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National Association of Tobacco Outlets, Inc., et al. v. City of Providence, Rhode Island, et al.

Tobacco companies sued the City of Providence, Rhode Island challenging two different local ordinances: (1) restricting the sale of flavored tobacco products (other than cigarettes) except in a smoking bar; and (2) prohibiting retailers from accepting or redeeming coupons and certain multipack discounts (e.g., buy two, get one free). The Appeals Court upheld the lower court’s decision and found that both ordinances are legal. The “Flavor Ordinance” is not preempted by the Family Smoking Prevention and Tobacco Control Act. The “Price Ordinance” does not violate the First Amendment and is not preempted by the Federal Cigarette Labeling and Advertising Act. Additionally, neither ordinance is preempted by Rhode Island state law.

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National Association of Tobacco Outlets, Inc., et al. v. City of Providence, et al., No. 13-1053, ___ F.3d ___ (1st Cir. 2013).

  • United States
  • Sep 30, 2013
  • U.S. Court of Appeals for the First Circuit
View Case History

Parties

Plaintiff

  • American Snuff Company
  • Cigar Association of America, Inc.
  • John Middleton Company
  • Lorillard Tobacco Company
  • National Association of Tobacco Outlets, Inc.
  • Philip Morris USA, Inc.
  • R.J. Reynolds Tobacco Company
  • U.S. Smokeless Tobacco Brands, Inc.
  • U.S. Smokeless Tobacco Manufacturing Company LLC

Defendant

  • Angel Taveras, Mayor of Providence
  • City of Providence, Rhode Island
  • Michael A. Solomon, Providence City Council President
  • Providence Board of Licenses
  • Providence Police Department
  • Steven M. Pare, Commisioner of Public Safety for the City of Providence

Legislation Cited

Family Smoking Prevention and Tobacco Control Act, Public Law 111-31, June 22, 2009

Federal Cigarette Labeling and Advertising Act (as amended), 15 USC §§ 1331 - 1341

First Amendment

Rhode Island Constitution

Related Documents

None

Type of Litigation

Challenge to Government Policies Relating to Tobacco Control/Public Health
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.

Tobacco Control Topics

Price and Tax Measures
Tax or price measures, including tax- and duty-free regulation. (See FCTC Art. 6)
Contents and Disclosures Measures
Measures for testing, measuring, regulating, or disclosing the contents and emissions of tobacco products. (See FCTC Arts. 9 and 10)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)
Sales to or by Minors
Measures restricting tobacco sales to or by minors, as well as other retail restrictions relating to point-of-sale, candy and toys resembling tobacco products, vending machines, or free distribution. (See FCTC Art. 16)

Substantive Issues

Right to Commerce
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Right to Freedom of Expression
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
Right to Access to Information
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Preemption
The subject matter of the case should be dealt with at a state level or national level.

Type of Tobacco Product

None

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