218 F.3d 30 (1st Cir. 2000)
CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; SWEDISH MATCH NORTH AMERICA, INC.; Plaintiffs, Appellants,v.THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellee.LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; UNITED STATES TOBACCO COMPANY; Plaintiffs.UNITED STATES, Interested Party.LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION;R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; Plaintiffs, Appellants,v.THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellee.UNITED STATES TOBACCO COMPANY; CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; Plaintiffs.UNITED STATES, Interested Party.UNITED STATES TOBACCO COMPANY, Plaintiff, Appellant,v.THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellee.LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; Plaintiffs.UNITED STATES, Interested Party.LORILLARD TOBACCO COMPANY; PHILIP MORRIS, INC.; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; UNITED STATES TOBACCO COMPANY; CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; Plaintiffs, Appellees,v.THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellant.UNITED STATES, Interested Party.LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; UNITED STATES TOBACCO COMPANY; CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; Plaintiffs, Appellees,v.THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellant.UNITED STATES, Interested Party.LORILLARD TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; R.J. REYNOLDS TOBACCO COMPANY; PHILIP MORRIS, INC.; UNITED STATES TOBACCO COMPANY; CONSOLIDATED CIGAR CORPORATION; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWEDISH MATCH NORTH AMERICA, INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; PHILIP MORRIS, INC.; Plaintiffs, Appellees,v.THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellant.UNITED STATES, Interested Party.CONSOLIDATED CIGAR CORPORATION; GENERAL CIGAR CO., INC.; HAVATAMPA, INC.; JOHN MIDDLETON, INC.; L.J. PERETTI CO., INC.; SWISHER INTERNATIONAL, INC.; TOBACCO EXPORTERS INTERNATIONAL (USA) LTD.; SWEDISH MATCH NORTH AMERICA, INC.; LORILLARD TOBACCO COMPANY; PHILIP MORRIS, INC.; R.J. REYNOLDS TOBACCO COMPANY; BROWN & WILLIAMSON TOBACCO CORPORATION; UNITED STATES TOBACCO COMPANY; Plaintiffs, Appellees,v.THOMAS F. REILLY, ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Defendant, Appellant.UNITED STATES, Interested Party.
Nos. 00-1107, 00-1117, 00-1118 and 00-1270 to 00-1275
United States Court of Appeals For the First Circuit
Heard April 7, 2000Decided July 17, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
James V. Kearney, with whom Latham & Watkins, Peter G. Hermes, Peter C. Netburn and Hermes, Netburn, O'Connor & Spearing, P.C. were on brief, for appellants Consolidated Cigar Corp., General  Cigar Co., Inc., Havatampa, Inc., John Middleton, Inc., L.J.  Peretti Co., Inc., Swedish Match North America, Inc., Swisher  International, Inc. and Tobacco Exporters International (USA) Ltd.
Henry C. Dinger, P.C., with whom Cerise Lim-Epstein, Goodwin,  Procter & Hoar, LLP, Verne W. Vance, Jr., John H. Henn, Foley, Hoag  & Eliot, Andrew S. Krulwich, Thomas W. Kirby, Daniel E. Troy, William A. McGrath, Wiley Rein & Fielding, Richard M. Zielinski, Robert D. Ryan, Hill & Barlow, John B. Connarton, Jr. P.C., Carol-Lynn M. Bear, Connarton, Wood & Callahan. Clausen Ely, Patricia A.  Barald and Covington & Burling were on brief, for appellants Philip  Morris Incorporated, Brown & Williamson Tobacco Corporation,  Lorillard Tobacco Company and R.J. Reynolds Tobacco Co.
George J. Skelly, with whom Michael D. Blanchard, Eric S.  Sarner and Skadden, Arps, Slate, Meagher & Flom LLP were on brief,  for appellant United States Tobacco Company.
Steven G. Brody, Cadwalader, Wickersham & Taft and Gilbert H.  Weil on brief, for Association of National Advertisers, Inc.,  amicus curiae.
Daniel J. Popeo, Richard A. Samp and Washington Legal  Foundation on brief, for Washington Legal Foundation, amicus  curiae.
William W. Porter, CA, Assistant Attorney General, with whom Susan Paulson, CA, Assistant Attorney General, was on brief, for  appellee.
Douglas N. Letter, Appellate Litigation Counsel, Civil  Division, U.S. Department of Justice, with whom David W. Ogden,  Acting Assistant Attorney General, and Donald K. Stern, United  States Attorney, were on brief, for the United States, amicus  curiae.
Brian Wolfman, David C. Vladeck, Richard J. Whitney, Speir &  Whitney, George A. Hacker, Donald W. Garner, Michael L. Ile, Anne M. Murphy and Leonard A. Nelson on brief, for American Medical  Association, American Heart Association, American Lung Association,  American Cancer Society, Center for Science in the Public Interest,  Public Citizen, Inc. and the Massachusetts Medical Society, amici  curiae.
Before: Torruella, Chief Judge, Bownes, Senior Circuit Judge, and Lipez, Circuit Judge.
TORRUELLA, Chief Judge.


1
Before the Court is a challenge  to regulations promulgated by the Attorney General of Massachusetts  which restrict the sale, promotion, and labeling of tobacco  products in an effort to reduce the use of such products by minors. Three groups of tobacco companies1 have sued the Attorney General,  claiming that the Massachusetts regulations are partially preempted  by federal law, that the regulations violate their First Amendment  right to free speech, and that the regulations violate the Commerce  Clause of the Constitution.  After due consideration of the  arguments pressed by all parties and by amici curiae, and with full  appreciation of the importance of the public health issue  underlying this case, we conclude (1) that the regulations are not  preempted by federal law, (2) that the regulations do not violate  the First Amendment, and (3) that parts of the regulations  unconstitutionally burden interstate commerce.  Accordingly, we  affirm in part and reverse in part the decision of the district  court.

I.  Factual and Procedural Background

2
On January 22, 1999, the Attorney General of  Massachusetts promulgated regulations now codified at title 940,  sections 21.00 through 21.07 (cigarettes and smokeless tobacco) and  title 940, sections 22.00 through 22.09 (cigars) of the  Massachusetts Code of Regulations.  The regulations declare certain  types of conduct by manufacturers, distributors, and sellers of  tobacco products to be per se "unfair or deceptive acts or  practices" prohibited under chapter 93A, § 2(a) of the  Massachusetts General Laws.  For example, the regulations prohibit  a number of retail practices including promotional give-aways and  mail ordering without age verification, see 940 C.M.R. §§ 21.04(1),  22.06(1), as well as measures aimed specifically at outlet sales  practices, see id. §§ 21.04(2)-(3), 22.06(2)-(3).  Of particular  concern to the tobacco companies, the Massachusetts regulations  also prohibit the following advertising practices:


3
(a) Outdoor advertising, including advertising  in enclosed stadiums and advertising from  within a retail establishment that is directed  toward or visible from the 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;


4
(b) Point-of-sale advertising . . . any  portion of which is placed lower than five  feet from the floor of any retail  establishment accessible to persons younger  than 18 years old, which is located within a  1,000 foot radius of any public playground,  playground area in a public park, elementary  school or secondary school.


5
Id. §§ 21.04(5), 22.06(5).  A single exception to the advertising  ban permitted the display of a so-called "tombstone" sign stating  "Tobacco products sold here," see id. §§ 21.04(6), 22.06(6), but  this provision was struck down by the district court on preemption  grounds.2  Finally, the regulations also prescribe mandatory  warning statements to be included on all cigar labeling and  advertising.  See id. §§ 22.04, 22.05.


6
In response to the promulgation of the regulations, three  separate suits were filed in federal district court by the  appellants in this consolidated appeal, who are makers and sellers  of cigarettes, smokeless tobacco products, and cigars.  The  cigarette and smokeless tobacco companies claimed that the  Massachusetts regulations were preempted by the Federal Cigarette  Labeling and Advertising Act (FCLAA), codified as amended at 15  U.S.C. §§ 1331-41, and that the regulations violated their  commercial speech rights under the First Amendment.3  The cigar  companies also challenged the regulations on First Amendment  grounds, as well as claiming that the regulations imposed an undue  burden on interstate commerce in violation of the Commerce Clause. In an opinion issued December 2, 1999, the district court rejected  the preemption arguments of the cigarette and smokeless tobacco  producers.  See Lorillard Tobacco Co. v. Reilly, 76 F. Supp. 2d 124  (D. Mass. 1999) (Lorillard I).  In a January 24, 2000 opinion, the  district court likewise rejected the tobacco companies' First  Amendment claims, as well as the cigar makers' Commerce Clause  challenge.  See Lorillard Tobacco Co. v. Reilly, 84 F. Supp. 2d 180  (D. Mass. 2000) (Lorillard II).4  Judgment was entered on  January 25, 2000 in favor of the Attorney General, and this appeal  followed.


7
On appeal, the tobacco companies raise the following  issues: (1) whether the Massachusetts regulations are preempted by  federal law, (2) whether the regulations' advertising restrictions  violate the First Amendment, (3) whether certain restrictions  imposed on retail practices violate the First Amendment, (4) and whether the regulations' cigar warnings requirements violate the  First Amendment and the Commerce Clause.  The Attorney General  cross-appeals one issue -- whether the regulations' indoor  advertising restrictions violate the First Amendment.

