Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 29 (2001)

Page:   Index   Previous  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  Next

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

Opinion of the Court

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.,

553

Page:   Index   Previous  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  Next

Last modified: October 4, 2007