Attorney General of Nebraska — Opinion
DATE: February 6, 1989
SUBJECT: Limitation on Distribution of Smokeless Tobacco Products — LB48 (1989)
REQUESTED BY: Senator Don Wesley, Chairperson Health and Human Services Committee
WRITTEN BY: Robert M. Spire, Attorney General Linda L. Willard, Assistant Attorney General
You have requested an opinion as to whether the provisions of LB48 of the 1989 session are in violation of either the Commerce Clause or the First Amendment of the United States Constitution. LB48 concerns the limitation on the distribution of smokeless tobacco.
We have reviewed LB48 with the amendments submitted by your office and determined that it is not in conflict with either the Commerce Clause or the First Amendment of the United States Constitution.
We have also reviewed the amendments proposed by the Smokeless Tobacco Council as they relate to the Commerce Clause and Fist Amendment to the United States Constitution. We have also determined that these amendment are not in conflict with the authorities mentioned.
The United States Supreme Court decision in Central Hudson Gas and Electric Corporation v. Public Services Commission of New York, 447 U.S. 557 (1980) has been alluded to by others in support of the argument that the proposed legislation is unconstitutional. However, in Central Hudson the State had placed a total ban on all advertising. At the time the ban was imposed, the State had an overriding state interest precipitated by a fuel shortage. After the fuel shortage had eased, the State attempted to continue the total ban on advertising based on their interest in conserving fuel and in securing fair and effective utility rates. The United States Supreme Court struck down the prohibition because the link between the advertising prohibition and the State’s interest was too tenuous and the ban was more extensive than necessary to further the State’s interest.
LB 48 has a stated purpose of enforcing the prohibition of smokeless tobacco use by minors. The Legislative Bill does not ban advertising of smokeless tobacco products but merely limits the distribution of free samples or the offer of coupons or rebate offers for smokeless tobacco products. The Bill as a legitimate purpose of protecting minors from the use or abuse of smokeless tobacco and makes use of a means less than a complete ban on advertisement or sale of the product.
Similar legislation is in effect in other states in relation to smokeless tobacco. Also, several States have had legislation in place for several years in the ar of alcoholic beverages that is similar to the restrictions in LB 48.
Sincerely yours,
ROBERT M. SPIRE Attorney General
Linda L. Willard Assistant Attorney General
Approved: ____________________ Robert M. Spire Attorney General