II.  Law and Application
A.  Preemption
1.  Introduction

8
The Supreme Court has explained the analysis for  determining when a state regulation is preempted by a federal law  that contains specific preemption language.  In Medtronic, Inc. v. Lohr, 518 U.S. 470, 484-86 (1996), the Court stated that, to  identify the domain expressly preempted by the federal statute, two  presumptions about the nature of preemption must be considered. First, particularly when Congress has "'legislated . . . in a field  which the States have traditionally occupied,' we 'start with the  assumption that the historic police powers of the States were not  to be superseded by the Federal Act unless that was the clear and  manifest purpose of Congress.'"  Id. at 485.  Second, in  determining the scope of the federal preemption, the "ultimate  touchstone" is Congress's purpose as "discerned from the language  of the pre-emption statute and the 'statutory framework'  surrounding it."  Id. at 486.  In this respect, it is relevant to  consider the "'structure and purpose of the statute as a whole,' as  revealed not only in the text, but through the reviewing court's  reasoned understanding of the way in which Congress intended the  statute and its surrounding regulatory scheme to affect business,  consumers, and the law."  Id.


9
The tobacco companies argue, rather weakly we might say,  that the "presumption against preemption" should not be applied in  this case because the presumption "is not triggered when the State  regulates in an area where there has been a history of significant  federal presence."  United States v. Locke, 120 S. Ct. 1135, 1147  (2000).  However, as the Court noted in Locke, the area at issue  there -- maritime commerce -- is one in which "Congress has  legislated from the earliest days of the Republic, creating an  extensive federal statutory and regulatory scheme."  Id. at 1148. We have little difficulty distinguishing the historically pervasive  federal regulation of fields such as maritime commerce, see, e.g., Kelly v. Washington, 302 U.S. 1, 4 (1937) ("The federal acts and  regulations with respect to vessels on the navigable waters of the  United States are elaborate.  They were well described in the  argument of the Assistant Solicitor General as a maze of  regulation."), from Congress's relatively recent entry into the  regulation of the tobacco industry.  The thirty-five years that  have passed since passage of the FCLAA, with its limited scope when  compared to federal regulation of fields such as maritime commerce,  can hardly serve as a basis for supplanting the traditional state  authority in matters of public health, particularly that of minors. See Medtronic, 518 U.S. at 475 ("Throughout our history the several  States have exercised their police powers to protect the health and  safety of their citizens.  Because these are 'primarily, and  historically, . . . matters of local concern,' the 'States  traditionally have had great latitude under their police powers to  legislate as to the protection of the lives, limbs, health,  comfort, and quiet of all persons.'" (citations omitted)).  The  "presumption against preemption" applies with full force to this  case.


10
We turn, therefore, to our task of identifying "the  domain expressly preempted" by § 1334(b), id. at 484, keeping in  mind (1) the presumption that Congress does not intend to supplant  state regulation in the area of public health and the health of  minors without a clear and manifest indication of such preemptory  purpose, see id. at 485, and (2) that our decision must "rest  primarily on a 'fair understanding of congressional purpose,'" as  informed by the text,  the statutory framework, and the purpose of  the FCLAA as a whole, id. at 486.

2.  The Preemptive Scope of § 1334(b)

11
Section 1334(b) of the FCLAA states that "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(b).  To date, four  other federal courts of appeals have addressed the preemptive scope  of this provision.  See Lindsey v. Tacoma-Pierce County Health  Dep't, 195 F.3d 1065 (9th Cir. 1999); Greater New York Metro. Food  Council v. Giuliani, 195 F.3d 100 (2d Cir. 1999); Federation of  Advertising Indus. Representatives, Inc. v. City of Chicago, 189  F.3d 633 (7th Cir. 1999) ("FAIR"); Penn Advertising of Baltimore,  Inc. v. Mayor & City Council of Baltimore, 63 F.3d 1318 (4th Cir.  1995).  We find the Second and Seventh Circuits' decisions in Giuliani and FAIR to be particularly helpful.


12
In Giuliani, the United States Court of Appeals for the  Second Circuit focused on the ambiguity in the phrase "with respect  to" advertising and promotion.  See Giuliani, 195 F.3d at 105.  As  the court noted, a "hyper-literal" reading of that phrase would  preempt a range of state regulation which Congress surely did not  intend to affect.  Id.  For example, "it could divest states and  municipalities of authority to prevent tobacco advertisers from  posting their ads in public buildings even though smoking is  legally prohibited there.  Or . . . it could lead to the conclusion  that 'states [are] without power to prohibit a cigarette company  from handing out free cigarettes in an elementary school yard.'" Id. (citing FAIR, 189 F.3d at 633).


13
Given the ambiguity of the preemption provision, the  Second Circuit endeavored to discern Congress's intent in enacting  § 1334(b).  Relying on the FCLAA's statement of purpose at 15  U.S.C. § 1331, the court reached two conclusions regarding the  intended scope of § 1334(b):  first, that Congress sought to inform  the public of the health risks associated with smoking, and second,  that while so informing the public Congress also sought to protect  the national economy from the burdens that would result from a  multitude of "'diverse, nonuniform, and confusing' advertising  standards."  See Giuliani, 195 F.3d at 106.  The court logically  concluded that § 1334(b)'s preemption provision was intended to  further that congressional balance by preempting state regulations  that would frustrate federal law by creating a "'multiplicity of  conflicting regulations.'"  Id.


14
Applying this reading of § 1334(b) to a 1000-foot rule  essentially identical to that imposed by the Massachusetts  regulations, the court found that the regulation was not preempted  by the FCLAA because it "[did] not impose obligations 'with respect  to' advertising as that phrase is used in § 1334(b)."  Id. at 109. The court found that the 1000-foot restriction "do[es] not touch  upon Congress's 'comprehensive Federal program' to control  cigarette advertising information.  The restrictions do not, for  example, burden advertisers with a duty to warn.  Nor do they  impose content and format requirements on advertising information." Id.  Although the court did recognize that different states and  municipalities might impose differing regulations with regard to  the location of tobacco advertising, "[d]ivergent 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."  Id.


15
Finally, the court in Giuliani also emphasized that "the  presumption against preemption is particularly strong here, as  these provisions are the sort thought to lie within the heartland  of the states' historic powers."  Id. (citing Medtronic, 518 U.S.  at 485).  Both zoning regulations and regulations directed at the  safety and welfare of minors, the court said, "lie peculiarly  within the states' historic police powers."  Id. (citing Packer  Corp. v. Utah, 285 U.S. 105, 111 (1932) (zoning restrictions on  cigarette advertising), and Toy Mfrs. of America, Inc. v. Blumenthal, 986 F.2d 615, 620 (2d Cir. 1992)).  Far from the clear  and manifest intent required to preempt state regulation in such  areas, the court noted that the legislative history of § 1334(b)  suggests that Congress specifically intended to give such  traditional state laws "wide berth."  Id. at 10 (citing S. Rep. No.  91-566, reprinted in 1970 U.S.C.C.A.N. at 2663).  Based on the  foregoing, the Second Circuit held that the 1000-foot restriction  was not preempted by the FCLAA.


16
The United States Court of Appeals for the Seventh  Circuit used a similar analysis to find that § 1334(b) did not  preempt Chicago regulations restricting the advertising of  cigarettes and alcoholic beverages.  Relying largely on the Supreme  Court's decision in New York State Conference of Blue Cross & Blue  Shield Plans v. Travelers Insurance, 514 U.S. 645 (1995), in which  the court considered the similar preemption provision of the  Employee Retirement Income Security Act (ERISA), the Seventh  Circuit concluded that "[i]f the FCLAA language ('with respect to  advertising and promotion') were viewed with an 'uncritical  literalism,' the effect would be to 'read Congress's words of  limitation as mere sham, and to read the presumption against pre-emption out of the law whenever Congress speaks to the matter with  generality.'"  FAIR, 189 F.3d at 637 (quoting Travelers Ins., 514  U.S. at 656).


17
As in Giuliani, the FAIR court then turned to an  examination of the legislative history and overall scheme of the  FCLAA and § 1334(b) to discern the intended scope of the preemption  provision.  See id. (relying on Cipollone v. Liggett Group, Inc.,  505 U.S. 504 (1992), and Medtronic, 518 U.S. at 484-85).  After  examining the statement of purpose found in § 1331 and the  legislative history of § 1334(b), the court concluded:


18
We therefore must read the language of the  FCLAA preemption provision in light of  Congress's desire not only to ensure  uniformity of regulation with respect to  matters of labeling and advertising, but also  in light of the manifest congressional concern  in preserving for the states the remainder of  their traditional police powers.


