MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

Plaintiff National Association of Tobacco Outlets, Inc., an association representing the interests of tobacco retailers, tobacco-related manufacturers, and tobacco-related wholesale distributors; and Plaintiffs R.J. Reynolds Tobacco Company; Philip Morris USA Inc.; and Lorillard Tobacco Company, tobacco manufacturers, bring this action against the City of Worcester, its Division of Public Health, its Commissioner of Public Health, and its City Manager, challenging as violative of the First Amendment the recently enacted provision of Worcester's Tobacco Products Control Ordinance (the "Ordinance") that prohibits outdoor advertising of tobacco products within the City of Worcester. The plaintiffs filed a Complaint seeking preliminary and permanent injunctions preventing enforcement of the provision and a declaratory judgment regarding its constitutionality. Before me is a motion for preliminary injunctive relief and for summary judgment.

I. BACKGROUND

On May 10, 2011, the Worcester City Council amended its Tobacco Products Control Ordinance. Worcester Massachusetts Revised Ordinances of 2008 ch. 8, § 3. One new provision of the Ordinance regulates the advertisement of tobacco products in Worcester. It states:

Id. at (i)(1).

A second provision states that "[n]o retail establishment or entity shall sell or cause to be sold blunt wraps." Id. at (g)(7). The definition of a "blunt wrap" explains that it is a "cigarette-like rolling paper that is thick and dark and usually made from tobacco leaves. Blunt wraps come in flavored varieties and are heavily marketed to the youth and often used as drug paraphernalia." The restriction on sale of blunt wraps is no longer in dispute.1

Prior to final adoption of the Ordinance, the Worcester City Council made a number of findings. Most of these findings related to the harms caused by tobacco and the relationship between tobacco advertising and increased tobacco use. Among the findings are the following:

The plaintiffs are concerned that the Ordinance's advertising regulation will impede their ability to market their products within the City of Worcester. They initially moved for a preliminary injunction to enjoin enforcement of the advertising provision. The parties have stipulated to a stay of enforcement of the Ordinance pending litigation of the motion.

During a scheduling conference with the parties, I suggested the possibility that the issues presented might be ripe for summary judgment. The plaintiffs then moved for summary judgment, referring to the arguments made in their memoranda in support of their motion for a preliminary injunction. As will appear below, I find the issues lend themselves to resolution by summary judgment and consequently will not pause to address the preliminary injunction motion.

II. STANDARD OF REVIEW

A movant is entitled to summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party," and "[a] fact is material if it has the potential of determining the outcome of the litigation." Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir.2011) (quoting Rodríguez-Rivera v. Federico Trilla Reg'l Hosp., 532 F.3d 28, 30 (1st Cir.2008)). In evaluating a motion for summary judgment, a court must "view the facts in the light most favorable to the party opposing summary judgment." Rivera-Colón v. Mills, 635 F.3d 9, 10 (1st Cir.2011).

III. ANALYSIS

At issue is the plaintiffs' contention that the Ordinance's provision prohibiting outdoor advertising (and indoor advertising that can be viewed from the street) violates their First Amendment commercial speech rights under the United States Constitution.

Commercial speech such as this is subject to the First Amendment, but afforded a lesser protection than other types of expression. United States v. Edge Broadcasting Co., 509 U.S. 418, 426, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993). The Supreme Court has set forth a sequential test to determine the validity of a regulation of commercial speech:

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Applying the test here,2 I find the Ordinance violates the First Amendment.

A. Nonmisleading Advertisements Regarding Lawful Activity

The defendants do not contend that the advertisements prohibited by the Ordinance are misleading (at least as a general matter). Additionally, the defendants concede that the Ordinance prohibits speech concerning lawful activity with regard to the sale of most tobacco products. However, because the Ordinance also prohibits the sale of blunt wraps in Worcester, the defendants contend that the plaintiffs' First Amendment case regarding blunt wraps alone founders at the first step of the Central Hudson analysis. They claim that because cigar wrap sales are unlawful in Worcester, the First Amendment offers no protection to blunt wrap advertisements in Worcester.

