Can the government require tobacco retailers to post signs in their stores warning about the dangers of tobacco use?

Maybe, although a recent court ruling placed some limits on this type of requirement. A federal court struck down a local law requiring health warning signs near tobacco displays and the point of sale, but left open the possibility that local or state governments might legally be able to require tobacco retailers to post such signs in other locations.

Background

In 2009, New York City’s Board of Health passed a regulation requiring tobacco retailers to post a warning sign in their stores about the negative health effects of smoking. The signs depicted graphic images such as diseased lungs and teeth and included a message encouraging smokers to quit, along with the local quit line number. 

Tobacco companies and sellers sued the city, claiming that the requirement was preempted by the Federal Cigarette Labeling & Advertising Act (FCLAA) and that it violated retailers’ First Amendment rights by forcing them to post a message in their stores that didn’t reflect their opinions.

The ruling

Photo credit: Gary TramontinaIn July 2012, the U.S. Court of Appeal for the Second Circuit ruled in 94th St. Grocery Corp. v. New York City Bd. of Health that the New York City regulation was preempted by federal law. The court held that the regulation was preempted by the FCLAA, which provides that 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.” The court interpreted the term promotion broadly to include even product displays and concluded that, because New York City required that graphic warnings be placed adjacent to product displays, the law was a requirement “with respect to the advertising or promotion of cigarettes.”

The court also held that the regulation did not fit within the exception to preemption created by the 2009 Family Smoking Prevention and Tobacco Control Act for “specific bans or restrictions on the time, place, and manner, but not content” of advertising or promotion. The court said the requirement in this case addressed the “content” of the cigarette manufacturers’ promotional message (in this case, the display of products).

The court was careful to say that it was not precluding all local regulation of cigarette marketing, or even foreclosing the possibility of health warning signs if they are posted in other places. But the court did not offer specific suggestions about what kinds of laws it would have upheld.

Because it decided the case on FCLAA grounds, the court did not consider any of the First Amendment issues.

What the case means for other cities

Although this case only directly applies to jurisdictions within the Second Circuit (New York, Connecticut, and Vermont), the decision will serve as guidance for courts in other parts of the country deciding a similar case. Although the court left open the possibility that some kinds of warning signs would not be preempted by FCLAA, it did not make clear exactly where warnings could be placed to avoid preemption. Of course, a government could require point-of-sale warning signs solely for non-cigarette tobacco products without running into FCLAA preemption, but there is still no court ruling regarding how such a law would fare under the First Amendment.

ChangeLab Solutions has been looking further into these issues and can provide technical assistance to any city interested in enacting a law requiring health warning signs. Please contact us for assistance with how to best create a new law. (Please note we are only funded to provide free technical assistance within California. If you are located outside of California and would like technical assistance, we can do so for a fee.)

Photo credit: Gary Tramontina