19
FAIR, 189 F.3d at 638.  Noting that the placement and manner of  outdoor advertising is a matter of traditional local concern, the  court declined to imply preemption of a regulation of such local  interest and importance.  Id. at 639.  The court further concluded  that the restrictions posed no danger of interfering with the  FCLAA's advertising and labeling scheme, and held that they were  not preempted by § 1334(b).5


20
We are persuaded by the reasoning of our sister circuits  that Congress did not intend § 1334(b) to preempt the kind of  tobacco advertising restrictions imposed by the Massachusetts  regulations.  The regulations do not interfere with the cigarette  and smokeless tobacco labeling and advertising scheme established  by Congress, and to the extent that they may create differing  restrictions on the location of advertising in various states and  municipalities, such divergent restrictions are indistinguishable  from the existing zoning regulations in place throughout the  country.6  We do not consider such location restrictions to present  the kind of "diverse, nonuniform, and confusing" advertising  standards with which Congress was concerned when it enacted the  FCLAA.  See Giuliani, 195 F.3d at 106-07; see also 15 U.S.C.  § 1331.7  Thus, we hold that the Massachusetts regulations are not  preempted by the FCLAA.


21
B.  First Amendment Challenge to Advertising Restrictions


22
The next claim, urged by all three groups of tobacco  companies, is that the advertising restrictions imposed by the  Massachusetts regulations violate the companies' First Amendment  right to freedom of speech.  We find this contention unpersausive.

1.  Level of Review

23
The tobacco companies first argue that the advertising  and promotion restrictions at issue here should be subject to a  more searching review than the "intermediate" scrutiny  traditionally applied in commercial speech cases.  See generallyCentral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New  York, 447 U.S. 557, 561-66 (1980).  According to the companies, the  regulations target tobacco advertising because of its content and  therefore shouldbe subject to a more demanding First Amendment  analysis.  The Attorney General, in contrast, characterizes the  regulations as content-neutral and urges us to deferentially apply  the Central Hudson test for commercial speech restrictions.


24
First, we repeat our conclusion (reached in the  preemption analysis) that the regulations are content-based.  The  regulations apply only to advertising "the purpose or effect of  which is to promote the use or sale of the [tobacco] product."  940  C.M.R. §§ 21.03, 22.03 (defining "advertisement").  Advertising of  other products is not restricted by the regulations, nor is  tobacco-related speech that has a purpose or effect other than  promotion, such as public health campaigns.  Contrary to the  Attorney General's suggestion, this type of focus is plainly  content-based.


25
Such conclusion does not, however, require a greater  level of scrutiny than the standard Central Hudson analysis.  The  tobacco companies argue that the regulations amount to inherently  suspect "viewpoint discrimination" because they ban only speech  that invites the purchase of tobacco products.  However, the  Supreme Court has made clear that even regulations which single out  the promotional speech of a particular industry are analyzed under  the Central Hudson test.  See Greater New Orleans Broadcasting  Ass'n v. United States, 527 U.S. 173, 184 (1999) (applying Central  Hudson to regulations restricting advertisements for casino  gambling).


26
The tobacco companies nevertheless argue that our  decision in AIDS Action Committee v. MBTA, 42 F.3d 1, 11 (1st Cir.  1994), supports the application of a higher level of scrutiny.  In  that case, Boston's transportation authority refused to display  public service advertisements for the AIDS Action Committee on the  purported basis that the ads "describe[d] sexual content in a  patently offensive way," id. at 5, but agreed to carry ads with  similar or more explicit content by other speakers.  We held that  this disparity gave rise to an appearance that the suppression of  speech was based on the identity or perceived viewpoint of the  speaker, particularly because the transportation authority did not  even attempt to articulate a neutral justification for the  disparate treatment.  See id. at 11.  In contrast, the Attorney  General here has not distinguished among speakers by disparately  applying a facially neutral provision.  On their face, the  regulations restrict the promotion of tobacco products, regardless  of brand or manufacturer, and permit nonpromotional speech relating  to tobacco products by any speaker, tobacco manufacturers and  sellers included.  The companies make no allegation that the  Attorney General has disparately, much less discriminatorily,  applied these provisions.  Under these circumstances, we do not see  the danger of viewpoint discrimination that was present in AIDS  Action Committee,8 and we decline to impose a higher level of  review on such basis.


27
In declining to impose a more searching review than that  mandated by Central Hudson, we are aware of the recent rumblings  from members of the Supreme Court and others suggesting that the Central Hudson test may be in need of minor or major modification. See, e.g., Greater New Orleans Broad. Ass'n, 527 U.S. at 184  ("[C]ertain judges, scholars, and amici curiae have advocated  repudiation of the Central Hudson standard and implementation of a  more straightforward and stringent test for assessing the validity  of governmental restrictions on commercial speech."). Nevertheless, it is not our role to anticipate changes in well-established constitutional doctrines.  See Buzynski v. Oliver, 538  F.2d 6, 7 (1st Cir. 1976) ("Although there are circumstances in  which it is appropriate for a court of appeals to disregard the  teachings of earlier Supreme Court decisions, generally the Supreme  Court has the exclusive authority to overrule its decisions."  (citation omitted)).  We are therefore bound to apply the Central  Hudson test, as is, to this case.

2.  The Central Hudson Test

28
In Central Hudson Gas & Electric Corp. v. Public Service  Commission of New York, 447 U.S. 557, 566 (1980), the Supreme Court  summarized the four-part analysis used to determine the  constitutionality of governmental restrictions on commercial  speech:


29
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 [1]  concern lawful activity and not be misleading. Next, we ask [2] whether the asserted  governmental interest is substantial.  If both  inquiries yield positive answers, we must  determine [3] whether the regulation directly  advances the governmental interest asserted,  and [4] whether it is not more extensive than  is necessary to serve that interest.


30
Under this analysis, the government bears the burden of identifying  a substantial interest and justifying the challenged restriction. See Greater New Orleans Broad. Ass'n, 527 U.S. at 183.  Mindful  that the four prongs of the analysis are "to a certain extent,  interrelated," id., we will consider them seriatim.


31
a.  Nonmisleading Speech Concerning Lawful Activity


32
Although the Attorney General is unwilling to entirely  concede that the tobacco advertisements at issue here are truthful,  nonmisleading speech about a lawful activity, he was willing to  assume that much for the purposes of summary judgment.  We  therefore need not explore this prong of the analysis.


33
b.  Substantial Interest


34
The second prong of the Central Hudson test requires that  the state identify a substantial state interest underlying the  challenged regulations.  Several such interests have been  identified by the Attorney General.


35
The first state interest proffered by the Attorney  General is the Commonwealth's desire "to eliminate deception and  unfairness in the way [tobacco products] are marketed, sold and  distributed in Massachusetts."  940 C.M.R. §§ 21.01, 22.01. Leaving aside for now whether such interest is served by the  regulations, we have no doubt that it is a substantial state  interest.  Indeed, the state interest in protecting consumers from  false and misleading commercial information was the original  justification for a more permissive First Amendment analysis in the  commercial speech area.  See, e.g., Central Hudson, 447 U.S. at  563-64.


36
The next state interest identified by the Attorney  General is the Commonwealth's aim "to address the incidence of  [tobacco] use by children under legal age."  940 C.M.R. § 21.01; see also id. § 22.01.  This general state interest is subdivided in  the briefs into two distinct, but related, interests.  First, the  Attorney General asserts a state interest in ensuring compliance  with state law, which prohibits the sale of tobacco products to  minors, and we consider that interest substantial.  Second, the  Attorney General relies on the state's interest in protecting the  health of children from the negative effects associated with the  use and abuse of tobacco products, which is also substantial.


37
The tobacco companies argue that Massachusetts cannot  have a substantial interest in depriving consumers of truthful  information in a paternalistic effort to protect them by "keeping  them in the dark."  We certainly agree with this proposition  insofar as it relates to adult consumers, in which circumstance the  First Amendment mandates that the consumer, rather than the  government, judge the value of the information being communicated. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503-04 (1996).  However, the courts have consistently recognized that  the government may act more protectively where children are  concerned.  See Erzoznick v. City of Jacksonville, 422 U.S. 205,  212 (1975) ("It is well settled that a State or municipality can  adopt more stringent controls on communicative materials available  to youths than on those available to adults."); Anheuser-Busch,  Inc. v. Schmoke, 101 F.3d 325, 329-30 (4th Cir. 1996) (citing cases  in support of the proposition that "children deserve special  solicitude in the First Amendment balance because they lack the  ability to assess and analyze fully the information presented  through commercial media").  Where, as here, the state acts to  protect minors, its substantial interest is not vitiated by the  admittedly paternalistic nature of its regulation.


38
c. Whether the Regulations "Directly Advance" the  State's Interests


39
A great deal of the written and oral argument submitted  in this case has concerned the third prong of our Central Hudson analysis -- whether the Massachusetts regulations "directly  advance" the Commonwealth's interests.  After a careful review of  the record, we hold that the regulations satisfy this prong of our  inquiry.


40
The Supreme Court has recently emphasized that the  government's burden regarding this third prong of the Central  Hudson analysis


41
"is not satisfied by mere speculation or  conjecture; rather, a governmental body  seeking to sustain a restriction on commercial  speech must demonstrate that the harms it  recites are real and that its restriction will  in fact alleviate them to a material degree." Consequently, "the regulation may not be  sustained if it provides only ineffective or  remote support for the government's purpose."


42
Greater New Orleans Broad. Ass'n, 527 U.S. at 188 (quoting Edenfield v. Fane, 507 U.S. 761, 770-71 (1993), and Central Hudson,  447 U.S. at 564).  The companies and the Attorney General dispute  both whether the harms recited by the Commonwealth are real and  whether the regulations will alleviate them to a material degree. Although the two aspects of the inquiry are closely interrelated in  this case, we address them separately for the sake of convenience  and, hopefully, clarity.


