Nanny State

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

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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.

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  1. If I lived in NY I would start wearing T-shirts with pictures of people who were beaten by the NYPD or wrongfully convicted of crimes by the City or state attorneys with the words “Authoritarianism causes misery.” etc. etc.

    But since I live four hours in the past, I was thinking about having some Prop 65 shirt printed saying “This person contains chemicals known to the State of California to cause cancer.”

    1. Oh, I like these ideas VERY much – I’d totally wear the NYPD beatdown shirt!

    2. I’m sure that’d go over great. I can see the “Truth” people out there spitting on you for exercising your rights while they prevent people from entering their offices because they work for the evil tobacco corporations.

      They are the worst of the hipster douches.

      1. They are the worst of the hipster douches.

        The worst? That’s a bold statement. There are A LOT of different types of hipster douches.

        1. Ooh, I can see it now:
          “Coming soon to CURRENT: Battle of the Hipster Douches! Do you have what it takes to be the biggest Hipster Douche in America?”

          1. I thought that’s what all their shows already were. A giant douche-off.

    3. That would be a pretty good way of becoming one of the people beaten by the NYPD. They don’t have much of a sense of humor.

      And I still want to know how Mikey got a third term, in legal terms.

      1. That’s what you get when the city council has the power to amend its own charter.

  2. Cancer merchant! Cancer merchant! Cancer merchant!

  3. Cancer merchant! Cancer merchant!

  4. I quit smoking Monday. I still respect your right to do so if you wish. Me – done. Feels good after…28ish years? Something like that. Did it without the gummint’s help, fuck you very much.

    Ever vigilant we must be, lest “the right people” catch more traction.

    1. Yet another life saved by me!

  5. Cancer merchant!

  6. New York City. Can’t make salsa, jerks playin baseball. Now this. Yeah, it pretty much sucks as a place.

    1. New York! The city that never sleeps…because there’s always a cop beating someone below their bedroom window.

      1. I hear you get used to the noise eventually…

        1. It’s one of the perks of urban living!

      2. Or sodomizing them.

        Oh, that’s right, the last few got off. That must mean they’re innocent.

      3. A friend of mine got nabbed in Brooklyn while buying some coke (yes, he was being stupid). The fucking pigs shoved him in the back of the car, drove to a bodega, got beers, and then drove around drinking the beers and telling him how fucked he was. He was terrified. Lucky for him his father is rich and he got a good lawyer, and it all got swept under the rug. Good times.

        1. Probably one of my all time favorite Onion articles-

          8.4 Million New Yorkers Suddenly Realize New York City A Horrible Place To Live ‘We’re Getting The Hell Out Of This Sewer,’ Entire Populace Reports

          “I always had this perverted sense of pride because I was managing to scrape by here,” said Brooklyn resident Andrew McQuade, who, after watching two subway rats gnawing on a third bloody rat carcass, finally determined that New York City was a giant sprawling cancer. “Well, fuck that. I don’t need to pay $2,000 a month to share a doghouse-sized apartment with some random Craigslist dipshit to prove my worth. I want to live like a goddamn human being.”

          1. That is f’ing classic.

        2. Was the stupidity in buying coke, or in buying coke in Brooklyn, or just being in Brooklyn, or in being a friend of yours? =)

          Some ambiguity there …

          1. He had been doing a lot of coke recently, and he wanted more and the handoff was at the fucking bus stop instead of in a private residence. That was extra crispy fried stupid.

            Living in Brooklyn is another stupid thing. What kind of animal doesn’t live in Manhattan, like I did?

            And being a friend of mine is a totally different class of stupid.

            1. I wouldn’t be friends with anyone who would have me as a friend.

  7. This strikes me as a nanny-ist stupid law (saving people from themselves), but I can’t see why it would be anymore wrong/illegal to make a retailer of a product carry warnings in the store if it is ok to force the manufacturer of the product to carry a warning on the package…

    1. The warnings on the packages are also a violation of First Amendment rights, and Ninth Amendment rights, and probably a few other bits.

      But, we have a fundamental, irreconciliable difference about what enumerated powers the federal government has under the constitution.

