Wednesday, July 11, 2012

Appeals Court Invalidates NYC Graphic Anti-Smoking Poster Law; Shows Why Campaign for Tobacco-Free Kids Negotiation of Tobacco Act Was a Travesty

Yesterday, the U.S. Court of Appeals for the Second Circuit upheld a federal district court's ruling that invalidated New York City's requirement that graphic, anti-smoking posters be displayed at the point-of-sale in all retail cigarette outlets.

So how does that demonstrate why the Campaign for Tobacco-Free Kids negotiating the Tobacco Act was a travesty? To understand that, I need to present some background.


In 2010, a federal judge invalidated New York City's ordinance which would have required the display of graphic, anti-smoking posters anywhere cigarettes are sold. The law was struck down because it violates the preemption clause in the Federal Cigarette Labeling and Advertising Act (FCLAA), which preempts state and local regulation of the advertising and promotion of cigarettes.

The Campaign for Tobacco-Free Kids responded with a press release arguing that the federal judge is "wrong on the law" because the proposed law regulates the sale of cigarettes, not their advertising or promotion.

According to the press release, entitled "Federal Court Is Wrong on the Law in Striking Down New York City's Requirement for Tobacco Health Warning Signs in Stores": "We believe that a federal judge was wrong on the law in striking down New York City's requirement that all businesses selling tobacco products post tobacco health warning signs. New York City acted lawfully to more effectively inform consumers about the health risks of tobacco use, and we urge the City to appeal. The judge ruled today that New York City's requirement is preempted by the Federal Cigarette Labeling and Advertising Act, which restricts the authority of states to regulate tobacco advertising and promotion. However, this ruling fails to recognize that New York City established the signage requirement as part of its regulation of the sale — not the advertising or promotion — of tobacco products, which is permitted by federal law. The new federal law enacted in June 2009 that grants the U.S. Food and Drug Administration authority over tobacco products explicitly protects the rights of states and localities to regulate the terms and conditions of tobacco sales. Contrary to today's ruling, New York City's regulation does not restrict the advertising or promotion of tobacco products."

This is an important statement, because it demonstrates that the effect of the Tobacco Act depends heavily upon whether the Campaign for Tobacco-Free Kids correctly understood and interpreted the law with regards to federal preemption of local tobacco regulation. The Campaign took it upon itself to negotiate the Act with Philip Morris, without involvement of the rest of the tobacco control community. In these secret, back-room negotiations, the Campaign made all of the decisions and took the future of local tobacco control regulation into its own hands.

Critically, any mistakes in understanding and interpretation of the law by the Campaign could result in devastating consequences for the future of tobacco regulation in the United States. 

The Rest of the Story

On January 27, 2011, I responded to the Campaign for Tobacco-Free Kids' argument with the following counter-argument:

The Federal Cigarette Labeling and Advertising Act (FCLAA) states 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 packages of which are labeled in conformity with the provisions of this chapter." (15 U.S.C. §1334)

The key phrase here that needs to be interpreted in light of New York City's proposed law is "with respect to."

The Campaign for Tobacco-Free Kids would have us construe "with respect to" in the most narrow possible way. The Campaign is arguing that the requirement for graphic anti-smoking posters is merely a restriction on the sale of cigarettes and does not affect the promotion of cigarettes in any substantial way that would invoke the preemption clause. The judge, however, found that such a construction of the term "with respect to" is too narrow.

Let me explain why I think the Campaign for Tobacco-Free Kids is the one who is wrong on the law and why I think that any restriction which substantially impacts the promotion of cigarettes, even if primarily intended as a restriction on cigarette sales, runs afoul of the "with respect to" meaning and therefore must be viewed as being preempted by federal law.

The clear intention of the graphic, anti-smoking posters is not simply the provision of scientific information or facts. One look at the intended images will convince anyone that the purpose of these posters is to discourage the purchase of cigarettes. In other words, this is all about requiring an anti-promotional display. It is intended to counter the promotion of cigarettes, or more accurately, to require cigarette retailers to counter their own promotion of cigarettes. There is no question that these required posters undermine the promotion of cigarettes by the store.

Thus, at its core, this regulation is not about regulating the sale of cigarettes. It is about regulating the promotion of cigarettes to the public.

Suppose that a city decided to require the display, at point of sale of cigarettes, of a six-foot poster with the text of the Surgeon General's warnings. Based on the Campaign's interpretation of the law, such a requirement would not be preempted because it is regulating the sale of cigarettes, not the advertising or labeling of these products. But such a provision would clearly be preempted by FCLAA because it is essentially requiring huge warning labels to be displayed at the point of sale. Only the federal government has the authority to regulate cigarette warning labels.

My point is that the mere fact that a regulation is intended to control the conditions under which cigarettes can be sold does not mean that the regulation is not being imposed with respect to the advertising and promotion of cigarettes. One must look more broadly at the overall impact of the restriction. If that restriction has a substantial and direct effect on the promotion of cigarettes, then it runs afoul of the preemption provision and is not permitted under federal law.

In this case, the proposed law clearly imposes a requirement regarding the promotion of cigarettes in retail stores. The law must therefore be interpreted as imposing a regulation with respect to the promotion of cigarettes. Such a regulation is preempted by FCLAA.

The city of New York has appealed the District Court judge's decision. Based on my analysis, I do not expect that appeal to ultimately be successful.