43
i. Real Harms


44
Like so many contentious issues in the law, the dispute  over whether the harms cited by the Attorney General are "real" is  in part a dispute over the level of generality at which the inquiry  itself should be made.  The Attorney General, adopting a broader  perspective, urges that the record and common sense amply support  his contention that there is a problem with underage tobacco use,  in the United States generally and in Massachusetts in particular. The Attorney General further asserts that this problem of underage  tobacco use is substantially related to, and thus may be materially  alleviated by restrictions upon, advertising.  The tobacco  companies, on the other hand, urge a more narrow perspective.  They  argue that the Attorney General has failed to demonstrate a teen  cigarette smoking problem in Massachusetts, and that he certainly  has shown no problem with underage consumption of smokeless tobacco  or cigars.  Furthermore, the companies charge, to the extent that  there may be a problem with tobacco use by minors, the record does  not establish any connection between such underage use and the  types of indoor and outdoor advertising and promotion restricted by  the regulations.  The Attorney General's principal response to the  companies' emphasis on product-specific analysis, which response  was accepted in large part by the district court, is that the three  types of tobacco products subject to the regulations pose similar  health concerns and similar dangers in the way they are promoted,  and thus may and should be regulated pursuant to one common scheme.


45
First of all, we have some difficulty accepting the  Attorney General's suggestion that "what is good for cigarettes is  good for cigars," at least in the First Amendment context.  To  accept such a proposition could conceivably open the door to  unforeseen and unjustified speech regulation on the mere theory  that products are related or share ingredients.  On the other hand,  of course, the Attorney General need not offer separate  justifications for regulation of green and red M & M's, to give an  exaggerated example, and our commercial speech doctrine must allow  the legislative and executive branches to make reasonable economies  in their regulation of comparable products.  However, we need not  decide today whether, and under what circumstances, a "regulation  by association" scheme might be acceptable in the commercial speech  context, because we find that the Attorney General has offered  sufficient product-specific evidence regarding cigarettes,  smokeless tobacco, and cigars to demonstrate that the dangers posed  by underage use of each is a "real harm" and that the regulations  can be reasonably expected to alleviate those harms to a material  degree.


46
Before addressing the product-specific information  presented by the Attorney General, however, we do note that he is  not the first to recognize 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., 120 S. Ct. 1291, 1315 (2000).  After  conducting the most extensive rulemaking procedure in history, the  Food and Drug Administration promulgated regulations not unlike  those issued by the Attorney General.  See 61 Fed. Reg. 44619-45318.  Although the Supreme Court recently struck down the FDA  regulations because it found that the agency did not have authority  to regulate tobacco products, the Court explicitly emphasized "the  seriousness of the problem that the FDA has sought to address" and  stated that the agency had "amply demonstrated" its significance. Brown & Willamson, 120 S. Ct. at 1315.  At this level of  generality, we feel that the risk of harm posed by tobacco use, and  particularly by underage tobacco use in this country, is  established beyond reasonable dispute.  Again, we need not decide  whether this alone satisfies the "real harm" aspect of the  "directly advances" prong, however, because the Attorney General  has provided us with additional information to support his view  that underage use of cigarettes, smokeless tobacco products, and  cigars poses a real danger to the Commonwealth of Massachusetts.


47
i(A).  Cigarettes


48
The Attorney General's case is strongest against  cigarettes, which have become emblematic of the health risks  associated with tobacco use in this country.  In his summary  judgment papers and in his submissions to this Court, the Attorney  General refers at length to precisely the kinds of studies and  summaries of statistical and anecdotal evidence accepted by the  Supreme Court to justify commercial speech restrictions.  SeeFlorida Bar v. Went For It, Inc., 515 U.S. 618, 626-28 (1995)  ("[W]e have permitted litigants to justify speech restrictions by  reference to studies and anecdotes pertaining to different locales  altogether, or even, in a case applying strict scrutiny, to justify  restrictions based solely on history, consensus, and 'simple common  sense.'" (citations omitted)); Affidavit of Michael G. Hering and  exhibits thereto, Joint Appendix at 1184-3087.  These submissions  are replete with evidence that smoking, particularly by minors,  poses a significant risk to the public health and is a widespread  practice.  See, e.g., U.S. Dep't of Health & Human Servs., Preventing Tobacco Use Among Young People: A Report of the Surgeon  General (1994), Joint Appendix at 1203, 1223 ("Cigarette smoking  during childhood and adolescence produces significant health  problems among young people, including cough and phlegm production,  an increased number and severity of respiratory illnesses,  decreased physical fitness, and unfavorable lipid profile, and  potential retardation in the rate of lung growth and the level of  maximum lung function."); Massachusetts Dep't of Pub. Health, Adolescent Tobacco Use in Massachusetts: Trends Among Public  Schools Students 1984-1996 (1997), Joint Appendix at 2272, 2281. As such, they are more than sufficient to demonstrate that the harm  cited by the Attorney General is a real one.


49
i(B).  Smokeless Tobacco


50
The makers of smokeless tobacco products present two  principal arguments for why, even assuming that Massachusetts could  justify its regulation of cigarettes, the use of smokeless tobacco  products does not present a comparable problem.  First, the  smokeless tobacco producers argue that the vast majority of the  information relied upon by the Attorney General to justify the  regulations concerns cigarettes specifically and not smokeless  tobacco.  Second, they point to studies indicating that, whatever  national trends may exist, smokeless tobacco consumption by minors  has actually decreased in Massachusetts during recent years.  We  address these arguments in turn.


51
The smokeless tobacco producers are correct that the  Attorney General has been able to garner more information on the  use and negative effects of cigarettes than of other tobacco  products.  However, the Attorney General does point to various  sources specific to smokeless tobacco, including the relevant parts  of the FDA regulations struck down but factually accepted by the  Supreme Court in Brown & Williamson, as well as independent  published studies.  See, e.g., Choi et al., Does advertising  promote smokeless tobacco use among adolescent boys?  Evidence from  California, Joint Appendix at 2516.  Furthermore, the state's brief  sets forth substantial anecdotal evidence detailing the highly  successful marketing of smokeless tobacco to young consumers  beginning in the late 1960s and early 1970s.  Of course, the  companies object that this data is dated and that it does not  specifically evaluate the impact of outdoor advertising such as  that principally targeted by the Massachusetts regulations, but we  think that such objections demand more than Central Hudson requires.  The Attorney General has adequately demonstrated that  smokeless tobacco consumption by underage users poses a real  danger.


52
The companies' second point is that the Massachusetts  Department of Health study upon which the Attorney General largely  relies actually shows a sharp decline in the use of smokeless  tobacco by young people in Massachusetts between 1993 and 1996, in  which time such use fell from 8.0 percent to 4.5 percent.  See Mass. Dep't of Pub. Health, Independent Evaluation of the  Massachusetts Tobacco Control Program, Joint Appendix at 3752. Although we understand the companies' frustration at increased  regulation while current efforts seem to be bearing fruit, we do  not think that partial successes in fighting underage smokeless  tobacco use robs the Commonwealth of its authority to remedy what  remains of the problem.  Even according to the study emphasized by  the smokeless tobacco makers, a not-insignificant number of minors  continues to use smokeless tobacco products in Massachusetts, and  nothing submitted by the companies contradicts the Attorney  General's evidence that this remaining use poses a significant  health risk to those users, now and as they age.  We therefore  conclude that the Attorney General has satisfied this aspect of his  burden with regard to smokeless tobacco products.


53
i(C).  Cigars


54
The cigar makers largely echo the first argument pressed  by the smokeless tobacco makers above -- that the Attorney General  impermissibly relies on studies and anecdotal evidence concerning  cigarette smoking to justify regulation of cigars.  Again, we find  that the state has presented sufficient evidence to support its  conclusion that underage cigar smoking constitutes a real harm.


55
The Attorney General relies heavily on a monograph  published by the National Cancer Institute in 1998.  See National  Cancer Inst., Monograph 9, Cigars: Effects and Trends (1998), Joint  Appendix at 2572.  As that study sets forth in more detail, cigar  smoking presents a serious risk of disease, comparable in type and  severity to that attributed to cigarette smoking.  See id. at 2588. The study also concludes that the "data on cigar use among  adolescents is also alarming," referring specifically to  Massachusetts for evidence of "a substantial level of cigar use,  even prior to high school."  Id. at 2598.  We think that this  evidence weighs very heavily in the Attorney General's favor.9


56
The Attorney General also relies on anecdotal evidence of  the successful advertising campaign waged by smokeless tobacco in  the 1960s and 1970s (mentioned above) and a similar successful  campaign by cigarette manufacturers in the 1940s and 1950s.  He  argues that these advertising campaigns have demonstrated a  willingness and an effectiveness on the part of tobacco producers  in the use of "image-related" advertisements to stimulate tobacco  markets, and that minors are particularly susceptible to this type  of advertising.  The companies argue that this anecdotal evidence  is dated and cannot establish a link between youth cigar smoking  and advertising, particularly not the kind of advertising at issue  here.  Once again, we think that the standard urged by the tobacco  companies demands more than is required by Central Hudson and its  progeny.  The Attorney General has sufficiently demonstrated that  cigar use among minors poses a real danger in Massachusetts.


