Late last year, 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 has 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."
The Rest of the Story
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.
Regardless of the legality of the proposed law, I question the public health rationale for the law and the motivation behind it. If tobacco products are so unsuitable for public consumption that New York City must require stores to actively discourage customers from buying their own products, then New York City needs to simply prohibit stores from selling that product. Clearly, it is not the public's health that is of paramount importance here - it is preserving cigarette sales in the city.
Thus, this law does the exact opposite of what its anti-smoking supporters say it does: it puts economic profits above public health.
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