New York City fights to keep graphic tobacco warnings

Officials are appealing a decision that federal law preempts a city law requiring retailers to post images of lungs and brains damaged by nicotine use.

By Carolyne Krupa — Posted Jan. 20, 2011

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New York City is appealing a federal court ruling that struck down a city law that would have required tobacco sellers to post graphic images of diseased teeth and gums, lungs and brains to deter people from buying cigarettes and other tobacco products.

Judge Jed S. Rakoff of the U.S. District Court of the Southern District of New York ruled on Dec. 29, 2010, that federal law preempted the city law.

"Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs," Rakoff wrote in his ruling. "Here, as a result, an otherwise laudable New York City health regulation designed to alert cigarette purchasers, at the very point of purchase, to the grave dangers of tobacco use must be declared invalid."

Only the federal government has the authority to impose such burdens on tobacco labeling and advertising, he said.

Rakoff's decision came in response to a lawsuit filed in June 2010 by tobacco retailers and major tobacco manufacturers Philip Morris USA Inc., R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co.

The city filed its notice of appeal Jan. 4.

"We are disappointed that this important health initiative was rejected by the court," said Nicholas Ciappetta, assistant corporation counsel with the New York City Law Dept.'s administrative law division.

The New York City Dept. of Health and Mental Hygiene issued a statement saying it is the city's responsibility to help motivate smokers to quit.

"In spite of our success in combating smoking in New York City, tobacco remains the city's No. 1 killer," the department said. "The city's warning signs portray completely factual messages about the dangers of smoking and advise that quitting is the best way for smokers to avoid contracting smoking-related illnesses."

In addition to the images, the signs would have provided a phone number to a smoking-cessation service.

Philip Morris USA said the company already communicates the dangers of tobacco use in a number of ways.

"We are pleased that the court recognized that only the federal government has the power to control the content of cigarette warnings," said company spokesman Murray Garnick, senior vice president and associate general counsel with Altria Client Services.

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