57
ii. Whether the Restrictions Will Alleviate the  Cited Harms to a Material Degree


58
The second aspect of the third prong of the Central  Hudson analysis is also hotly disputed by the parties.  The tobacco  companies argue that the Attorney General has failed entirely to  demonstrate that advertising causes underage smoking or that  advertising restrictions of the type at issue here will have any  effect on underage tobacco use, much less result in a material  reduction.  The companies pointedly attack the studies submitted by  the Attorney General and assert that several of those very studies  decline to assert a cause-effect relationship between advertising  and smoking.  The Attorney General responds with a common sense  argument on the causal relationship between advertising and product  use, supported by a number of studies and anecdotal evidence  demonstrating at least a correlation between advertising and  tobacco use in general and among children in particular.  We think  that the Attorney General has carried his burden.


59
The "common sense" argument asserted by the Attorney  General -- that advertising has some cause-effect relationship with  consumption -- is not a novel one.  Indeed, the Supreme Court  recognized in Central Hudson itself that "[t]here is an immediate  connection between advertising and demand."  447 U.S. at 569.  More  recently, in Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995),  the Court found it "assuredly a matter of 'common sense' that a  restriction on advertising of a product characteristic will  decrease the extent to which consumers select a product on the  basis of that trait."  But see Greater New Orleans Broad. Ass'n,  527 U.S. at 189 ("While it is no doubt fair to assume that more  advertising would have some impact on overall demand for gambling,  it is also reasonable to assume that much of that advertising would  merely channel gamblers to one casino rather than another."). After all, the five leading cigarette manufacturers spent  approximately $5.66 billion on advertising and promotion in 1997,  and nearly $300 million on outdoor advertising alone.  See Federal  Trade Comm'n, Report to Congress for 1997, Joint Appendix at 2544. It would defy common sense to conclude that for-profit corporations  which have demonstrated their ability to survive and flourish in  the market would pour such tremendous resources into advertising  without at least some calculation that their efforts would have a  substantial effect on consumption of their product.  As a general  proposition, we think that common sense does support the Attorney  General's position.


60
The Attorney General, however, does not rest on common  sense arguments alone.  He cites myriad sources to support his  proposition that tobacco advertising and tobacco use are causally  related, including notably a Surgeon's General's report concluding  that "cigarette advertising appears to increase young people's risk  of smoking," see U.S. Dep't of Health & Human Servs., Preventing  Tobacco Use Among Young People: A Report of the Surgeon General (1994), Joint Appendix at 1203, and the FDA's extensive  investigation and finding that "advertising plays a material role  in the decision by those under 18 to use tobacco products," see 60  Fed Reg. 44466 (1996), Joint Appendix at 1513.  Nearly two thousand  pages of the joint appendix in this case consist of reports and  surveys by governmental, scientific, and academic entities  submitted by the Attorney General in support of his dual  proposition that tobacco use by minors poses a real risk and that  tobacco advertising contributed materially to this problem.10 Although we decline to summarize that material here, we have no  difficulty concluding that it is sufficient to satisfy the Attorney  General's burden of demonstrating that the restrictions will  alleviate the harm caused by underage smoking to a material degree.


61
The smokeless tobacco and cigar manufacturers also repeat  the argument that the majority of the materials submitted by the  Attorney General concern primarily or exclusively cigarettes, and  that such materials cannot justify restrictions on smokeless  tobacco and cigar advertisements.  We agree that the cigarette  regulations are the supported most abundantly, in terms of the  sheer size of record submitted by the Attorney General.  That,  however, is not determinative.  The product-specific information  submitted by the Attorney General, taken in conjunction with the  other statistical and anecdotal information presented, is  sufficient to carry his burden.  See Florida Bar, 515 U.S. at 626-28.


62
Finally, the cigar manufacturers argue that the  Massachusetts regulations cannot reasonably be expected to reduce  cigar consumption in Massachusetts, because the advertising of  cigars is nearly nonexistent in comparison with the pervasive  promotion of cigarettes.  For instance, the cigar makers do not use  any billboards in Massachusetts, and they spent only $50,500 on  outdoor advertising in the entire United States during 1997,  compared to the nearly $300 million spent by the leading cigarette  manufacturers in that year.  While this argument is a forceful one,  it fails to persuade us that the regulations are unjustified. Although the regulations will necessarily have a small impact on  the amount of existing advertising (because relatively little  exists), they will remove any outdoor advertising that does  currently fall within 1000 feet of a school or playground, thus  protecting those particular children.  As the Attorney General has  demonstrated, children exposed to tobacco advertising near their  schools and play areas are likely to be affected by its message. Although fewer children will be affected by cigar advertising,  simply because there is much less of it, the relative lack of  current cigar advertising also means that the burden imposed on  cigar advertisers is correspondingly small.  We cannot conclude  that, under these particular circumstances, the First Amendment  bars the Attorney General from regulating cigar advertising of the  type targeted here, especially when we consider that he has done so  as part of a rational and well-founded comprehensive tobacco  regulatory scheme.


63
In sum, we conclude that the Attorney General has carried  his burden of demonstrating that the regulations will "directly  advance" his goals of reducing both underage tobacco use and  tobacco sales to minors.11  Less advertising may reasonably be  expected to reduce the consumption of tobacco products by current  users, insofar as there will be fewer reminders to stop at the  store to pick up a pack of cigarettes, a can of smokeless tobacco,  or a cigar (at least on the way to and from schools and  playgrounds, where Massachusetts has focused its efforts). Moreover, the restrictions on advertising should reduce the number  of new or future users by reducing the visibility of tobacco  products to minors, by dispelling the advertising-encouraged notion  that tobacco products are pervasive and form part of the "good  life," and by eliminating the psychological incentives to tobacco  use presented by things as simple as attractive ad color and design  (aspects of advertising which we agree may reasonably be assumed to  have greater effect on young people).  Because the Attorney General  has submitted sufficient data to demonstrate the harms posed by  underage tobacco use and to support his view that the regulations  will diminish underage tobacco consumption in both of these ways,  we conclude that he has satisfied his burden under prong three of  the Central Hudson analysis.


64
d. The Regulations Do Not Restrict More Speech than  Necessary


65
The fourth and final prong of the Central Hudson analysis  requires that the government not restrict more speech than  necessary to achieve its purposes.  In Board of Trustees of the  State University of New York v. Fox, 492 U.S. 469, 477 (1989), the  Supreme Court explained that this is not a "least restrictive  means" standard.  Summarizing its holding, the Court stated:


66
What our decisions require is a "'fit' between  the legislature's ends and the means chosen to  accomplish those ends"--a fit that is not  necessarily perfect, but reasonable; that  represents not necessarily the single best  disposition but one whose scope is "in  proportion to the interest served;" that  employs not necessarily the least restrictive  means but . . . a means narrowly tailored to  achieve the desired objective.  Within those  bounds we leave it to governmental  decisionmakers to judge what manner of  regulation may best be employed.


67
Id. at 480.  We hold that the Massachusetts advertising regulations  satisfy this requirement.


68
The companies' first argument that the Massachusetts  regulations are not sufficiently tailored to satisfy the First  Amendment is that, although the regulations facially apply only to  areas within 1000 feet of a school or playground, the actual effect  of the regulations is to prohibit virtually all advertising in as  much as ninety percent of the land area of Massachusetts' three  largest metropolitan areas, Boston, Worcester, and Springfield. Although this is certainly a valid point (even the Attorney General  concedes that the reach of the regulations is substantial), it does  not vitiate the tailoring of the speech restrictions in this case. While the amount of land within 1000 feet of a school or playground  may be substantial, its sheer size cannot defeat the obvious  connection to the state's interest in protecting minors, which is  served directly by limiting application of the regulations to areas  near schools and playgrounds -- areas where children are more  likely to be.  We also find no indication that the Attorney General  adopted the 1000-foot rule as a proxy or pretext for a more general  ban on tobacco advertising, in the Commonwealth's largest  metropolitan areas or elsewhere in the state.  Under the  circumstances, we do not think that the substantial geographical  reach of the regulations violates the First Amendment.


69
The companies also challenge the 1000-foot rule itself,  arguing that it is both arbitrary and overly extensive.  However,  the Supreme Court in Fox explicitly noted "the difficulty of  establishing with precision the point at which restrictions become  more extensive than their objective requires, and provide[d] the  Legislative and Executive Branches needed leeway" in fashioning  effective but proportionate commercial speech regulations.  SeeFox, 492 U.S. at 480.  The Attorney General based his 1000-foot  determination primarily on the FDA's implementation of a comparable  rule in its 1996 regulations, which, as noted, followed an  extensive rulemaking procedure.  Such reliance on the conclusions  of a lengthy federal investigation should hardly be called  arbitrary.  Furthermore, it is worth noting that the industry has  voluntarily refrained from billboard advertising within 500 feet of  schools since 1990, which suggests that they recognize the value of  such restrictions in principle.  The contention that 500 feet is  acceptable but that 1000 feet is somehow arbitrary strikes us as  splitting hairs, particularly because this type of determination is  generally better suited for legislative and executive  decisionmakers than for the courts; in any event, it is a greater  judicial second-guessing than is appropriate under the Central  Hudson analysis for commercial speech restrictions.  In the end,  one thousand  feet -- a mere three city blocks -- does not strike  us as an unreasonable distance in which to assume that minors  present at or on their way to or from schools and playgrounds would  be most affected by outdoor advertising.  Whether or not it is a  perfect "fit," it is a reasonable one, and that is what is required  by Central Hudson and Fox.