      1. It’s funny because the “difference” you have is between what it says, and what ChonMNG want it to say.

    2. I can’t see why it would be anymore wrong/illegal to make a retailer of a product carry warnings in the store if it is ok to force the manufacturer of the product to carry a warning on the package…

      The difference is that these are not warnings, they are shock-porn expressly advocating that people “Quit Smoking Today”. Patrick Reynolds apparently lacks basic intellectual depth.

      Oh, by the way, the last thing the federal government or any of the state governments want is a smoke-free population.

      1. “Quit Smoking Today” is not even simple advocacy; it is a command. Anybody who could claim with a straight face that QUIT SMOKING TODAY is just education is either hopelessly stupid or a shameless liar.

  8. The new “NYC” logo is totally Krautrock.

    SMOKE
    CAUSES MONOTONOUS JAMS

  9. Can we get a law that requires Olbermann and O’reilly to do their shows with a backdrop saying “Ingesting cyanide is better for your health than watching this show”?

  10. minor threadjack

    Suki needs to be more carefull

  11. 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.

    Oh, Patrick, I so look forward to that day as well when you so twist your laws that they are absolutely meaningless especially as a means to protect yourself.

  12. IMO, I think the smoking issue (along with seat belts, car cell phone usage, and legalizing drugs) should be downplayed if not avoided altogether by all far-sighted libertarians.

    1. So what do I tell my wife when we can’t get a decent meal in Manhattan? ‘Oh, sorry, hun, but I was so busy listening to neocons, fighting their fights for them that the butter and salt wars just slipped right passed me. Fuck that shit. You fight when THEY try to slip one through while no one is watching, not when William fuckhead Kristol thinks that I’m distracted from nuking Iran, you git.

    2. Can’t remember asking your opinion fuckstick.

      1. Hey Mr. x^(general butt naked + 1) / (general butt naked + 1) + C what is your point?

        Were you aware dv/da = beta * mu * pi * integral of e^x ?

        1. The point was that the author of the original comment advocates that libertarians abandon their principles in the name of far-sightedness without giving any reasoning. He stated, in web parlance, that this was his opinion. I believed this was a stupid opinion and responded thusly.

          Got yer joke, pretty good. Except the dv/da part.

          1. Supposed to be:

            ? e^(general butt naked)^2 dgeneralbuttnaked

            30 character limit on handles.

            1. butt naked, you are a fucking idiot. You can’t even use the intertubez, in addition to perpin some fake-ass erf.

              1. dude, exponent on erf is -2.

                1. Hence the “fake ass erf”. How about wannabe transcendental motherfucker?

                  1. Yonemoto, the “fake ass erf” was a red herring, I fucked up and used sarcasm to cover, sorry.

                    I have been trying this week to wrap my head around Heaviside Functions and making the new version of matlab do functions without freakingout(where do I put the ‘s, I just want a perty piktur), so I totally feel like a math faker.

          2. Couldn’t find the scene (My youtube-fu is weak).

            but, urban dictionary to the rescue:
            http://tinyurl.com/yyu4kgn

    3. No. Then we’re no better than them.

  13. There are lots of blind smokers in NYC. That there are no Braille versions of these signs just screams for an ADA lawsuit.

    1. What about smokers who are both blind and suffer from paresthesia? What about them?

  14. How are the New York Newspapers swinging on this issue? Editorially, I mean.

    1. Have they even bothered? Last time I checked, they were ALL deeply in the tank for Bloomberg. Practically fellating him.

  15. So much for “legalize and regulate.” You libertarians want to legalize drugs to “regulate” them, but if that happens you’ll be bitching about the regulations.

    1. So much for “legalize and regulate.”

      Where do you get that batshit crazy ass guano? What libertarian says ‘legalize and regulate’? For what fucking purpose? And you state it as if regulation was an ends to a means. Jesus fucking Christ, is it always about the paper pusher jobs with you Progressives? From Friedman minarchist to Rothbard anarcho-capitalist you wont find ‘legalize and regulate.’ What a flamed out turd popped out of that brainfart.

      Legalize and leave the Hell alone.

    2. Libertarians want to legalize drugs to have drugs legalized.

      Team Red/Blue/Green want to ‘regulate’ it. You know, for Teh Children (tax dollars)

  16. “There are lots of blind smokers in NYC. That there are no Braille versions of these signs just screams for an ADA lawsuit.”

