Philadelphia Board of Health Considering Requiring Graphic Anti-Smoking Posters at Point of Tobacco Purchase

According to an article in the Philadelphia Inquirer, the Philadelphia Board of Health is considering an ordinance that would require retail tobacco stores to display graphic anti-smoking advertisements at the point of purchase.

According to the article, one aspect of the advertisements would be a smoking cessation hotline number.

The Rest of the Story

Quite simply, the rest of the story is that the proposed regulation is almost certainly unconstitutional because it violates the free speech rights of retail stores by compelling them to engage in speech with which they disagree and which is intended to directly harm their business by discouraging the purchase of the items in question.

Consider, for example, the requirement that McDonalds post, at the point of purchase, a graphic advertisement that shows a clogged artery with a message discouraging consumers from eating Big Macs. This would clearly be viewed as violating McDonalds' free speech rights.

Similarly, consider a requirement that a store selling light bulbs post an advertisement with a picture of environmental damage urging customers to purchase fluorescent bulbs in order to save energy and lessen the carbon blueprint. This, too, would clearly be unconstitutional.

The government does have a legitimate right to require health warning labels at point of purchase of products that may be hazardous. However, the proposed posters are not merely warning labels. They are advertisements that promote smoking cessation. In other words, they go beyond warning about health consequences and proceed to encourage smokers to quit. They discourage consumers from purchasing the very products that are being sold by the retail stores which are being required to display the posters.

A similar ordinance enacted by the New York City Council was struck down by a federal judge, although the ruling is under appeal.