The California Supreme Court dismissed a class action suit against six tobacco companies. The suit alleged the companies used deceptive advertising practices to entice minors to begin smoking.

Five plaintiffs sued on behalf of all California minors who “smoked one or more cigarettes in California between April 2, 1994, and December 31, 1999″ claiming they began smoking as teenagers because the tobacco companies marketed their products in a deliberate effort to attract such underage customers.

The allegations against the tobacco companies included conducting market research on how to get 13- to 17-year-olds to start smoking, designing ads to appeal to minors and placing said ads near schools and playgrounds and in video arcades and youth-oriented publications. The plaintiffs sought restitution of the companies' profits from cigarette sales to minors since April 2, 1994.

In a unanimous decision, the court found the Federal Cigarette Labeling and Advertising Act preempts any state action seeking to regulate cigarette advertising. The FCLAA requires cigarette packaging to bear Surgeon General warnings, and a 1969 amendment states, “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 … labeled in conformity with the provisions of this chapter.”

A 1994 California Supreme Court ruling in Mangini v. R. J. Reynolds Tobacco Co. found that the FCLAA did not preempt state claims under the state unfair competition law. More recently, however, a 2001 U.S. Supreme Court opinion in Lorillard Tobacco Co. v. Reilly held that a Massachusetts ban on outdoor cigarette ads within 1,000 feet of schools, parks and playgrounds was preempted by FCLAA.

The court also rebutted the plaintiffs' efforts to show the tobacco companies' conduct constituted a crime–criminal activity would be an exception to FCLAA preemption. “The First Amendment … limits a state's power to treat speech as criminal,” wrote Justice Joyce Kennard. “… Consequently, plaintiffs cannot escape the FCLAA's preemptive force by claiming that defendants' conduct constituted an inchoate criminal offense.”