    It doesn’t follow that no warnings at all would be better. We live in an imperfect world, so not every good policy can be logically consistent. Libertarians are very consistent, but consistency rarely leads to anything besides extremism.

    Political pragmatism, cost, limited options, and enforceability are some policy concerns that have little to do with consistency.

    1. You are a wack job, Sandy. That is what anal compulsive types do when they engage in politics. Hide their insanity behind the language of pragmatism.

      1. It’s late and The Sandy is just horny.

        It rubs its crotch up against freedom to make its pragmatism squirt.

        1. You are probably right. If she didn’t rub one out after that filthy mouth ‘dress down she’s a robot.

          1. It ain’t come back so far.

            Face it man, we’ve been used and abused.

  17. New troll, nice!

    “You libertarians want to legalize drugs to “regulate” them, but if that happens you’ll be bitching about the regulations.”

    Yeah, I can’t WAIT to make fun of the inevitable anti-pot ads. The surgeon general stamp? Some fun with that.

    WARNING:INHALING THIS SUBSTANCE WILL PROBABLY MAKE YOU FORGET SOMETHING AT SOME POINT, PROBABLY. WHATEVER.

    It doesn’t follow that no warnings at all would be better.

    But what if it does? Actually, On-The-Job Safety Is A Laughing Matter

  18. Fact: Smoking just ONE cigarette shaves off 10 years of your life.

    Fact: Big Tobacco is behind Al Qaeda, Teabaggers, and Japanese scat porn.

    Did you also know that cigarettes kill 800,000,000 bajillion people per month? Just in Alabama!

    It also causes AIDS and a desire to have abortions.

  19. You guys can complain all you want concerning the Waring signs. Still, the #1 product sold out of NYC Bodegas is TOBACCO PRODUCTS. The cancer-ridden lung or rotten tooth add is NOT affecting the sales in the least. People know and understand the dangers of cigarettes, Mc Donalds, Pizza, Driving a car, having a stressful job, having unprotected sex, etc. Some people do smoke occasionally. And, it’s probably harmless to these people that do.

    However, I see no harm in the Government warning people of the dangers of these things. Rather than buying cigarettes by the nickle-back from the dude selling crack, I can live with the regulation and the sign.

    These products sell themselves. And, we’ve accepted that it’s ok to sell each other poisons…if we freely choose to buy them.

    1. It isn’t the “government” doing the warning/educating/whatever. It’s the government putting a gun at business-owners’ heads and forcing them to do it.

    2. WWHHHHOOOOOOOSSSSHHHH!!!!!!

    3. To all of you “we need some regulation types” that have been trolling: READ THE EFFING POST!

      Sullum made a great case. It wasn’t that there should be NO regulation. It was that THIS PARTICULAR ACTION was illegal for 3 very specific, good reasons.

      Whatever his personal feelings, Sullum was being “pragmatic” (whatever the hell that means) and not taking an “extremist” position. All of you trolls, please kindly put your strawmen arguments up your asses. Now.

    4. “”Still, the #1 product sold out of NYC Bodegas is TOBACCO PRODUCTS. “”

      I think they sell more sodas than cigarettes. But sodas aren’t $11 a bottle. Yet.

  20. Those who want to smoke will smoke whatever you say or regulations you have. And those who want to really quit, will do so without any outside persistence. New York: a place who doesn’t care for its people!
    We help Americans move to Asia for jobs and prosperity. Learn more at http://www.pathtoasia.com

    1. Wrong. The constant public service messages have significantly contributed to people wanting to quit cigs…and I feel should go on.

      Remember, at the end of the day, we (including you libertarians), the tax payers, pick up the tab for the ‘liberty’ of smoking. We pay all collectively pay for it.

      It’s nice that we are not FORCING people to quit. We are merely suggesting that they quit for their good and ours.

      1. Tobacco is very heavily taxed. I think smokers pull their weight. And I am pretty sure that if I get sick, my insurance company, and not the taxpayers, will pick up the tab.

      2. Smokers do us a favor by dying sooner and quicker.

      3. First of all: who the eff is “we”? I personally don’t give one shit if every New Yorker who ever lived died from smoking. And I will pay for damn little of that cost.