The Appeals Court Decision

In upholding the District Court's ruling, the Appeals court wrote: "Plaintiffs argue that it is a requirement with
respect to promotion; defendants argue that it is only a requirement with respect to sale. (Appellees' Br. at 20-21; Appellants' Br. at 24-25). We agree with plaintiffs that the Resolution is a requirement with respect to the promotion of cigarettes. ... By its terms, it affects the display of cigarettes, which is a type of promotion. Specifically, a display is a form of publicity that can further the sale of merchandise. ... Placing a graphic warning adjacent to a product display necessarily affects -- or "treads on," Vango Media, 34 F.3d at 74 -- the content of the image projected and the message conveyed to the consumer by that display. ... requiring a warning sign in close proximity to a cigarette display has practically the same effect as requiring a warning on the display itself, thereby directly affecting the content of the promotional message conveyed to consumers at the point of The display is therefore a form of promotion. Indeed, by the City's own admission, one of the reasons it chose to regulate the point of sale was to "deliver a different message" from that delivered by the cigarette manufacturers and to "counteract tobacco advertising." (Id. at 27; Proposal at 9). Requiring that the manufacturers' message be countered at the point of purchase is surely a form of regulating promotion."

The Consequences of the Co-optation of the Tobacco Control Movement by CTFK

The Campaign for Tobacco-Free Kids has demonstrated that it has a poor understanding of the law. I am not a lawyer, but it was clear to me based on a careful analysis of the facts of the case that the New York City law was preempted by FCLAA because it represented a regulation with respect to the promotion of cigarettes. Had the Campaign allowed the input of other groups and consulted with tobacco control experts throughout the country, it would have been informed of the invalidity of its interpretation of the law, and the Tobacco Act's preemption of local regulations like those attempted in New York City could have been avoided.

The Bigger Picture

When I started my career in tobacco control, it was truly a grassroots social movement. The individuals involved in the movement were largely unpaid volunteers and they were involved because of a deep personal conviction in the cause, motivated by nothing other than a sincere desire to reduce tobacco-related morbidity and mortality. Similarly, the organizations involved seemed to be motivated solely by a desire to reduce tobacco-related disease.

But there was one thing which we didn’t have in the movement: money. Both individuals and organizations worked either as volunteers or on a shoestring budget. Even many of the researchers in the field did their tobacco research on no budget or on a very low budget. There were no multi-million dollar grants for anti-smoking research or interventions.

At the time, many of us (myself included) felt that if only we had money, if only we could establish a huge infrastructure for tobacco control, then we could really have an impact. If only there were a number of well-funded, national organizations devoted to tobacco control. If only there were well-funded national grant-making organizations that could fund research and intervention at the local level. And if only these national organizations would have the money necessary to be able to access the media: that would give us tremendous political power.

Money, we believed, could extend and enhance the grassroots social movement of tobacco control, bringing it to all communities throughout the country.

I will be the first to admit that I was wrong.

Unfortunately, money has resulted in the appearance of one prominent anti-smoking organization – the Campaign for Tobacco-Free Kids – that in my opinion has essentially taken over the entire movement. There simply is no other organization with the level of resources available and thus there is no competition or opposition to anything the Campaign decides to do or to support.

While there could be no single, dominant organization when no one had money, the fact that one group has huge amounts of money and others have little has created a harmful monopoly in the tobacco control infrastructure.

But what makes the situation even worse is that the Campaign has co-opted the grassroots social movement of tobacco control by taking it upon itself to play the role of “official” representative of the tobacco control movement in all major federal policy matters. It was the Campaign that was at the negotiating table during the global tobacco settlement talks, which ultimately resulted in the Master Settlement Agreement. And it was the Campaign that was at the negotiating table during the talks that ultimately resulted in the federal FDA tobacco legislation.

In my opinion, the Master Settlement Agreement is the worst public health blunder of my lifetime. It will be surpassed as the worst blunder as the ill effects of the Tobacco Act are realized in future years. 

Unfortunately, policy makers in Washington seem to have the impression that somehow the Campaign for Tobacco-Free Kids is the representative of the anti-smoking movement. So anything the Campaign approves seems to be viewed – inaccurately -- as representing the endorsement of the public health establishment. It is the Campaign’s self-annointment as the representative for the movement that has enabled two of the worst federal tobacco control policies ever to gain acceptance.

Sadly, the infusion of money into the tobacco control movement has led to the end of the grassroots nature of the movement. Instead, it has resulted in its institutionalization as a money-driven bureaucracy that has little interest in what the grassroots actually think. I simply do not see groups like the Campaign for Tobacco-Free Kids or even the voluntary health agencies really taking the time to listen to their constituencies. They tell their constituencies what to think and what to support. There is no room for dissension or opposition and no interest in engaging the grassroots in the decision-making process.

So rather than being a movement that is driven by the community, through its individual grassroots advocates, the tobacco control movement has become one that is driven by one or two national organizations, without grassroots participation in the decision-making process.

Perhaps most importantly, I think that the “monopolization” of the tobacco control movement has pushed aside or perhaps even undermined the work of true grassroots organizations as well as individuals, working at the community level, leaving them essentially powerless. How can a local advocate or advocacy group play any kind of leadership role when the leadership has been usurped away by one or two national organizations?

So I have to say that I was wrong. The availability of money at the national level has not helped the tobacco control movement. It has hurt it.

While the national money has certainly resulted in some “accomplishments,” in the long run, I think it has resulted in, and will continue to result in greater harm to the tobacco control movement. What I see is the degradation of the movement due to its co-optation by one or two well-funded national organizations, with the loss of integrity and character of the movement and its major organizations, the emergence of a regulation for regulation’s sake mentality, and most importantly, the destruction of the grassroots social movement that achieved tremendous success in the effort to reduce the toll that tobacco takes on the health and lives of Americans.

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