Page 132

at promotion, distribution, and use of tobacco products. Concordant with federal guidelines, a wide range of national experiments will take place, providing data on the effect of various programs.

State and local regulation of cigarette advertising to a large extent has been foreclosed by federal law, which expressly prohibits states and localities from imposing "any requirement or prohibition based on smoking and health . . . with respect to the advertising and promotion of any cigarettes" that meet federal labeling requirements.106 To the extent that state and local regulation of tobacco advertising or promotion aims to promote public health objectives, it is curtailed by this sweeping federal preemption. It can be argued, however, that state and local governments retain the authority to ban advertising likely to reach a large audience of children because such action aims mainly to minimize violations of laws against youth access and is, therefore, not "based on smoking and health." Relying on this argument, transportation systems in the cities of Boston, Denver, Portland, New York, Seattle, and San Francisco, and in the state of Utah, have eliminated tobacco advertising on their vehicles.107 Whether those actions are lawful remains unclear.

The communication and tobacco industries have legitimate interests in avoiding diverse and often incompatible state-by-state regulation of advertising and promotional activities occurring in national media. However, state and local governments should be free to circumscribe advertising and promotion that occur exclusively within the geographic boundaries of a single state in order to protect and promote the health and welfare of its citizens, subject only to the command of the first amendment. Therefore, Congress should modify the preemption provision so that the states have clear authority to restrict or ban advertising and promotion at the point of sale, on public transportation systems and vehicles, on billboards, in public arenas or sports facilities, or other locations located entirely within a state's boundaries.

Second, after state regulatory authority has been clarified and restored, states and localities should severely restrict the advertising and promotion of tobacco products on billboards and other outdoor media, on vehicles, in facilities of public transportation, in public arenas and sports facilities, and at the point of sale. States and localities should either ban tobacco advertising and promotion altogether or should restrict such messages to a "tombstone" format. Tombstone advertising would limit commercial messages to information about the product and would forbid the use of images and pictures. This approach is designed to eliminate all the images that imply that tobacco use is beneficial and make it attractive, and that encourage young people to use tobacco products. The most common concept of tombstone advertising would allow only text in an advertisement. A broader concept of tombstone advertising would permit the use of slogans, scenes, or colors in tobacco advertisements or on tobacco packaging. Specific decisions regarding the type of information that would be permitted should be made by a regulatory authority.