        2. See my post above: Sullum wasn’t arguing for NO information or “regulation”; he was arguing about THE CONSTITUTIONAL LIMITS of such actions. So tell me, why don’t “we” (i.e., “you”) give a shit about the constitution?

        3. Most importantly: the only reason I have any financial stake in other people’s actions is because of a health system that was socialized and nationalized decades before The Big O took office. Why don’t you focus more on how to disentangle your lives from that of others? If you don’t, you might find that it’s all fun and games until “we” are controlling what food you eat at home and sending home warning notes from school about what you packed your kids for lunch. Or sending a note home with your daughter expressing concern about her weight (this one has happened)

        1. I agree with you.

          When we are pay for each other (via taxes) we all are in each other’s business.

          The tax payer does have the right to snoop into the business of the people on the government dole. That is, medicaid (poor) and medicare (disabled and old) can be subjected to such intrusions that you speak about TDR. Why, because the tax payer demands it.

          And, those who don’t want intrusion can pay for their own healthcare and not worry about people in their business.

  21. I can’t see why it would be anymore wrong/illegal to make a retailer of a product carry warnings in the store if it is ok to force the manufacturer of the product to carry a warning on the package…

    You’re this close to getting it . . . .

    Yes, both forcing a retailer to post signs and forcing a producer to include a label are unconstitutional. There is no real difference between the two. Forced speech is forced speech. Forced speech is bad. Forced speech is unconstitutional.

    I can’t make it any simpler than that, but I know how you living Constitution types struggle with plain English.

    1. “””Forced speech is forced speech. Forced speech is bad. Forced speech is unconstitutional.”””

      Sure, but wasn’t the warning labels part of a settlement?

    2. Labels the manufacturer put on the packs, not the signs in question.

  22. “You are a wack job, Sandy. That is what anal compulsive types do when they engage in politics. Hide their insanity behind the language of pragmatism.”

    Libertarians like all extremists hide their extremism behind a mistaken concern for consistency.

    Your the nutjob who wants to legalize drugs when virtually every economist who isn’t from the Chicago school is AGAINST legalizing drugs. Find me 5 economists not from a libertarian school of thought who think legalizing drugs is a good idea.

  23. the above should be credited to me. The response was to alan.

    1. Alan, are you Sandy? Are you arguing with yourself?!

      Anyway: about your 5 economists:

      1. Jeffrey Miron, Harvard U.
      2. Robin Room
      3. Benedikt Fischer
      4. Wayne Hall
      5. Simon Lenton
      6. Peter Reuter
      7. William F. Buckley (not an economist, but he deserves credit)
      8. state and local budget analysts in California who have supported Prop 19 because of its estimated revenue effects

      Now, according to the terms of our agreement:

      1. Explain to me why you shouldn’t listen to libertarian economists? There’s a reason they’ve won a lot of Nobel Prizes. They’re smart. You are not.

      2. Kindly STFU. Now.

      1. Oops…didn’t realize Miron was actually a full on libertarian. And, as mentioned, Buckley isn’t an economist.

        So, to replace these two on my list (which I make only to expose the idiocy of your ignorant prejudice):

        1. Simon Lenton
        2. Science and Technology Policy Committee of the British House of Commons

        Suck it.

        1. Damn it — already had Lenton on the first list! Replace him with The RAND Corporation.

          Blow me.

  24. “Libertarians want to legalize drugs to have drugs legalized.

    Team Red/Blue/Green want to ‘regulate’ it. You know, for Teh Children (tax dollars)”

    Those are the arguments your heroes John Stossel, Milton Friedman, and Jeffrey Miron among others make. I never said
    ALL libertarians make that argument. Why is it such an abomination to ban drugs? You don’t have a right to use your body in whatever way you wish (e.g.,you don’t have a right to sex with someone when you have 5% chance of transmitting an STD you know yourself to have without telling the other person). Not all freedoms are equal.

    1. That analogy is completely stupid, and you know it. Doing drugs harms nobody but the user, unlike STDs, fuckwit.

      1. +1

        Please, go study and train and then come back when you’re ready for the grown up table.

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