National Ass’n of Tobacco Outlets, Inc. v. City of Providence

Restricting the sale of tobacco products at discounted prices does not violate the free speech rights of tobacco sellers.

The Issue: In order to reduce tobacco consumption by minors, Providence enacted an ordinance prohibiting merchants from accepting discount coupons and multiple-pack discounts in tobacco sales, and an ordinance prohibiting the sale of various flavored tobacco products. Tobacco manufacturers, distributors, and retailers sued to enjoin enforcement of the ordinances, arguing that they violated tobacco sellers’ free speech rights, that they were pre-empted by federal and state law, and that their enactment was procedurally flawed.

Why It Matters: Discount pricing is widely used to attract under-age and other young people to smoking, and is also used to thwart the consumption-reducing impacts of minimum price laws. Most smokers become addicted by age 18; nearly half of minors who become regular smokers will die prematurely from causes related to tobacco use. Therefore, there is a vital public health interest in measures making it more difficult for tobacco companies to market to minors. In addition, the tobacco companies’ challenge here is part of a widespread litigation strategy across different industries that has met with all too much success in recent years. Relying on the fact that almost all business activity is conducted in some measure through speech and writing, this strategy seeks to depict virtually any regulation of business – whether to protect consumers, employees, the environment, or the general public – as a restriction on expressive interests. Public Good consistently opposes such distortion of the First Amendment to ends utterly foreign to the protection of dissent which was its original purpose.

Public Good’s Contribution: Public Good authored a brief in support of the City of Providence in District Court, focusing on the First Amendment challenge to the Price Ordinance. Public Good’s brief explained that the Price Ordinance was a straightforward regulation of commercial activity and not a restriction on expression. When the tobacco industry appealed, Public Good authored another brief in the First Circuit on the First Amendment issues in the case.

Amici Represented by Public Good: Public Good’s brief was filed on behalf of the Tobacco Control Legal Consortium, one of the nation’s leading providers of legal assistance on issues related to tobacco and public health.

Outcome: The district court upheld both ordinances in their entirety, with the exception of a few details of the Flavor Ordinance, against all challenges, essentially following the reasoning of Public Good’s brief with respect to the First Amendment challenge to the Price Ordinance. Plaintiffs filed an appeal, with respect to the Price Ordinance only, in the First Circuit on behalf of the tobacco industry.  The First Circuit panel unanimously upheld the district court decision, again following the First Amendment reasoning of Public Good’s brief.

2012 WL 6128707 (D. R.I. 2012), and judgment affirmed, 731 F.3d 71 (1st Cir. 2013)

Download our brief filed in the First Circuit in National Ass’n of Tobacco Outlets, Inc. v. City of Providence.