Second Circuit finds municipal requirement that tobacco retailers post graphic warnings to be preempted by federal law.

The Issue: Cigarette manufacturers, retailers, and trade associations challenged a New York City Board of Health resolution requiring tobacco retailers to post graphic depictions of the adverse health effects of tobacco use on the grounds that it was preempted by federal law, violated the First Amendment rights of retailers by compelling their speech, and exceeded the authority of the Board of Health.

Why It Matters: Smoking is the leading cause of preventable death in the United States; consequently, the importance of effective warnings to potential smokers is self-evident. This case also could have set precedent affecting all sorts of government-mandated disclosures, ranging from warnings about the presence of toxic materials in consumer products to ingredient disclosures on food packages to securities registration requirements. The case implicated two legal issues of great importance to government’s ability to regulate business to protect the public. First, it exemplified a long-standing trend of businesses arguing – all too often successfully – that federal regulation of industry violates companies’ constitutional rights and that state and local regulations are preempted by federal law. Second, the decision could have led to significant development of the law of government speech, a relatively new First Amendment doctrine that courts have hitherto applied somewhat arbitrarily, threatening both legitimate First Amendment claims and legitimate government regulation.

Public Good’s Contribution: Public Good authored a brief in the Second Circuit on behalf of a number of local governments and health departments and a public health non-profit, addressing the pre-emption and First Amendment issues. Public Good argued that the Resolution was not preempted because, even if it were found to be a regulation of cigarette promotion – which would ordinarily be pre-empted – it would fall within a 2009 Congressional amendment which declared that localities may regulate the time, place, and manner (though not the content) of cigarette promotions. The First Amendment was not violated, our brief argued, because the required signs were clearly and recognizably government speech and not compelled speech by retailers.

Amici Represented by Public Good: Public Good’s brief was filed on behalf of Public Health Law & Policy, and the following local governments and health departments: County of Los Angeles, California, Department of Public Health; the City of Philadelphia, Pennsylvania; the Boston Public Health Commission; Public Health – Seattle & King County, Washington; the County of Santa Clara, California; and the City and County of San Francisco, California.

Outcome: The Second Circuit affirmed the District Court’s decision that the Resolution regulated the content of cigarette promotion and was therefore preempted by federal law.
Consequently, the court did not reach the First Amendment issue.

757 F.Supp.2d 407 (S.D.N.Y. 2010), affirmed, 685 F.3d 174 (2d Cir. 2012).

Download our brief filed in the 23-34 94th St. Grocery Corp. v. New York City Bd. of Health case.