Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 25 (2001)

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Cite as: 533 U. S. 525 (2001)

Opinion of the Court

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,

549

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