NY Graphic Warnings Case

April 10, 2013

The New York City Board of Health adopted measures requiring visible and vivid warnings about the dangers of tobacco use at the point of sale of tobacco products, and calling on consumers to quit smoking immediately with contact information on cessation services.

Tobacco retailers argue that being required to post graphic warnings and cessation information violates their First Amendment right to free speech. The US Supreme Court has developed a four-prong test in deciding whether restrictions on commercial speech withstand a constitutional challenge. The four prongs are as follows: 1) commercial speech that concerns unlawful activity or is false can be regulated without violating the First Amendment. If the speech is not false or misleading, it can only be regulated if 2) the government has a substantial interest in regulating the speech; 3) the regulation directly advances the government's interest; and 4) the regulation is not more extensive than necessary - i.e. is "narrowly tailored." Thus, the legal validity of the restriction can depend greatly on the facts and evidence associated with the restriction.

In order to assist New York City in defending the graphic warnings requirements, we filed a brief along with American Legacy Foundation and other health groups providing evidence of the need for the anti-smoking signs. Specifically, we argued that NYC narrowly tailored its compelling interest in alerting consumers to the serious health dangers of tobacco use. We cited empirical data supporting the resolution, including studies showing: the use of a graphic on anti-smoking signs significantly increases their effectiveness, the size of the signs is necessary to achieve their purpose, placing anti-smoking signs at the point of sale maximizes their effectiveness, and that the required posting on cessation directly advances the goals of the resolution.

In late 2010, US Judge Rakoff invalidated the requirements on preemption grounds, saying the Federal Cigarette Labeling Act (which was first enacted in 1965 and has been amended several times since) precluded the City from requiring such warnings. The case was appealed to the Second Circuit. Because of the overwhelming importance of the issues involved in this case, ACS CAN filed a brief to uphold the warnings under the First Amendment, while the ACS Eastern Division filed to uphold the rights of local government to promulgate such regulation without being preempted by federal law.

On appeal, unfortunately the Second Circuit ruled that the NYC requirement that cigarette retailers display graphic warnings posters is preempted by the Federal Cigarette Labeling and Advertising Act because it is a requirement "with respect to the promotion of cigarettes." According to the court, the City "cannot require retailers to post warning signs adjacent to cigarette displays, because doing so would affect the content of the retailers and manufacturers' promotional efforts." While very broadly construing the meaning of "promotion," the court does recognize a "safe harbor" for laws regulating the time, place, or manner of promotional activity. It provides the example of a requirement that cigarettes must be displayed only behind the counter or in a locked container. Although this was not at issue in the case, the court also points out that cities and states can certainly mount education campaigns regarding tobacco and to counter industry messages, although apparently not at the point of sale.

Because the court held that the City's requirement was preempted, it did not reach the tobacco companies' first amendment claims.