Can New York Force Tobacco Retailers to Scare Away Their Customers?


This morning I was on MSNBC to discuss the anti-smoking posters that New York City is forcing tobacco retailers to conspicuously display in their bodegas, newsstands, and convenience stores. The regulation was approved by the New York City Board of Health a year ago, and the federal lawsuit challenging it was filed in June, so I'm not sure what prompted Jansing & Company to tackle the subject today. But this was the first time I had read the lawsuit (PDF), which was brought by retailers and three major tobacco companies with help from First Amendment expert Floyd Abrams. Their complaint raises three strong constitutional and statutory objections to the poster mandate:

1) It violates the First Amendment by compelling cigarette sellers to promote a message they do not endorse. The posters, which feature icky pictures of diseased lungs, brains, and teeth, urge customers to "QUIT SMOKING TODAY." They are not aimed at informing cigarette buyers about the risks posed by the product, a functi

on already served by the federally mandated warning labels on every package and ad (not to mention information about smoking from myriad other sources). Rather, the posters are aimed at grabbing people's attention and persuading them not to buy what the retailers are selling.  

2) The regulation violates the First Amendment by commandeering valuable point-of-sale advertising space for the government's propaganda, thereby interfering with the ability of retailers and tobacco companies to communicate their own messages.

3) The rule violates the federal Cigarette Labeling and Advertising Act, which bars states and municipalities from imposing any "requirement or prohibition based on smoking and health…with respect to the advertising

or promotion of cigarettes."

My MSNBC debating partner, anti-smoking activist Patrick Reynolds, made little attempt to rebut those points, although he did argue that the posters constitute "education" rather than "advocacy," a claim you can judge for yourself. Reynolds also pined for the day when a properly "liberal" Supreme Court will take an enlightened view of the First Amendment and uphold censorship of tobacco advertising.

The Boston Globe reports that health officials in Massachusetts are awaiting the outcome of the New York case before imposing similar anti-smoking messages on tobacco retailers there. Another tobacco-related First Amendment case involves  advertising restrictions imposed by Congress in last year's Family Smoking Prevention and Tobacco Control Act, which are likely to be overturned.