70
Oddly enough, the district court struck down the 1000-foot boundary in the context of indoor advertising, concluding that  the Attorney General had offered no basis for it other than the FDA  regulations, which themselves did not restrict indoor ads.  The  Attorney General has appealed this aspect of the district court's  decision, and we reverse, largely for reasons mentioned in the  previous paragraph.  It is hardly unreasonable for the Attorney  General to determine that stores within 1000 feet of schools and  playgrounds -- that area where children are most likely to be  present -- will also be more likely to receive minors as customers. In fact, we do not doubt that the companies would have challenged  the rationality of the Attorney General's regulatory scheme if it  did not include restrictions on advertisements at the point of  sale.  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 determination falls within that  range of reasonableness in which the Attorney General is best  suited to pass judgment.  In any event, the burden on speech  imposed by the provision is very limited (there are no restrictions  whatsoever on advertising above the five-foot level, so long as it  is not visible from the street), and we find the compromise to be  narrowly tailored and a reasonable "fit."  Fox, 492 U. S. at 480.


71
The tobacco companies' next argument is that the Attorney  General may not regulate commercial speech when there exist several  reasonable alternatives that would restrict no or less speech.  In  particular, the companies argue that Massachusetts should be  required to more stringently enforce current laws prohibiting  tobacco sales to minors, and perhaps make tobacco use itself  illegal for minors, before restricting tobacco advertising and  promotion.  We are not persuaded by this line of argument in this  case.  First, Massachusetts has not chosen speech restrictions as  its first or only punch in its fight against underage tobacco use. To the contrary, the Commonwealth is widely considered a leader in  many aspects of tobacco regulation.  See, e.g., Center for Disease  Control, Best Practices for Comprehensive Tobacco Control Programs (Aug. 1999), Joint Appendix at 684 (referring throughout to  Massachusetts as a leader in tobacco control).  Although the  companies question this characterization, they offer no evidence to  the contrary, nor do they offer any persuasive evidence that the  state is neglecting to conscientiously and vigorously enforce its  current laws.  Second, in light of Fox, we do not think that  Massachusetts should be required to criminalize underage tobacco  use before it can regulate tobacco advertising around its schools  and playgrounds.  There are legitimate reasons why the state may  not want to make underage tobacco use a crime; after all, the  state's motivation is to protect children, not to institutionalize  them.  Third, the principal function of advertising is to propose  a commercial transaction, in this case the sale of tobacco products  -- which, where minors are concerned, is already illegal in  Massachusetts.  And finally, while criminalization of underage  tobacco use or possession (or stricter enforcement of existing  laws, for that matter) might reduce the amount of current tobacco  use, it is unlikely to serve the government's interest in reducing  the demand for tobacco products among young people.  The  advertising regulations, in contrast, can reasonably be expected to  reduce demand.  For all of these reasons, we conclude that  Massachusetts need not exhaust yet more alternatives in its ongoing  efforts to curb underage tobacco use before restricting commercial  speech in the targeted way that it does with the regulations.


72
The next area of dispute between the parties concerns the  alternative modes of communication left open to tobacco  manufacturers and retailers.  The Attorney General emphasizes that  the regulations do not restrict advertising and promotion in print  media, such as newspapers and magazines.  The tobacco companies, in  response, note that tobacco advertising is already prohibited from  television and radio.12  They also point out that, while newspaper  and magazine advertising may be a viable alternative for major  manufacturers and some large retailers (as evidenced in part by the  prevalence of cigarette and cigar ads in magazines), such media are  cost-prohibitive for many vendors of tobacco products such as small  groceries and convenience stores.  These smaller vendors of tobacco  products, the companies argue, are left without any reasonable  alternative means for communicating with the public.


73
Although we find this argument quite a strong one, it  does not require invalidation of the regulations because it does  not vitiate the narrow tailoring of the restrictions on speech. After all, only businesses within 1000 feet of a school or  playground -- the area reasonably determined by the Attorney  General to present the greatest exposure to minors -- will be  affected by the regulations.  And even within those areas, the  regulations as written explicitly permitted retailers to display  so-called "tombstone" signs.  See 940 C.M.R. § 21.04(6).  These  signs would have allowed retailers to communicate to legitimate  consumers the availability of tobacco products, albeit less  forcefully than larger, more colorful advertising.  Unfortunately  (for tobacco sellers), the district court found this aspect of the  regulations preempted by the FCLAA, and the Commonwealth has not  appealed that ruling.  We nevertheless are of the view that this  compromise established by the regulations, as written, is  indicative of the kind of "calculation" by the Attorney General  that the First Amendment requires of government when it seeks to  restrict commercial speech.  See Fox, 492 U.S. at 480.  And,  although the striking of the tombstone exception measurably  increases the burden on tobacco sellers (or rather removes an  alleviating factor),13 we cannot conclude that this vitiates the  reasonable fit otherwise established by the regulations.


74
Finally, the tobacco companies suggest that the  regulations are not sufficiently tailored because they deny  communication to a large number of adults for the sake of  protecting children.  However, the cases referred to by the  companies, such as United States v. Playboy Entertainment Group,  Inc., 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000), Reno v. ACLU, 521 U.S. 844 (1997), and Erznoznik v. City of Jacksonville,  422 U.S. 205 (1975), do not support their position.  First, each of  those cases dealt with expressive speech, rather than commercial  speech, and therefore applied a "strict scrutiny" standard to  invalidate the laws, rather than the intermediate scrutiny  applicable to commercial speech cases.  Furthermore, even in that  context, the Court held that "the objective of sheltering children  does not suffice to support a blanket ban if the protection can be  accomplished by a less restrictive alternative."  Playboy  Entertainment Group, 120 S.Ct. at 1886-87 (emphasis added); see  also Reno, 521 U.S. at 874 ("[The law's] burden on adult speech is  unacceptable if less restrictive alternatives would be at least as  effective in achieving the legitimate purpose that the statute was  enacted to serve.").  Here, although the geographical scope of the  advertising restrictions is substantial, we do not find the  restrictions equivalent to a "blanket ban" on speech.  Furthermore,  it is difficult to imagine how Massachusetts might effectively  shield children from tobacco advertising near schools and  playgrounds without incidentally burdening adult communication in  that area as it does.  The regulations themselves address this  problem by providing an exception for indoor advertising in any  establishment that excludes minors, see C.M.R. § 21.04(5)(b), as  well by the very fact that the advertising restrictions are focused  on areas where children are most likely to be present. Consequently, we think that the burden imposed on adult commercial  communication within the 1000-foot perimeter is not so great as to  render the regulations invalid under Central Hudson.

3.  Conclusion

75
In conclusion, we hold that the advertising restrictions  imposed by the Massachusetts regulations do not violate the First  Amendment.  The regulations directly advance the substantial  interests identified by the Attorney General, and their  restrictions on commercial speech are proportionate to the state's  purposes.  As the Supreme Court has stated, "[w]ithin those bounds  we leave it to governmental decisionmakers to judge what manner of  regulation may best be employed."  Fox, 492 U.S. at 480.


76
C. First Amendment Challenge to Restrictions on Retail  Practices


77
The manufacturers of smokeless tobacco and cigars also  challenge the restrictions imposed by the Massachusetts regulations  on the use of "self-service" displays as a retail outlet practice. See 940 C.M.R. § 22.06.  The district court held that this practice  is not protected by the First Amendment because it does not  constitute speech.  Although the issue is by no means an easy one,  we agree and affirm.


78
On appeal, the tobacco companies argue that self-service  displays are "a specialized mode of speech" that communicates  information to the consumer and proposes a commercial transaction  in much the same way as does advertising.  Although we accept the  tobacco companies' proposition that self-service displays often do  have some communicative commercial function (covered as they often  are in logos and other advertising mechanisms), the actual  restriction imposed by the regulations is not on speech, but rather  on the physical location of actual tobacco products.  A familiar  analogy illustrates this point.  If sellers are so inclined, we see  nothing in the regulations prohibiting them from displaying empty  tobacco product containers in display cases, so long as no actual  tobacco product is so displayed.  In that circumstance, just like  at the local video store, the consumer can peruse the relevant  commercial information at his or her leisure before approaching the  sales counter to make an actual purchase.  For the vast majority of  tobacco products, nearly all of which are distributed in sealed  packaging which the consumer may not open and inspect before  purchase, we think that this type of regulation poses no cognizable  burden on speech, and any secondary imposition is surely so narrow  as to be justified by the significant interests served by the  regulations.


79
We do recognize that the sale of higher-end cigars poses  a somewhat different circumstance.  According to the cigar  manufacturers, cigar retailers traditionally allow consumers pre-purchase access to cigars so that the consumer may make his or her  selection on the basis of a number of objective and subjective  factors including the aroma and feel of the cigar.  Unlike the  distribution of packaged cigars and little cigars, this specialized  retail practice would in fact be burdened by prohibitions on self-service displays, and would implicate Central Hudson scrutiny if  the First Amendment applies to such a retail practice.


