23-24 94th St. Grocery Corp. v. New York City Board of Health: Does the Use of Graphic Images Overly Burden Tobacco Companies?

Matthea Ross, Albany Government Law Review Member

Introduction

A case was recently decided in the United States District Court as to whether a New York City health regulation that uses graphic images to depict the dangers of smoking is valid when it creates a burden on the ability of cigarette companies and retailers to promote their products.[1] The regulation was created in late 2009 in response to the health dangers related to the use of tobacco.[2] The regulation was designed to inform purchasers of the dangers of using tobacco products through the use of graphic images.[3] In June of 2010, three cigarette companies sued New York City, claiming that the regulation was preempted by federal law and therefore could not be enforced.[4] On December 29, 2010, the court decided that the law did create a burden on the cigarette companies and retailers to promote cigarettes and that these burdens could only be imposed by the federal government.[5] Even though there are obvious dangers associated with smoking and the New York City law is a commendable effort to counter those dangers, the court nevertheless found that the federal law as codified in the Federal Cigarette Labeling and Advertising Act (the “Labeling Act”) preempted the New York City law, thereby making it unenforceable.[6]

Reasons for the New York City Law: The Dangers of Smoking

Smoking is the leading cause of preventable death, not only in New York City, but in the entire United States.[7] It is estimated that each year 443,000 people in the United States “die prematurely from smoking or exposure to secondhand smoke.”[8] About 7,500 people die annually from smoking in New York City alone.[9] This is “more than from AIDS, homicide and suicide combined.”[10] Even considering the risks of tobacco use, about forty-six million adults in the United States continue to smoke cigarettes.[11]

There are also dangers from exposure to secondhand smoke as well.  People who do not smoke are regularly exposed to secondhand smoke. [12] This includes both adults and children.[13] The exposure to secondhand smoke, no matter how brief, can be dangerous because the nonsmoker is inhaling the same substances as the smoker.[14] Smoking not only affects people who smoke but those around them as well.  This makes smoking an issue that affects everybody.

New York City’s Response

The New York City regulation is an attempt to protect everybody from the effects of smoking.  The New York City Board of Health implemented the regulation as a way to “alert . . . purchasers, at the very point of purchase, to the grave danger of tobacco.”[15] Under Article 181.19 of the New York City Health Code, it was required that retailers that sell tobacco products in New York City display “smoking cessation signs.”[16] Specifically, it was mandated that there be either a small sign placed on or near the cash register or a large sign placed at each display of tobacco products.[17]

Three graphic signs were designed: a brain damaged by stroke, a decaying tooth and gums, and a diseased lung. [18] Each was accompanied by information about the dangers of smoking.[19] The Legislature reasoned that “the signs ‘portray[ing] completely factual messages about the dangers of smoking and advise that quitting is the best way for smokers to avoid contracting smoking-related illness’ at the ‘exact moment’ smokers are making purchasing decisions”[20] that people may be deterred from making the purchase or using the information provided to seek help in quitting.  People who smoke may be encouraged to quit and those who are not smokers may be discouraged from starting.  The city felt that it was their responsibility to warn smokers of the dangers, help smokers quit, as well as attempt to protect children from secondhand tobacco smoke.[21] They hoped to do this by providing factual messages about smoking through the use of the signs.[22]

However, cigarette manufacturers alleged that “the city’s graphic health warning signs force[d] them to carry messages they wouldn’t carry at the point of sale.”[23] In June 2010, Philip Morris, Lorillard, and R. J. Reynolds, the three biggest tobacco companies in the United States, along with the New York State Association of Convenience Stores, filed a lawsuit to challenge the regulation.[24] One of their claims was that there was a federal law that says “that only the federal government can regulate cigarette warnings and advertising.”[25] Once the lawsuit was commenced, enforcement of the law was postponed by mutual agreement between the parties until January 1, 2011.[26]

The Decision

On December 29, 2010, the Southern District of New York “struck down [the] New York City law.”[27] Judge Rakoff, in his opinion, stated that “[e]ven merchants of morbidity are entitled to the full protection of the law, for our sakes as well as theirs.”[28] While the court did not sympathize with the tobacco companies, it still found that the city’s regulation interfered with the federal law.  The Court held that the New York City regulation was preempted by the Labeling Act.[29] The Labeling Act states that there can be “[n]o requirement or prohibition based on smoking and health . . . imposed under State law with respect to the advertising or promotion of . . . cigarettes.”[30] The federal government has “exclusive authority over cigarette warnings,”[31] therefore, only the federal government can regulate cigarette warnings and advertisements.  Since the New York City regulation, in the court’s opinion, attempted to regulate the advertising of cigarettes by requiring the signs be placed at the point of sale, it violated federal law since the court concluded that “point of-sale displays constitute cigarette ‘promotion’ under the Labeling Act.”[32]

