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While the Family Smoking Prevention and Tobacco Control Act of 2009 (the "FDA law") makes it easier for state and local governments to restrict tobacco marketing, the law does not leave the gates wide open to pass any kind of tobacco marketing restriction. The Federal Cigarette Labeling and Advertising Act (FCLAA) and the First Amendment to the U.S.Constitution still place limits on local and state communities' ability to pass such laws.
To give a brief overview of the potential ways in which state and local regulation of tobacco product marketing and promotion might be limited by the provisions of the FCLAA or the First Amendment, the Tobacco Control Legal Consortium, a collaborative network of legal centers, has prepared a set of guidelines and a fact sheet discussing the key considerations and listing some drafting tips. The Consortium has also created a flowchart to assist state and local governments to draft laws affecting tobacco marketing in such a way that they will be in the best position to withstand legal challenge.