80
However, we need not decide whether this particular form  of self-service retail practice constitutes commercial speech  protected by the First Amendment, because the regulations pass  muster under Central Hudson even assuming arguendo that the  commercial speech analysis applies.  For the reasons set forth at  length above, we conclude that the Attorney General has adequately  demonstrated the substantial nature of the state's interests, as  well as the general proposition that restrictions on advertising  and promotion may reasonably be expected to directly advance those  interests.  It is apparent that limiting self-service displays and  placing tobacco products behind the sales counter will aid in the  Commonwealth's efforts to curb the sale of tobacco products to  underage consumers and directly advance the state's goals. Finally, the regulations are more than sufficiently tailored to the  goals of the regulation, not only because they leave open retail  schemes such as those used by video stores, but also because the  prohibition on self-service displays does not apply to "[s]elf-service displays that are located within adult-only retail  facilities."  940 C.M.R. § 22.06(3)(c).  A tobacco specialty store  can therefore avoid any burden presented by the regulation by  simply closing the store to children, who cannot lawfully purchase  tobacco products in any event.  We find the fit between ends and  means to be very reasonable, and we therefore conclude that the  restrictions on self-service displays are constitutional.


81
D.  Challenges to the Cigar Warnings Requirements


82
In addition to their challenges to the restrictions on  advertising, promotion, and self-service displays, the cigar  companies also challenge the warning scheme created by the  Massachusetts regulations.  Under that scheme, all packages and  advertising of cigars must include a warning stating (1) that cigar  smoke contains carbon monoxide and nicotine or (2) that cigars are  not a safe alterative to cigarettes.  See 940 C.M.R. §§ 22.04-22.05.  The warnings must occupy twenty-five percent of the front  or top panel of the package (whichever is larger) and twenty  percent of any advertisement, see id. §§ 22.04(2), 22.05(2),  although that area may be used for any federal, state, or local  warning so long as the Massachusetts warning remains clear and  conspicuous, see id. § 22.04(2)(c).  The use of a pre-printed  sticker affixed to the package or advertisement constitutes  compliance.  See id. § 22.04(2)(b).

1.  First Amendment Claim

83
The cigar companies' first argument posits that the  warnings requirements violate the First Amendment.  The district  court rejected this argument, and we affirm for substantially the  reasons set forth in the lower court's opinion.  See Lorillard II,  84 F. Supp. 2d at 197-98.


84
At the outset, we note that warnings schemes similar to  that imposed by the Massachusetts regulations have been repeatedly  sustained by the courts.  See, e.g., Zauderer v. Office of  Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626,  650-53 (1985).  Furthermore, the cigar warnings were specifically  designed to "fill the gap" in federal law, which requires similar  warnings for cigarettes and smokeless tobacco products but not for  cigars; this federal scheme has been in place since 1965 and its  validity is well established.


85
As the Supreme Court made clear in Zauderer, there are  "material differences between disclosure requirements and outright  prohibitions on speech," 471 U.S. at 650, such that "the First  Amendment interests implicated by disclosure requirements are  substantially weaker than those at stake when speech is actually  suppressed," id. at 651 n.14.  Therefore, although the commercial  speech analysis applies, the Supreme Court has held that "an  advertiser's rights are adequately protected as long as disclosure  requirements are reasonably related to the State's interest in  preventing deception of consumers."  Id. at 651.


86
On appeal, the cigar companies do not challenge the  substantiality of the state's interest in informing consumers of  the health risks associated with cigar smoking.  Nor do they  dispute that the regulations are reasonably related to that  interest.  Rather, the companies assert that the regulations are  nevertheless unconstitutional because the very size of the required  warnings (twenty-five percent of the main panel of packaging or  twenty percent of advertising) "unduly burdens" speech.  Cf. id. at  651 ("We recognize that unjustified or unduly burdensome disclosure  requirements might offend the First Amendment by chilling protected  commercial speech.").


87
With respect to the packaging requirements, the companies  argue that the warnings are unconstitutional because the Attorney  General failed to prove that the Commonwealth's purposes could not  be equally well served by warnings covering only, for example, ten  percent of the front of top panel of the package.  This argument,  however, was explicitly rejected by the Supreme Court in Zauderer,  where the Court declined to apply a "'least restrictive means'  analysis" to disclosure requirements and stated: "[W]e do not think  it appropriate to strike down such requirements merely because  other possible means by which the State might achieve its purposes  can be hypothesized."  Id. at 651 n.14.  Because the packaging  requirements are reasonably related to a substantial state interest  and do not unduly burden interstate commerce, they are valid.


88
With regard to the advertisement warning requirements,  the companies argue that the twenty-percent coverage of the  warnings will so burden cigar manufacturers that they will cease  advertising altogether.  The companies offer precious little to  support this difficult-to-believe proposition, and we find it  unpersuasive.  Other industries, including the manufacturers of  cigarettes and smokeless tobacco products, have successfully  incorporated warning schemes into their advertising practices, and  cigars present no special considerations that lead us to believe a  different result will ensue here.  Similar to the restrictions  upheld in Zauderer, Massachusetts "has not attempted to prevent  [cigar makers] from conveying information to the public; it has  only required them to provide somewhat more information than they  might otherwise be inclined to present."  Id. at 650.  As such, the  advertising restrictions do not violate the First Amendment.

2.  Commerce Clause Claim

89
Finally, the cigar companies claim that the cigar warning  requirements imposed by the regulations unduly burden interstate  commerce in violation of the Commerce Clause.  We agree in part.


90
a.  Advertising Requirements


91
Section 22.05 of the regulations makes it unlawful "for  any persons to advertise or cause to be advertised within  Massachusetts any cigar or little cigar unless the advertising  bears one of the warning statements . . . and the warning statement  . . . comprises 20% of the area of the advertisement and is in the  format required."  As the district court, appellants, and the  Attorney General all apparently agree, this language applies, on  its face, to advertisements in national magazines sold in  Massachusetts as well as to advertising on the Internet if viewed  from an Internet terminal in Massachusetts.  The district court,  although recognizing the burden on interstate commerce that would  result from a plain reading of the regulation, adopted a narrow  interpretation under which § 22.05 did not apply to national  magazines and Internet advertising, and upheld the regulation. While we agree with the district court's evaluation of the burden  that would result from a facial application of the regulation, we  think that the provision is not fairly susceptible to the narrowing  construction, and we find that it unduly burdens interstate  commerce.


92
The Supreme Court summarized the standard for evaluating  nondiscriminatory state regulations on commerce in Pike v. Bruce  Church, Inc., 397 U.S. 137, 142 (1970): "Where the statute  regulates even-handedly to effectuate a legitimate local public  interest, and its effects on interstate commerce are only  incidental, it will be upheld unless the burden imposed on such  commerce is clearly excessive in relation to the putative local  benefits."  The warning requirements, as they apply to  advertisements, satisfy the first inquiry of the Pike analysis  uncontroversially: informing consumers of the health risks  associated with cigar consumption is unquestionably a legitimate  local public interest.  However, even accepting the Attorney  General's further position that any effect on interstate commerce  is only incidental, the resulting burden on interstate commerce is  clearly excessive, even in relation to the Commonwealth's strong  interest in informing consumers of health risks.


93
The plain language of the regulations, which makes it  unlawful to "cause to be advertised" cigar products in  Massachusetts, imposes liability on manufacturers for advertising  in national magazines that are distributed in the Commonwealth, as  well as for advertising on the Internet which can be viewed from a  terminal in Massachusetts.14  As the district court recognized, this  "would place a great burden on interstate commerce since it would  require the Massachusetts Warning to be carried by a national  magazine in order to ensure that any copies ending up in  Massachusetts carry the Warning."  Lorillard II, 84 F. Supp. 2d at  203.  The court also concluded that "the Commonwealth's local  interest in capturing national magazines [and Internet media] is  outweighed by the burden it would place on interstate commerce." Id.  We agree with this evaluation of the burden imposed by the  regulations, and we similarly conclude that in this respect § 22.05  runs afoul of the Pike analysis.


94
The district court, however, endeavored to save the  regulations from invalidation by adopting a narrow interpretative  gloss to avoid the constitutional problems posed by a facial  reading.  With little if any support in the language of the  regulations, the court held that they would not apply to magazines  of truly national distribution, unless the magazine had a regional  or Massachusetts version, nor to Internet media.  Id.


95
Although federal courts may in some circumstances adopt  a "narrowing construction to which the law is fairly susceptible," Rhode Island Assoc. of Realtors, Inc. v. Whitehouse, 199 F.3d 26,  36 (1st Cir. 1999), the courts must also take care not to trample  the legislative or executive province of state authorities by  making unduly substantive additions or changes to laws and  regulations.  As the companies point out, the district court's  interpretative gloss may pose its own problems and ambiguities,  such as the determination of whether a magazine is "truly national"  in scope.  We also are skeptical of the court's reasoning that  Internet advertisements are not "within" Massachusetts; although we  understand the court's point, and appreciate the difficulties  inherent in regulation of speech in "cyberspace," the plain  language of the regulations covers a person or entity that  advertises on any Internet site viewable from a terminal in  Massachusetts.  Most important, there is simply no basis in the  language or history of § 22.05 to support the narrow reading of the  district court.  See Erzoznick v. City of Jacksonville, 422 U.S.  205, 216 (1975) (rejecting narrowing interpretation where, inter  alia, "the ordinance by its plain terms is not susceptible to a  narrowing construction").  In sum, although there can be no easily  and brightly demarcated line between proper narrowing construction  and judicial overreaching, we conclude that the regulations are  simply not "fairly susceptible" to the district court's narrowing  interpretation.  Rhode Island Assoc. of Realtors, 199 F.3d at 36.


