December 29, 2010
Judge Rejects City Law on Antismoking Posters
By ANAHAD O’CONNOR

A federal judge on Wednesday struck down a New York City law that would have forced all bodegas and convenience stores to post gruesome images of diseased lungs, brains and teeth in the shops to discourage people from buying cigarettes.

In a 13-page ruling, Judge Jed S. Rakoff of United States District Court in Manhattan wrote that while the law was well intentioned, it violated federal law since only the federal government had the authority to regulate cigarette warnings and advertisements.

“Even merchants of morbidity are entitled to the full protection of the law,” Judge Rakoff wrote, “for our sake as well as theirs.”

The decision puts an end — at least for now— to the city’s plan to have the placards displayed beside cash registers in more than 11,000 establishments across the city. While awaiting Judge Rakoff’s ruling, the city had agreed that it would postpone enforcement of its rule until this weekend.

Lawyers with the city’s Law Department said they planned to appeal the decision.

The city’s health department created the rule in late 2009. In June, the nation’s three biggest tobacco companies — Philip Morris, Lorillard and R. J. Reynolds — joined forces with the New York State Association of Convenience Stores in filing a lawsuit challenging the rule. In their suit, the tobacco companies and convenience stores said the rule violated the First Amendment rights of retailers who disagreed with the message, and breached a law stating that only the federal government can regulate cigarette warnings and advertising.

In his ruling, Judge Rakoff said that health officials had good reason to view smoking as a “public health threat,” citing smoking as the leading cause of preventable death in New York City and the rest of the country. “Within New York City, roughly 7,500 people die from smoking annually — more than from AIDS, homicide and suicide combined,” he wrote.

But Judge Rakoff also cited a federal law enacted in 1965, the Labeling Act, which gave the federal government exclusive authority over cigarette warnings. That law, he wrote, seeks to balance public and commercial interests: the federal government protects the public, but also sets clear and uniform cigarette regulations that protect “commerce and the national economy.”

In his ruling, Judge Rakoff pointed out that the Labeling Act also contained a provision forbidding any state laws from conflicting with the federal government’s policies on cigarette warnings and advertisements. That, he concluded, makes the city’s placard policy illegal.

Floyd Abrams, a lawyer who represented the convenience store association, said that even though the city had agreed not to enforce the rule until this weekend, many retail shops had put up the graphic placards anyway. He said he was “very pleased” with Judge Rakoff’s decision.

“It will allow the retail stores in New York to be freed of the obligation to put signs up urging customers not to buy their lawful products,” he said.

In a statement, the health department said that the city “strongly disagrees” with the ruling and that tobacco companies “trying to prevent these messages from being seen should be ashamed of themselves.”

“The city’s warning signs portray completely factual messages about the dangers of smoking,” the statement added. “They do so at the exact moment when smokers are making decisions about purchasing tobacco. We believe it is the city’s responsibility to help smokers quit and to protect children from the harmful effects of tobacco smoke.”

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