23-34 94th St. Grocery Corp. v. New York City Board of Health

Tobacco manufacturers, retailers and trade associations sued the New York City Board of Health and other New York City administrative agencies, challenging Article 181.19 of the New York City Health Code which requires the display of certain “smoking cessation signs” at all places within New York City where tobacco products are sold.  The law was enacted to reduce and prevent smoking in New York City.  The plaintiffs argue that the law 1) is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§ 1331–1341 (the “Labeling Act”); (2) violates the free speech provisions of the Federal and New York State Constitutions; and (3) exceeds the authority of the Board of Health under the New York State Constitution's separation of powers doctrine.  The Labeling Act includes a preemption provision which states, “No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter.”   The Court found that Article 181.19 was preempted by the Labeling Act and thus did not reach the other grounds in the matter.

23-34 94th St. Grocery Corp., et al. v. New York City Board of Health, et al., 757 F.Supp. 2d 407 (S.D.N.Y. 2010).

  • United States
  • Dec 29, 2010
  • United States District Court, S.D. New York
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Parties

Plaintiff

  • 23-34 94th St. Grocery Corp.
  • Kissena Blvd. Convenience Store, Inc.
  • Lorillard Tobacco Company
  • New York Association Of Convenience Stores
  • New York State Association of Service Stations and Repair Shops, Inc.
  • Philip Morris USA Inc.
  • R.J. Reynolds Tobacco Co., Inc.,

Defendant

  • Dr. Thomas Farley, in his Official Capacity as Commissioner of the New York City Department of Health and Mental Hygiene
  • Jonathan Mintz, in his official capacity as Commissioner of the New York City Department of Consumer Affairs
  • New York City Board of Health
  • New York City Department of Consumer Affairs
  • New York City Department of Health and Mental Hygiene

Legislation Cited

Federal Cigarette Labeling and Advertising Act

New York City Health Code

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Here, the provision of Article 181.19 calling for tobacco retailers to post a large anti-smoking sign wherever “tobacco products are displayed,” Article 181.19(c)(2), plainly imposes conditions on the promotion of cigarettes—indeed, in a far more direct way then the New York City regulation (requiring taxis to display one public health message for every four tobacco advertisements) that was found to be preempted in Vango Media. Although the Article's alternate mechanism for compliance—posting a sign near the cash register—does not quite so directly impose a condition on the promotion of cigarettes, a clear nexus still exists, since a confluence of regulatory and commercial factors lead tobacco retailers to display tobacco products near the cash registers at the point-of-sale. This is because, under New York State law, tobacco retailers are required to “store [ ] ... tobacco products (a) behind a counter in an area accessible only to the personnel of such business, or (b) in a locked container.” N.Y. Public Health Law § 1399–cc(7) (2003). To comply with this requirement, tobacco retailers, in the overwhelming majority of instances, display their cigarettes in close proximity to the cash register, since this is an area “behind a counter in an area accessible only to the personnel of such business.” See Affidavit of Ralph Bombardiere, dated May 25, 2010, 6; Affidavit of Manny Infante, dated May 28, 2010, 6. Indeed, since an acknowledged purpose of Article 181.19 is to counter the effect of cigarette promotion, the very purpose of the Article's requirement of posting an anti-smoking sign near the cash register is an implicit recognition that this is near where the cigarettes are displayed. See Declaration of Kenneth Michael Cummings, dated October 8, 2010, 16 (noting, on behalf of the City, that the purpose of Article 181.19 is to neutralize the impact of cigarette promotional activity at the point of sale). The Court therefore 23–34 94th St. Grocery Corp.. v. N.Y. City Bd. of Health, 757 F.Supp.2d 407 (S.D.N.Y., 2010) concludes that the Article's requirements that anti-smoking signs be posted either where tobacco products are displayed or at the (adjoining) cash register in either case imposes conditions on plaintiffs' promotion of tobacco products."
"Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs. 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 because it imposes burdens on the promotion of cigarettes that only the federal government may prescribe."