96
We therefore hold that the warnings requirements for  advertising are unconstitutional.  Although appropriate intrastate  application of these or similar restrictions may be permissible,  § 22.05 does not lend itself to judicial parsing, and we leave it  to the Attorney General, if he so wishes, to craft a constitutional  warnings requirement for media and other cigar advertising.


97
b.  Packaging Requirements


98
The cigar companies also challenge the provision making  it unlawful to "manufacture, package, import for sale or distribute  within Massachusetts any manufactured cigar or manufactured little  cigar the package of which does not bear" the required warning. 940 C.M.R. § 22.04(1).  As all parties seem to agree, this language  imposes liability on a manufacturer whenever one of its cigars  appears in Massachusetts without the required warning, even when  the sale is conducted by third parties without the knowledge or  consent of the manufacturer.  We think that this provision burdens  interstate commerce in an impermissible manner.


99
As an initial matter, we would note that we do not find Pike problems with the Attorney General's labeling scheme in  general.  Similar warnings are required on a range of products by  a number of states, see, e.g., California Health & Safety Code  § 104550 (cigar labels and warnings); Ala. Code § 8-19-5(23)  (making it unlawful to affix a required revenue stamp to improperly  labeled cigarette packages); New York Alcoholic Beverage Control  Law § 107-a (authorizing and governing state labeling scheme for  alcoholic beverages), and the burden on manufacturers and retailers  of requiring state-specific packaging, while significant, does not  generally outweigh the benefits of informing the public of serious  health issues.  We generally agree with the Attorney General that  the companies' interest in the efficiency of a uniform national  labeling system cannot override the Commonwealth's substantial  interest in protecting its citizens.  Although it might not be  ideal for the companies to have to coordinate all Massachusetts  distribution through a central point to affix labels, this option  certainly would give the manufacturers adequate room within which  to maneuver, without imposing any undue burden on interstate  commerce.


100
However, there is one aspect of the regulations that  renders them unduly burdensome, and that is § 22.05's imposition of  liability for third party action.  As mentioned above, the  regulations impose liability on the manufacturers for every import,  sale, or distribution of an improperly labeled package in  Massachusetts, even when the sale or distribution is made by a  third party unconnected with the manufacturer, such as a mail-order  seller in another state or any other distributer, wholesaler, or  retail seller that sells cigars to Massachusetts consumers  independent of the manufacturer.  Under this scheme, the  manufacturers may not safely label only those packages intended for  Massachusetts; instead, to protect themselves against liability for  conduct totally without their control, the manufacturers have no  choice but to include the Massachusetts warnings on all packages,  just in case one should later appear in Massachusetts through  unforeseen channels.  This harsh practical effect of the  regulations stands in sharp contrast to all other warnings schemes  of which the Court is aware, which typically impose liability on  the ultimate seller, thus containing the law's effect intrastate  and also allowing all affected parties to take the necessary  precautions to comply with the law and avoid substantial liability. In this respect, we conclude that the benefit derived from the  regulations is clearly outweighed by the substantial burdens placed  on interstate commerce.


101
Unlike the advertising requirements, the labeling  provisions are not easily susceptible to parsing of what is  constitutional and what runs afoul of the Commerce Clause. Therefore, although we would find many aspects of the package  labeling provisions to pass constitutional muster, we must  invalidate them in their entirety and leave it to the Attorney  General to reformulate them, if he so desires, in a manner  consistent with this decision and the Constitution.  We therefore  hold 940 C.M.R. § 22.04 to be unconstitutional and without effect,  except insofar as it provides the warnings and format  specifications required in 940 C.M.R. § 22.05.

III.  Conclusion

102
For the reasons set forth above, we hold that the  Massachusetts regulations are not preempted by federal law, do not  violate the First Amendment, and do not violate the Commerce Clause except for 940 C.M.R. § 22.04 and § 22.05.  The judgment of the  district court is


103
Affirmed in part, reversed in part.



Notes:


1
   The appellants in these consolidated appeals include  manufacturers of cigarettes, smokeless tobacco products, and  cigars.


2
   This aspect of the district court's decision has not been  appealed and therefore is not before us.


3
   Although the FCLAA applies only to cigarettes, the smokeless  tobacco companies join the cigarette makers' challenge because they  contend that the regulations may not be severed to preserve the  smokeless tobacco provisions if the cigarette provisions are  declared invalid.  We do not reach this aspect of the companies  argument because we hold that the regulations are not preempted by  the FCLAA.


4
   The district court did invalidate one aspect of the regulations  under the First Amendment, finding that the Attorney General had  failed to demonstrate that the point-of-sale provisions requiring  indoor advertisements to be at least five feet from the floor were  sufficiently tailored to serve the government's interests.  SeeLorillard II, 84 F. Supp. 2d at 192-93.


5
   Both the FAIR and the Giuliani courts found that "tombstone"  provisions similar to that invalidated by the district court were  preempted by § 1334(b).  See FAIR, 189 F.3d at 640; Giuliani, 195  F.3d at 108.


6
   The Fourth Circuit, in Penn Advertising, 63 F.3d at 1324, found  that Baltimore's restrictions on outdoor cigarette advertisements  were not preempted by § 1334(b).  Although we do not adopt that  court's apparent conclusion that location restrictions do not  constitute a "'prohibition based on smoking and health,'" id., we  do agree with the general conclusion that Congress did not intend  § 1334(b) to preempt restrictions of the kind at issue there and in  this case.


7
   We also note that the Ninth Circuit, in Lindsey, 195 F.3d at  1073, concluded that a county ordinance banning all outdoor tobacco  advertising was preempted by § 1334(b).  That court determined that  "[d]espite the holdings of Penn Advertising, FAIR, and Giuliani,  the text of the FCLAA's preemption provision clearly preempts a ban  on outdoor advertising because such a ban constitutes a  'requirement or prohibition based on smoking and health . . . with  respect to the advertising or promotion of any cigarettes.'"  Id. (quoting 15 U.S.C. § 1331).  With all due respect, we conclude that  the court's analysis fails to avoid the "uncritical literalism"  that the Supreme Court has cautioned us against, Travelers Ins.,  514 U.S. at 656, and we disagree that "'[t]here is no good reason  to believe that Congress meant less than what it said,'" Lindsey,  195 F.3d at 1073, in the phrase "with respect to advertising."  We  find the decisions of the Second and Seventh Circuits more in line  with our reading of Congress's purpose, and more in line with our  understanding of the Supreme Court's instructions in the area of  federal preemption.


8
   Notwithstanding the tobacco companies' cries of mistreatment,  the context in which the Massachusetts regulations were promulgated  simply does not compare to that surrounding the suppression of  speech in AIDS Action Committee.  In that case, the suppression was  directed at a group advocating sexual health practices,  particularly with regard to AIDS -- an issue that evokes deep  feelings and often prejudices in our society.  Furthermore, the  suppression of speech in AIDS Action Committee, which was done with  no contemporaneous explanation of reasons or basis, also came after  a previous ad campaign had provoked public complaints which  included a substantial display of homophobia.  See AIDS Action  Committee, 42 F.3d at 3.  We found those particular circumstances  to give rise to a presumption of viewpoint discrimination, but we  did not suggest that ordinary commercial speech regulations, such  as those at issue in this case, would give rise to a similar  presumption absent comparable circumstances, which are simply not  present here.


9
   The study also sheds light on the FDA's decision to not regulate  cigars when it regulated cigarettes and smokeless tobacco in 1996,  abstention much touted by the cigar companies in their briefs. According to the monologue, data on youth cigar usage was largely  unavailable until recently.  See Cigars: Effects and Trends, Joint  Appendix at 2598.


10
   To be sure, the companies have presented studies in which no  correlation or causal relationship was found between advertising  and tobacco use.  They also are critical of several of the studies  cited by the Attorney General.  However, the fact that there may  exist differences of opinion on this issue is insufficient to  deprive Massachusetts of its ability to enact regulations based on  a well-founded conclusion that advertising restrictions will reduce  tobacco use among young people.


11
   We are not persuaded that the regulations further the state's  interest in prohibiting the dispersion of false and misleading  information to consumers.  However, because the other interests  identified by the Attorney General are directly advanced, this  failure does not require invalidation of the regulations.


12
   Congress prohibited such advertising of cigarettes and little  cigars in 1971, see 15 U.S.C. § 1335, and of smokeless tobacco  products in 1986, see 15 U.S.C. § 4402(f).


13
   We do note that, even under the district court's decision, which  was premised on the content-based nature of the tombstone  provision, the Commonwealth remains able to promulgate a new  exception provision that does not dictate the content of a small  information sign communicating to legitimate customers the  availability of tobacco products, if the Commonwealth so desires.


14
   On their face, the regulations arguably impose liability on the  print and Internet media, as well.


