Synopsis

NYC’s cigarette graphic warning requirement is struck down as preempted by the Federal Cigarette Labeling and Advertising Act.

Background

In 2009, the New York City Board of Health adopted a resolution requiring tobacco retailers to post signs that graphically depict the adverse health effects of tobacco use and provide information about cessation services.  The graphic warnings that were implemented focused solely on the adverse health effects of smoking, such as images of diseased lungs, brains, and teeth, in order to discourage consumers from purchasing cigarettes.

District Court Proceedings

On June 2, 2010, two cigarette retailers, two trade associations, and three of the country’s largest cigarette manufacturers–Philip Morris, R.J. Reynolds, and Lorillard–sued New York City in the U.S. District Court for the District of New York, claiming that the resolution was preempted by – or prohibited by – federal law and violated the First Amendment rights of retailers who disagreed with its message. 

The Tobacco Control Act modifies the preemption language in the Federal Cigarette Labeling and Advertising Act (FCLAA), which provides, “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 provision of this chapter.”  This portion of FCLAA was modified in order to specifically allow state and local laws that restrict the time, place, and manner but not the content, of cigarette advertisements and promotions.

On August 20, 2010, the American Legacy Foundation and twenty-four other nonprofit health organizations and advocacy groups, including the Public Health Law Center, filed an amicus brief in support of the New York City Board of Health. The brief argues that the City’s health resolution is tailored to advance the City’s compelling interest in alerting consumers to the serious health dangers of tobacco use, and point out that the use of a graphic on anti-smoking signs significantly increases their effectiveness, the size of the signs is needed to achieve their purpose, the placement of the signs at the point of sale maximizes their effectiveness, the cessation information on the signs directly advances the resolution’s goals, and the plaintiffs’ proposed alternatives would not achieve the same level of success as the resolution’s anti-smoking signs. We also contend that the health warnings required by Resolution § 181.19 do not involve compelled ideological speech.

On December 29, 2010, Judge Jed S. Rakoff of United States District Court in Manhattan struck down the New York law, in a ruling that focused on the preemptive power of the 1965 federal Labeling Act. The judge said the law, although well-intentioned and aimed at addressing the “public health threat” of smoking, violated the Labeling Act’s provision forbidding any state laws from conflicting with the federal government’s policies on cigarette warnings and advertisements. In the judge’s view, New York City’s graphic warning signs were related to the promotion of cigarettes, and since only the federal government has the legal authority to regulate the advertising or promotion of cigarettes, the law was invalid. Because this finding resolved the case, the court did not address the First Amendment questions raised by the tobacco companies.

Proceedings in the U.S. Court of Appeals for the Second Circuit

New York City appealed the ruling to the U.S. Court of Appeals for the Second Circuit. On April 15, 2011, Public Health Law Center filed a brief in support of New York City’s requirement that graphic warnings be posted in retail stores to warn consumers of the dangers of tobacco products. Our brief argues that the Federal Cigarette Labeling and Advertising Act, which was amended in 2009 by the Family Smoking Prevention and Tobacco Control Act, does not preempt, or prohibit, the City from having such a requirement. Joining PHLC this brief were Action on Smoking and Health, the American Cancer Society, the American Lung Association in New York, the American Thoracic Society, Americans for Nonsmokers’ Rights, The Campaign for Tobacco-free Kids, the Framework Convention Alliance, the National Association of County and City Health Officials, and the National Association of Local Boards of Health.

On July 10, 2012, however, the U.S. Court of Appeals for the Second Circuit upheld the district court’s decision that struck down the Board of Health resolution on the basis that it was preempted – or prohibited by – FCLAA.   The appellate court found that the warning signage requirement affected the display of cigarettes, which is a type of promotion. The court also was concerned that allowing local authorities to post supplemental warnings on or near cigarette displays risks creating diverse, nonuniform, and confusing regulations in the context of the Tobacco Control Act’s graphic warning requirement.

The court clarified that not all state and local regulations related to cigarette promotion are preempted, given FCLAA’s exemption for state and local regulations that restrict the time, place, and manner but not content, of cigarette promotion.  The court found that the exemption did not apply to the New York City Board of Health resolution because it affected the content of manufacturers’ promotional messages and it applied “wherever” tobacco products are sold, which it found was not a lawful restriction on the “place” of tobacco product promotion.

Litigation Status

The New York City Board of Health did not appeal this decision to the United States Supreme Court, rendering the Court of Appeals’ decision final.