A federal judge has struck down a New York City ordinance requiring retailers to display graphic warnings about the dangers of smoking, ruling that such matters are exclusively within the domain of the federal government.
In 2009, the New York City Board of Health enacted a regulation requiring retailers to display posters featuring horrifying photographs illustrating the physical toll that smoking takes on a body. The posters feature the standard tobacco-related warnings -- smoking “causes lung cancer” or “causes tooth decay” -- but also include large, detailed photos of, for example, a blackened lung or a rotted tooth.
In June, the nation's three biggest tobacco companies -- Philip Morris, R. J. Reynolds, and Lorillard -- announced that they would challenge the law in federal court. The companies claimed that the city regulation is preempted by federal statutes, and that the law violates the First Amendment, since it forces retailers to display the posters, even if they disagree with their message.
“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 companies said in their suit.
Judge sympathetic but says law preempted
U.S. District Judge Jed Rakoff, of the Southern District of New York, agreed with the companies' preemption argument. He ruled that the Labeling Act, a federal statute, controls smoking-related warnings and preempts any state or municipal laws that attempt to usurp that authority. The Labeling Act is responsible for the now-famous Surgeon General's warnings that appear on the side of cigarette packages.
Since Judge Rakoff decided that the preemption argument was correct, he did not go on to examine the First Amendment claim.
In his ruling, Judge Rakoff seemed sympathetic to the law, noting that “within New York City, roughly 7,500 people die from smoking annually -- more than from AIDS, homicide and suicide combined.” However, he wrote that “even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs.”
"We are pleased that the Court recognized that only the federal government has the power to control the content of cigarette warnings," said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris USA.
"This lawsuit is not about communicating the health effects of cigarettes, which Philip Morris USA does in a number of ways, including on its Web site. Rather we brought this litigation because the city’s resolution violates Congress’ mandate giving the power to regulate content of cigarette advertising and promotion to the federal government, subject to constitutional limitations," Garnick said.
City considering options for appeal
Nicholas Ciappetta, an attorney for the city, told the Associated Press that the city is “disappointed that this important health initiative was rejected by the court,” and is “studying the decision and considering our legal options.”
New York Mayor Michael Bloomberg has been aggressive in enacting measures designed to curb smoking. In a 2008 Newsweek entry, he called tobacco use a “deadly epidemic” that kills more people than AIDS, malaria, and tuberculosis combined.
In 2003, the city banned smoking in restaurants and bars, and last year proposed a measure that would prohibit smoking in parks, plazas, and on beaches.