By Jon Hood
ConsumerAffairs.com

June 8, 2010
New York City used to be the "murder capital" of the country. These days, it looks more like the nation's health club and spa.

In 2003, the Big Apple outlawed smoking in all bars and restaurants, and in 2006 banished trans fats from local eateries. In 2008, the city began requiring chain restaurants to post the nutritional content of their offerings, meaning New Yorkers would never look at a Big Mac the same way again. And earlier this year, a state assemblyman from Brooklyn introduced legislation that would prohibit restaurants from using salt "in any form" when preparing food.

New York has gotten its share of good-humored ribbing about its "nanny state" tendencies over the past few years. But the city's latest regulation is getting more serious pushback from a determined source: the tobacco industry.

For the past six months, New York has required retailers to display posters with nauseating photos that show the effects of prolonged tobacco use. The placards include the typical warnings that smoking "causes lung cancer" or "causes tooth decay" but also feature photos of, for example, a blackened lung or a rotted tooth, to drive the point home in an extremely visceral fashion.

On Wednesday, three leading tobacco companies -- Philip Morris, R. J. Reynolds, and Lorillard -- filed a lawsuit contending the signs improperly usurp the federal government's role of regulating tobacco packaging. The companies also argue that the law violates the First Amendment, since it forces storeowners to display the signs even if they disagree with their message. The New York State Association of Convenience Stores, a non-profit trade association made up of 250 companies, also joined the suit.

"The mandated signs crowd out other advertisements and otherwise dominate the point of sale in many smaller establishments, to the exclusion of merchandise or other messages chosen by the store owners," the suit says.

Floyd Abrams, a First Amendment lawyer who is representing the retailers, told The New York Times on Friday that the city "doesn't have the right...to force other people to adopt its expression."

Sarah Perl, assistant commissioner for tobacco control at New York's Department of Health and Mental Hygiene, told the Times in December that the posters are intended to target consumers "at the point-of-sale moment." Perl added that customers have learned to tune out the generic Surgeon General's warnings that appear on all cigarette packs and advertisements, in large part because those warnings haven't changed much since their introduction in 1966.

Regardless of the outcome, the suit will have far-reaching consequences even outside New York. Massachusetts, which was in the process of implementing a law requiring similar signs, has a special interest in the case.

"Any education and cessation material we can get out there, we would like to get out on a state level," Jennifer Manley, a spokeswoman for the Massachusetts Department of Public Health, told Boston.com on Sunday. "We're going to keep watching New York City closely to see what the outcome is."

And even if the tobacco companies win this round, they'll take a hit in 2012, when federal standards will begin mandating more conspicuous warnings on cigarette packages. Unlike the subtle black-and-white boxes currently featured on the sides of cigarette boxes, the Family Smoking Prevention and Tobacco Control Act requires that warnings cover at least 50 percent of the package and that the word "warning" appear in capital letters.

The Act was signed into law by President Obama, himself an occasional smoker, last June.