impose generally applicable zoning regulations and to regulate conduct” (551); that neutral location and size rules “appear to be outside the ambit of the pre-emption provision” because they “are not ‘based on smoking and health’” (552); and that a State may ban sales to minors and punish solicitation, conspiracy and attempt. Note the hedge — “appear to be” — and ask what it is doing. Then draft the ordinance a Massachusetts town could enact after this case. How different is it in effect from the one struck down?

2. The phrase that both preempts and saves. Part II-B reads “based on smoking and health” broadly enough to cover a regulation “motivated by concerns about smoking and health” (548), and rejects the Attorney General’s attempt to separate youth-access concerns from health concerns because the two are “intertwined.” Part II-C then uses the same phrase to save neutral regulation. Is that one consistent reading or two? Formulate the test the two Parts together produce, in one sentence, and then apply it to a rule that bans all outdoor advertising of any product within 1,000 feet of a school.

3. What the Court did with Cipollone. Cipollone asked whether §1334(b) preempted state common-law claims about what cigarette makers said. This case carries the same provision from content to targeted location. The sentence that does most of the work, at 549 — a State may not “do through negative mandate (e. g., banning all cigarette advertising) that which it already was forbidden to do through positive mandate” — comes from Cipollone, 505 U. S., at 539, which is Justice Blackmun’s separate opinion, joined by two Justices and dissenting in part from the judgment. Justice Stevens’s answer, at 597, is that “[n]ary a word in any of the three Cipollone opinions supports” extending §5 to the location of signs. Who has the better of it — and what does it tell you that the majority’s pivot sentence comes from a three-Justice opinion?

4. The content/location distinction, and why it fails. The Court concedes it “has some surface appeal” (548) and rejects it on three grounds: the text reaches all “requirements” and “prohibitions”; Congress itself imposed a location-based restriction in the electronic-media ban, §1335; and the Attorney General conceded at argument that a blank-billboard rule would be preempted while a total ban would not. Take each in turn. Is the third an argument, or a debater’s point about a concession? And note Justice Stevens’s footnote 7: he rejects the “based on smoking and health” theory too, and would rest instead on “with respect to … advertising.” The majority and the principal dissent agree that the respondents’ own best argument fails.

5. The same page of the same Senate Report. The Court’s single footnote, at 552, and Justice Stevens at 596 both quote S. Rep. No. 91-566, p. 12 (1969) — the passage saying the provision “would in no way affect the power of any State … with respect to the taxation or the sale of cigarettes to minors … or similar police regulations.” The Court reads it to preserve conduct regulation. Justice Stevens reads it to preserve location regulation. Both readings are available on the face of the sentence. What does that tell you about legislative history as a tiebreaker in preemption cases? Compare Justice Scalia’s position in Crosby, 530 U. S., at 391, and the Court’s use of legislative history in Arizona, at 405.

6. Stevens’s structural argument, which the Court does not answer. When Congress broadened §1334(b) in 1969 it left §1331 — the statement of purposes, which names “diverse, nonuniform, and confusing cigarette labeling and advertising regulations” — entirely unchanged. Stevens, at 595: “The retention of this provision unchanged is strong evidence that Congress’ only intention in expanding the pre-emption clause was to capture forms of content regulation that had fallen through the cracks.” Find the Court’s response. Is there one?

7. Every Part commands five votes, and the five keep changing. Work out why Justices Scalia, Kennedy and Thomas would not join Part III-B-1 (which finds the State’s evidence adequate under Central Hudson’s third step), and why Justices Stevens, Ginsburg and Breyer would. Then ask what it means that the two halves of a single Central Hudson analysis — the evidentiary step and the tailoring step — were decided by different majorities. Is Part III-B-1 a holding?

8. The counterfactual. Suppose the FCLAA’s preemption clause had covered smokeless tobacco and cigars as well as cigarettes. What happens to this case? Nothing in the First Amendment analysis would have been written, and the 1,000-foot rule would have fallen for all three products on statutory grounds. Now suppose the reverse: the FCLAA covers nothing. Then Part III-B-2 does all the work, and the case becomes a commercial-speech decision. The same regulation is valid or invalid, and for entirely different reasons, depending on which products it reaches. Is that a defect in the statute, in the doctrine, or in neither?

9. Where this sits in the module. Lorillard is the module’s pure express-preemption case: no field, no obstacle, no impossibility, no Rice, and the presumption named only to be attributed to the court below. Set it beside Monsanto v. Durnell, where the Court again decides on express preemption alone and again never mentions the presumption. Is the trend from Hines through Wyeth toward implied preemption, and from Lorillard through Durnell away from it — or is “express preemption” simply where the interpretive discretion has relocated, into phrases like “with respect to,” “based on,” and “under”?