The "lawful activity" inquiry under Central Hudson requires a consideration of whether the regulated speech at issue "is speech proposing an illegal transaction." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 496, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). A transaction need not be criminal to be "illegal" in this context, and its illegality may stem from its prohibition by a city ordinance. For example, in support of the illegal activity exception to First Amendment protection, Central Hudson cites Pittsburgh Press Co. v. Pittsburgh Human Relations Commission, 413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973), a case in which a ban on commercial speech related to illegal activity was upheld, where the illegal activity at issue was employment discrimination in violation of a Pittsburgh anti-discrimination ordinance.

Here, the defendants fail to consider the legality of the different types of transactions the promotion of which is prohibited by the Worcester Ordinance. While an advertisement in Worcester specifically promoting sales of blunt wraps in Worcester promotes unlawful activity, an advertisement in Worcester promoting such sales in the nearby city of Fitchburg (where sales are apparently lawful) or an advertisement promoting such sales generally, without reference to location, is within the scope of First Amendment protection.

One of the first Supreme Court cases to provide First Amendment protections to commercial speech addressed the broad issue of advertising of services and products unlawful where the advertising ban is imposed but lawful in other jurisdictions. In Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975), the Supreme Court held that a Virginia statute making it a misdemeanor to encourage the procurement of an abortion violated the First Amendment when the statute was applied to a Virginia newspaper editor who had published an advertisement from a New York abortion referral service regarding legal abortions in New York. The Court stated:

Bigelow, 421 U.S. at 824-25, 95 S.Ct. 2222. The Court went on to explain:

Id. at 827-28, 95 S.Ct. 2222. The Supreme Court thus took a strong position against the constitutionality of a prohibition by one locality, such as Worcester, on advertising regarding activities lawful in another locality, such as Fitchburg.

The Sixth and Ninth Circuit Courts of Appeal have, as I do, interpreted Bigelow to mean that an activity is `lawful' under the Central Hudson test so long as it is lawful where it will occur.

In Katt v. Dykhouse, the Sixth Circuit discussed "whether the First Amendment protects speech that proposes a transaction lawful in the place where the transaction is to occur when both the underlying transaction and the offer are unlawful in the place where the offer is made" and "conclude[d] that the First Amendment does provide such protection." Katt, 983 F.2d 690, 695 (6th Cir.1992). See also Record Revolution No. 6, Inc. v. City of Parma, 638 F.2d 916, 937 (6th Cir.1980), vacated and remanded on other grounds, 456 U.S. 968, 102 S.Ct. 2227, 72 L.Ed.2d 840 (1982) ("The cities' interest in regulation of advertising is limited to preventing the sale of drug paraphernalia inside their municipal boundaries. Their legitimate interest does not include regulating the information heard or read by their citizens about the availability of legal `drug paraphernalia' in other locales.").

In Washington Mercantile Association v. Williams, the Ninth Circuit held that "[s]ale or delivery of drug paraphernalia is illegal in Washington, so advertisements for sales or mail orders from Washington are unprotected speech. In contrast, the advertiser who proposes a transaction in a state where the transaction is legal is promoting a legal activity. Its speech deserves First Amendment protection." Washington Mercantile, 733 F.2d 687, 691 (9th Cir.1984).3

Additionally, while neither has decided the issue, the First Circuit and the Eighth Circuits have both spoken favorably regarding the argument for First Amendment protection based on Bigelow. See New England Accessories Trade Ass'n, Inc. v. City of Nashua, 679 F.2d 1, 4 (1st Cir.1982) ("If New York, or some other state, decided to legalize the sale and use of marijuana, New Hampshire would have greater difficulty under Bigelow prohibiting an advertisement suggesting that the Big Apple was the place to get high on marijuana."); Casbah, Inc. v. Thone, 651 F.2d 551, 564 n. 19 (8th Cir.1981) ("Out-of-state advertisers arguably have a first amendment right to make their wares known to Nebraska citizens.").

