Yesterday a federal judge ruled that New York City may not force tobacco sellers to put up anti-smoking posters. In response to a lawsuit filed by retailers and tobacco companies, U.S. District Judge Jed Rakoff agreed that the poster mandate, which city's health department approved at the end of last year, conflicts with the Federal Cigarette Labeling and Advertising Act of 1965. That law, which required warning labels on cigarette packages (later extended to print ads), simultaneously barred states and municipalities from imposing any "requirement or prohibition based on smoking and health...with respect to the advertising or promotion of cigarettes." A rule that forces cigarette retailers to discourage customers from buying their merchandise, Rakoff concluded, is such a requirement. "Even merchants of morbidity are entitled to the full protection of the law," he wrote, "for our sake as well as theirs." Since Rakoff decided the case on statutory grounds, he did not need to address the plaintiffs' arguments that the poster rule violates their First Amendment rights by commandeering valuable point-of-sale advertising space and compelling retailers to engage in speech with which they disagree.
I discussed the challenge to the poster mandate in October.
[via The Rest of the Story]