TOBACCO CONTROL LAWS

National Association of Tobacco Outlets v. City of New York

Tobacco companies and retailers sued New York City challenging an ordinance that prohibits the sale of tobacco below the stated price, such as through coupons or two-for-one offers. The court upheld the ordinance, ruling that it does not violate the tobacco companies’ or retailers’ free speech rights under the First Amendment and that it is not preempted by state or federal law. The court found that ordinance does not violate the First Amendment because it regulates an economic transaction – the sale of tobacco products below the listed price – not speech. Additionally, the ordinance is not preempted by the Federal Cigarette Labeling and Advertising Act because it is a lawful restriction on the manner in which tobacco manufacturers and retailers advertise and promote their products and it does not regulate the content of cigarette advertising related to health warnings. Finally, the New York City ordinance is not preempted by state law because the state law relates only to the distribution of free tobacco products, not partially discounted tobacco products.

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Nat'l Ass'n of Tobacco Outlets, Inc. v. City of N.Y., 14 Civ. 00577 (S.D.N.Y., 2014)

  • United States
  • Jun 18, 2014
  • United States District Court for the Southern District of New York

Parties

Plaintiff

  • American Snuff Company
  • Bodega Association of the United States, Inc.
  • John Middleton Company
  • Lorillard Tobacco Company
  • National Association of Tobacco Outlets, Inc.
  • New York Association Of Convenience Stores
  • Philip Morris USA Inc.
  • R.J. Reynolds Tobacco Co., Inc.
  • U.S. Smokeless Tobacco Brands, Inc.

Defendant

  • Alba Pico in his Official Capacity as First Deputy Commissioner of the New York City Department of Consumer Affairs
  • Beth E. Goldman in her Official Capacity as Commissioner of the New York City Department of Finance
  • Bill De Blasio in his Official Capacity as Mayor of New York City
  • City of New York
  • Dr. Mary Bassett in her Official Capacity as Commissioner of the New York City Department of Health and Mental Hygiene
  • New York City Council
  • New York City Department of Consumer Affairs
  • New York City Department of Finance
  • New York Department of Health and Mental Hygiene

Legislation Cited

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

New York City Local Law 97 of 2013

New York State Public Health Law, Article-F-Regulation of Tobacco Products, Herbal Cigarettes and Smoking Paraphernalia; Distribution to Minors, section 1399-bb

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)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)

Substantive Issues

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.
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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