I conclude the Bigelow reasoning should apply to advertising in a city where the proposed transaction is illegal so long as the transaction is legal elsewhere and the advertising does not specifically propose a transaction in a locale where that transaction is illegal. Worcester may not properly bar those who seek to disseminate information so as to enable its citizens to make better informed decisions about transactions that are legal elsewhere. Under the first prong of Central Hudson, the City of Worcester may not bar, for example, the dissemination of information to Worcester residents about the characteristics of various brands of blunt wraps for sale outside of Worcester, so long as the advertising does not specifically propose a sale in Worcester or some other locale where such a transaction would be illegal.

Central Hudson's unlawfulness prong would deny First Amendment protection only to blunt wrap advertisements that promote the illegal sale of blunt wraps. For example, the unlawfulness prong would deny protection to blunt wrap advertisements that promote the sale of blunt wraps within Worcester, including but not limited to such signs as "cigar wraps available here." To the extent that the blunt wrap advertisement does not specifically promote such unlawful activity — that is, does not specifically promote a sale to occur within a jurisdiction where it is illegal — it would pass the first step of the Central Hudson test.

B. Substantial Government Interest

The plaintiffs do not claim that the City of Worcester lacks a substantial government interest in preventing youth tobacco use.4 However, they argue that the City's substantial interest is limited to protecting minors. They contend that the City has no legitimate interest in prohibiting non-misleading advertising to adults to prevent them from making decisions of which the City disapproves.

I agree. In Thompson v. Western States Medical Ctr., 535 U.S. 357, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002), the Supreme Court considered a First Amendment challenge to a statute prohibiting the promotion of compounded drugs. The majority opinion stated:

Thompson, 535 U.S. at 374, 122 S.Ct. 1497 (internal citations omitted). The Court thus rejected the principal interest advanced by the City of Worcester in support of its advertising restriction, namely the prevention of the dissemination of truthful information about a category of disfavored products in order to prevent members of the public from making the bad decision to use those products.

The Supreme Court in Thompson explained that this type of interest is foreclosed by the First Amendment. The majority stated that "[i]t is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us." Id. at 375, 122 S.Ct. 1497 (quoting Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 770, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)). Thompson made clear that the government may not promote its policy preferences "by keeping the public in ignorance." Id. (quoting Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 770, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)).

The defendants argue that Thompson is inapposite. They point out that Thompson turned on the fourth, and not the second, prong of the Central Hudson test. Id. at 371-74, 122 S.Ct. 1497. They further note that the government never argued that its interest depended on doctors succumbing to advertising-induced pressure from patients, observing that the opinion begins the section with the words "[e]ven if the Government had argued...." Id. at 375, 122 S.Ct. 1497 (emphasis added). The defendants' contention boils down to a claim that the language quoted from Thompson is mere dicta.

Where a statement in a Supreme Court majority opinion is "dictum that appears to have been carefully considered," the First Circuit has stated that it is "both unable to ignore [the dictum] and unwilling to do so." McCoy v. Massachusetts Institute of Technology, 950 F.2d 13, 19 (1991). Here, the dicta bears "the earmarks of careful consideration." Id. In support of its position, the majority in Thompson considered Supreme Court precedents, indicating that thought and research went into the statement. Moreover, the majority appears to have been responding to the dissenting opinion, which states that "[t]here is considerable evidence that consumer oriented advertising will create strong consumer-driven demand for a particular drug," that "there is strong evidence that doctors will often respond affirmatively to a patient's request for a specific drug that the patient has seen advertised," and that prescriptions written "even in the absence of special need" would lead to "individual risks [that] added together can significantly affect the public health." Thompson, 535 U.S. at 383-84, 122 S.Ct. 1497 (Breyer, dissenting). The majority was thus presented with the opposing viewpoint and nonetheless stated that the government has no such interest.

