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).
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
A violation of the right to the enjoyment of the highest attainable standard of health. Public health advocates may claim the public’s right to health is violated by weak tobacco control measures, industry tactics, or an organization’s or smokers’ actions.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
Any violation of a law designed to ensure fair trade, competition, or the free flow of truthful information in the marketplace. For example, a government may require businesses to disclose detailed information about products—particularly in areas where safety or public health is an issue.
The subject matter of the case should be dealt with at a state level or national level.
Type of Tobacco Product
None
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"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."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
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.