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]

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