While the Thompson Court's statement was, strictly speaking, dicta, lower courts "are bound by the Supreme Court's considered dicta almost as firmly as by the Court's outright holdings, particularly when, as here, a dictum is of recent vintage and not enfeebled by any subsequent statement." McCoy, 950 F.2d at 19. The defendants point to no subsequent statement placing the Thompson statement in doubt. In the instant case, the Thompson reasoning means that the City of Worcester cannot meet the substantial interest prong of the Central Hudson test as applied to the Ordinance's protection of adults from tobacco advertising. The question of the substantial interest in protecting minors from tobacco advertising will be considered in Section III. E. infra.

C. Interim Conclusions Regarding Threshold Central Hudson steps

Marginally affirmative answers can be given to the threshold questions whether the Ordinance bans nonmisleading advertising concerning lawful activity and whether the city has a substantial interest in restricting such advertising. To the degree that the advertising under consideration proposes the sale of tobacco products in a jurisdiction where the transaction is lawful, the first Central Hudson factor is satisfied. And to the degree that the advertising is addressed to minors, Worcester has a substantial interest supporting restrictions as to them at least to the extent the restriction is no more than is necessary to serve that interest; Worcester has thus satisfied the second Central Hudson factor. I now to turn to consideration of the third and fourth Central Hudson factors.

D. Direct Advancement

The City of Worcester can not meet the separately considered direct advancement factor of the Central Hudson analysis as applied to the Ordinance's protection of adults from tobacco advertising. In Sorrell v. IMS Health Inc., ___ U.S. ___, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011), the Supreme Court considered a challenge to a Vermont law preventing pharmacies from sharing prescriber-identifying information for marketing purposes. The Sorrell Court did not address the substantial interest prong of the Central Hudson test. Instead, the Sorrell decision skipped ahead to the direct advancement factor, and integrated what is substantially the same reasoning discussed in Thompson into that third factor. The Court stated:

Id. at 2670 (internal citation omitted). Explaining its objection to those means, the Court went on to cite Thompson:

Id. (citing Thompson, 535 U.S. at 374, 122 S.Ct. 1497).

The Sorrell Court developed the full ramifications of this reasoning. In rejecting the Vermont's argument that the marketing was targeted because it was particularly effective (and to that degree particularly harmful), the Court stated:

Id. at 2671 (emphasis added). Under Sorrell, the City of Worcester may not seek to remove a popular but disfavored type of products — those products that serve tobacco usage — from the marketplace by prohibiting truthful, nonmisleading advertisements directed to adults.

The defendants argue that Sorrell should be distinguished because "the City's interest supporting the Ordinance is not a mere policy difference on the question whether people should smoke cigarettes, it is a question of saving lives, reducing serious illness and reducing expenses, all caused by a product that, when used as intended by its manufacturers, inflicts death and destruction on a massive scale." This argument does not accord with the reasoning used by the Court in Sorrell. Sorrell did not decide the substantiality prong; it was immaterial to the decision whether Vermont's interest was unimportant or quite crucial. Id. at 2670. The Court found it sufficient to note that the speech was prohibited in order to prevent it from persuading its intended audience; that alone indicated that the law failed to meet the direct achievement prong and therefor infringed the First Amendment.

Decided in the Supreme Court's last term, Sorrell is the Court's last word to date regarding restrictions on commercial speech. Under Sorrell, Worcester may not prohibit tobacco advertisements in order to prevent adults from making the choice to legally purchase tobacco products. Worcester "has burdened a form of protected expression that it found too persuasive. At the same time, [Worcester] has left unburdened those speakers whose messages are in accord with its own views. This [it] cannot do." Id. at 2672. Sorrell, however, does not address a substantial interest in restricting advertising directed at minors. As to that interest, the fourth factor in the Central Hudson analysis is dispositive.