Under the Labeling Act “the federal government protects the public, but also sets clear and uniform cigarette regulations that protect ‘commerce and the national economy.”[33] In order to do this, the federal government has forbidden states from passing laws that conflict with the policies of the federal government with regards to cigarette warnings and advertisements.[34]

Conclusion

While Judge Rackoff did not appear sympathetic toward the cigarette companies,[35] the Court nevertheless decided in favor of the cigarette companies.  Despite this decision, there appears to be support for the law by the public.  For example, some stores in New York City appear to approve of the law.  These stores have put up the graphic signs even though they are not obligated to do so under the court’s ruling.[36] Despite the district court’s ruling, New York City continues to see it as their responsibility to help people realize the dangers of smoking and potentially reduce the use of tobacco products.  In order to accomplish this, the City plans to appeal the decision.


[1] 23-24 94th St. Grocery Corp. v. N.Y. City Bd. of Health, No. 10 Civ. 4392, 2010 WL 5392876, at *1 (S.D.N.Y. Dec. 29, 2010).

[2] Anahad O’Connor, Judge Rejects City Law on Antismoking Posters, N.Y. Times, Dec. 29, 2010, at A25, available at http://www.nytimes.com/2010/12/30/nyregion/30smoking.html?_r=1&src=twrhp.

[3] 23-24 94th St. Grocery Corp., 2010 WL 5392876, at *1.

[4] Patricia Hurtado, Philip Morris, Reynolds Sue New York for Smoking Ads, Bloomberg Businessweek, June 3, 2010, http://www.businessweek.com/news/2010-06-03/philip-morris-reynolds-sue-new-york-for-smoking-ads-update2-.html.

[5] 23-24 94th St. Grocery Corp., 2010 WL 5392876, at *1.

[6] Id. at *5.

[7] O’Connor, supra note 2; see also National Center for Disease Prevention ans Health Promotion,  Tobacco Use: Targeting the Nation’s Leading Killer, 2 (2010) [herinafter Tobacco Use], http://www.cdc.gov/chronicdisease/resources/publications/aag/pdf/2010/tobacco_2010.pdf (last visited Jan. 29, 1010).

[9] O’Connor, supra note 2, at A25.

[10] Id.

[11] Tobacco Use, supra note 7, at 2.

[12] Id.

[13] Id.

[14] Id.

[15] 23-24 94th St. Grocery Corp. v. N.Y. City Bd. of Health, No. 10 Civ. 4392, 2010 WL 5392876, at *1 (S.D.N.Y. Dec. 29, 2010).

[16] Id.

[17] Id. at *2.

[18] Id.

[19] Id.

[20] Katherine Hobson, NYC Will Appeal Judge’s Decision on Anti-Smoking Posters, Wall St. J. Health Blog (Dec. 30, 2010, 10:43 EST), http://blogs.wsj.com/health/2010/12/30/nyc-will-appeal-judges-decision-on-anti-smoking-posters/.

[21] O’Connor, supra note 2, at A25.

[22] Id.

[23] Hurtado, supra note 4.

[24] O’Connor, supra note 2, at A25.

[25] Id.

[26] Id.; 23-24 94th St. Grocery Corp. v. N.Y. City Bd. of Health, No. 10 Civ. 4392, 2010 WL 5392876, at *1 (S.D.N.Y. Dec. 29, 2010).

[27] O’Connor, supra note 2, at A25.

[28] 23-24 94th St. Grocery Corp., 2010 WL 5392876, at *1.

[29] Id. at *2.

[30] Id. at *2 (citing 15 U.S.C. § 1334).

[31] O’Connor, supra note 2, at A25.

[32] Id.; 23-24 94th St. Grocery Corp., 2010 WL 5392876, at *4.

[33] O’Connor, supra note 2, at A25.

[34] Id.

[35] Abigail Field, A Judge Snuffs out New York City’s Gruesome Antismoking Ads, Daily Finance (Dec. 30, 2010, 12:25 PM), http://www.dailyfinance.com/story/new-york-anti-smoking-ads-rule-snuffed-out-by-judge/19781506/.

[36] O’Connor, supra note 2, at A25.

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