Court blocks local cigarette warning requirements

In a defeat for anti-smoking advocates, a U.S. appeals court has ruled that cities cannot force tobacco retailers to post graphic warnings next to cigarette displays.

The decision blocks a 2009 rule adopted by the New York City Dept. of Health and Mental Hygiene that required retailers to display one of three signs near cigarette racks. The signs depicted an x-ray image of a cancerous lung, a photograph of a decaying tooth and an image of a damaged brain resulting from a stroke.

The city health department said it was disappointed by the court’s ruling, stressing the images were meant to educate smokers.

“The city’s warning signs depicted the grisly toll of smoking and provided helpful information about how to quit at a place where smokers were most likely to see it,” the department said in a statement. The ruling “is likely to reduce the number of smokers who quit.”

Philip Morris USA, a plaintiff in the lawsuit, said the court correctly banned enforcement of the rule.

“We are pleased that the 2nd Circuit reaffirmed that federal law bars state and local governments from regulating the content of cigarette advertising and promotion,” said Murray Garnick, a spokesman for Philip Morris. “This suit has always been about who has the authority to regulate the content of cigarette warnings. That is a power reserved to the federal government without interference or additional efforts by state and local authorities.”

Philip Morris was among several cigarette manufacturers that sued the city in 2010 over the signs. Included as plaintiffs were two cigarette retailers and two trade associations. The plaintiffs said the rule violated their First Amendment rights under the U.S. Constitution. A district court in December 2010 ruled in favor of the plaintiffs, deeming the rule null and void, and the health department appealed.

In its July 10 ruling, the 2nd U.S. Circuit Court of Appeals said federal labeling requirements trump the city’s requirement. Judges noted that the Federal Cigarette Labeling and Advertising Act already mandates the content of warnings that must appear on cigarette packages and in advertisements. A provision in the federal law limits the extent to which states may regulate advertising of cigarettes and prohibits states from requiring additional signage, the court said.

New York City’s rule “would require additional graphic warnings to be placed in close proximity to the federally mandated ones. Such competing and potentially duplicative warnings are not contemplated by the federal statutory scheme,” the appeals court said. Because the court ruled the city’s requirement was preempted, it did not address whether the graphic warnings violated the plaintiffs’ First Amendment rights.

Judges added that states and localities remain free to engage in anti-smoking campaigns using their own resources.

“Our holding today should not be read to curtail in any way state and locally funded efforts to further educate consumers and counter cigarette advertising and promotion,” the court said.

Lawsuit over federal statute pending

The New York decision is the latest in an ongoing battle among tobacco manufacturers and public health officials over displaying graphic warnings.

A similar challenge is being weighed by the U.S. Court of Appeals for the D.C. Circuit. In that case, tobacco companies are fighting a Food and Drug Administration rule requiring graphic images to appear on cigarette packages. The images include pictures of a man smoking through a tracheotomy hole and a dead person with a surgery-scarred chest.

Implementation of the warnings was delayed after the U.S. District Court for the District of Columbia declared the warnings unconstitutional on Feb. 29. The U.S. Court of Appeals for the D.C. Circuit heard oral arguments April 10. At this article’s deadline, the appeals court had not ruled on the case. The American Medical Association joined other health organizations in submitting three friend-of-the-court briefs in support of the warnings.

Other courts have issued different opinions as to whether the FDA’s graphic images are constitutional. The 6th U.S. Circuit Court of Appeals on March 19 ruled the images valid, saying they convey the health consequences of smoking so that consumers have truthful information. The U.S. District Court for the Western District of Kentucky in 2010 also ruled the graphic images were legal.