On Friday, June 17, a lawsuit was filed by NATO, R.J. Reynolds Tobacco Co., Philip Morris USA Inc., and Lorillard Tobacco Co. in U.S. Federal District Court in Massachusetts seeking a preliminary and permanent injunction against an ordinance adopted on May 10, 2011 by the Worcester, Mass. city council, which would virtually ban outdoor and indoor tobacco advertising. A preliminary injunction hearing in federal court on the matter is scheduled for Sept. 8.
Total Ad Ban
The ordinance prohibits any person from “display[ing] any advertising that promotes or encourages the sale or use of cigarettes. . .or other tobacco products in any location where any such advertising can be viewed from any street or park shown on the Official Map of the city or from any property containing a public or private school or property containing an educational institution.”
That is, the ordinance prohibits (1) all outdoor tobacco advertising, and (2) all indoor tobacco advertisements displayed in a retail store that can be viewed from the street (e.g., through a window). It is important to note that this ordinance bans advertisements for all tobacco products, not just cigarettes.
While the ordinance was scheduled to take effect on June 24, the parties to the lawsuit agreed to postpone enforcement of the advertising ban portion of the ordinance until two weeks after the federal district court issues its ruling on a motion for a preliminary injunction. This means that retailers can continue to advertise tobacco products until the court has an opportunity to hear the motion for a preliminary injunction and issue a ruling.
First Amendment Issue
The NATO lawsuit seeks an order declaring that the ordinance violates the First Amendment of the U.S. Constitution that protects free speech, including commercial speech in the form of product advertising. In 2001, a U.S. Supreme Court decision struck down a Massachusetts state law that prohibited outdoor advertising of tobacco products within 1,000 feet of a school or playground. In this case titled Lorillard Tobacco Co. v. Reilly, the U.S. Supreme Court held that "so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information."
Eight years after the 2001 Lorillard decision, Congress passed the Family Smoking Prevention and Tobacco Control Act that authorized the U.S. Food and Drug Administration to regulate cigarettes, roll-your-own tobacco, and smokeless tobacco. Under Section 916 of the FDA tobacco regulatory law, local governments and states were given the authority to adopt “a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age.” This section of the FDA regulatory law was relied on, in part, by the Worcester city council to adopt the tobacco advertising ordinance.
The Worcester ordinance is the most restrictive local tobacco advertising ban in the country and is even more restrictive than the Massachusetts law which prohibited tobacco advertising within 1,000 feet of a school, park or playground.
As a part of the FDA tobacco regulatory law, Congress required the FDA to issue a new rule to regulate outdoor tobacco advertising, but mandated that the final rule must be “appropriate in light of governing First Amendment case law, including the decision…in Lorillard Tobacco Co. v. Reilly….” In response to this congressional mandate, the FDA issued a request in March of 2010 seeking public comments on ideas to regulate outdoor tobacco advertising and acknowledged that any advertising regulation must be more narrow than a complete ban in order to be constitutional.
Despite the U.S. Supreme Court’s decision in the Lorillard case overturning a Massachusetts statewide advertising ban and the FDA’s acknowledgement that the Lorillard type advertising ban contained in the 1996 agency rule would not pass constitutional rigor, the Worcester city council adopted an ordinance that is even broader in scope than the restriction struck down in the Lorillard case and the original FDA rule advertising ban.
This overreaching ban on outdoor and in-store advertising passed by the Worcester city council fails to adhere to constitutional First Amendment free speech standards. The right to advertise is of paramount importance to retailers and the protection of that right by recourse to the judicial system is necessary when an advertising restriction infringes and impairs that right. With NATO having retail members with stores located in Worcester, Mass., and the importance of this issue to tobacco retailers nationwide, NATO filed the lawsuit to reaffirm the right to advertise legal tobacco products.