E. Extent Necessary to Serve the Government's Interest

While the restriction of truthful advertisements in order to prevent adults from purchasing a disfavored product fails on the second and third prongs of the analysis, the Worcester Ordinance additionally, perhaps principally, was enacted to prevent minors from accessing and using tobacco products. However, any argument for the constitutionality of the Worcester Ordinance based on this purpose is no more successful in light of the fourth prong of analysis. The only relevant difference that the defendants have identified between the Ordinance and the statute that the Supreme Court ruled violated the First Amendment in Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001), is that the Ordinance's purpose is to protect adults as well as children. The defendants conceded at oral argument that the speech restriction's validity depended on that difference. Understandably, even the defendants do not argue, in the final analysis, that the Ordinance can be upheld in order to protect minors from accessing tobacco products. A consideration of Lorillard will demonstrate why.

In Lorillard, the Supreme Court invalidated a Massachusetts statute enacted to protect minors from tobacco products. The advertising restrictions were almost identical to the restrictions in the Ordinance, except that the statute's geographical requirements were somewhat more lenient. In the statute at issue in Lorillard advertisements visible from the street were only prohibited within 1000 feet of a school or playground. In the Worcester Ordinance they are prohibited anywhere in the City.

The Supreme Court ruled that the statute in Lorillard violated the First Amendment because it did not satisfy the fourth factor in the Central Hudson analysis: it was more extensive than necessary to serve the government's interest. The Court stated that while "[t]he State's interest in preventing underage tobacco use is substantial, and even compelling.... We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products." Id. at 564. The Court held that "[t]he governmental interest in protecting children from harmful materials ... does not justify an unnecessarily broad suppression of speech addressed to adults." Id. (quoting Reno v. American Civil Liberties Union, 521 U.S. 844, 875, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)) (alteration in original).

Like the Commonwealth of Massachusetts in Lorillard, the City of Worcester failed to differentiate among the different locales affected by the Ordinance. It is possible that some points of sale are generally frequented by minors and others are almost solely occupied by adults. It is possible that some neighborhoods and some types of stores would be more burdened by the Ordinance. A "case specific analysis makes sense, for although a State or locality may have common interests and concerns about underage smoking and the effects of tobacco advertisements, the impact of a restriction on speech will undoubtedly vary from place to place.... The uniformly broad sweep of the geographical limitation demonstrates a lack of tailoring." Id. at 563, 121 S.Ct. 2404.

In addition, beyond the issue of geographic limitations is the question of what types of advertising should be restricted. "To the extent that studies have identified particular advertising and promotion practices that appeal to youth, tailoring would involve targeting those practices while permitting others. As crafted, the [Ordinance] make[s] no distinction among practices on this basis." Id. The defendants do not contend that they made any effort to determine what types of advertisements are most harmful to minors. The broad sweep of the Ordinance suggests that the defendants did not consider how to tailor the restrictions so as not unduly to burden the plaintiffs' free speech rights and the rights of adults to truthful information about tobacco products.

Further, the Ordinance does not distinguish between types of signs. "[A] ban on all signs of any size seems ill suited to target the problem of highly visible billboards, as opposed to smaller signs." Id. Nor does the Ordinance distinguish between different types of retailers. "The ban on any indoor advertising that is visible from the outside ... presents problems in establishments like convenience stores, which have unique security concerns that counsel in favor of full visibility of the store from the outside. It is these sorts of considerations that the [City Council] failed to incorporate into the regulatory scheme." Id. at 565, 121 S.Ct. 2404.

Following the Court in Lorillard, I "conclude that the [defendants have] failed to show that the outdoor advertising regulations... are not more extensive than necessary to advance the [City's] substantial interest in preventing underage tobacco use." Id. Neither the City's goal to prevent tobacco related health problems among adults nor its correlative goal regarding minors provides a basis for the Ordinance to meet all four prongs of the Central Hudson test.

IV. CONCLUSION

For the reasons set forth above, I GRANT summary judgment to the plaintiffs and direct entry of judgment declaring5 unconstitutional Worcester's prohibition on advertising the sale of tobacco products.