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

New York City required all tobacco retailers to display signs bearing graphic images showing adverse health effects of smoking. Retailers challenged the city's resolution. The lower court held that the resolution is preempted by federal labeling laws. In this decision, the appeals court affirmed, citing the Federal Cigarette Labeling and Advertising Act, which includes a preemption provision, limiting the extent to which states may regulate the labeling, advertising, and promotion of cigarettes.

23-34 94th Grocery Corp., et al. v. New York City Board of Health, et al., 685 F.3d 174 (2nd Cir. 2012).

  • United States
  • Jul 10, 2012
  • United States Court of Appeals, Second Circuit
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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 Company

Defendant

  • Dr. Thomas Farley in his official capacity as Commissioner of the New York City Department of Health and Hygiene
  • Jonathan Mintz, in his official capacity as Commissioner of the NYC 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

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"The labeling requirement and preemption provision of the Labeling Act express Congress's determination that "the prescribed federal warnings are both necessary and sufficient to achieve its purpose of informing the public of the health consequences of smoking." Altria,555 U.S. at 79, 129 S.Ct. 538. Accordingly, states may not require that additional warnings be displayed by the manufacturer. See id. "[B]oth of the Act's purposes are furthered by prohibiting States from supplementing the federally prescribed warning...." Id. In Vango Media, Inc. v. City of New York, this Court invalidated one such effort to supplement federal warnings. 34 F.3d 68 (2d Cir.1994). There, a City ordinance required that one public health message pertaining to the dangers of smoking be displayed for every four tobacco advertisements displayed on top of taxi cabs. Id. at 70. We held that this was a requirement "with respect to" advertising, and therefore preempted by the Labeling Act. Id. at 73–75. Although the ordinance did [685 F.3d 182] not impact the appearance of the advertisements themselves, it "impose[d] conditions on [the] display of cigarette advertisements." Id. at 74–75. We held that Congress intended to preempt any local law that "treads on the area of tobacco advertising, even if it does so only at the edges." Id. at 74."