National Association of Tobacco Outlets, Inc., et al. v. City of Providence, Rhode Island, et al.
National Association of Tobacco Outlets, Inc., et al. v. City of Providence, Rhode Island, et al., C.A. No. 12-96-ML (D.R.I. 2012).
- United States
- Dec 10, 2012
- U.S. District Court for the District of Rhode Island
- American Snuff Company
- Cigar Association of America, Inc.
- John Middleton Company
- Lorillard Tobacco Company
- National Association of Tobacco Outlets, Inc.
- Philip Morris USA, Inc.
- R.J. Reynolds Tobacco Company
- U.S. Smokeless Tobacco Brands, Inc.
- U.S. Smokeless Tobacco Manufacturing Company LLC
- Angel Travers, Mayor of Providence
- City of Providence, Rhode Island
- Michael A. Solomon, Providence City Council President
- Providence Board of Licenses
- Providence Police Department
- Steven M. Pare, Comissioner of Public Safety for the City of Providence
Fourteenth Amendment Due Process
Type of Litigation
Challenge to Government Policies Relating to Tobacco Control/Public Health
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.
Tobacco Control Topics
Contents and Disclosures Measures
Measures for testing, measuring, regulating, or disclosing the contents and emissions of tobacco products. (See FCTC Arts. 9 and 10)
Packaging and Labeling Measures
Measures to regulate the marketing on tobacco packages. This includes both bans on false, misleading, deceptive packaging, as well as required health warnings on packaging. (See FCTC Art. 11)
Advertising, Promotion and Sponsorship
Measures restricting any form of direct or indirect tobacco advertising, promotion and sponsorship. (See FCTC Art. 13)
Sales to or by Minors
Measures restricting tobacco sales to or by minors, as well as other retail restrictions relating to point-of-sale, candy and toys resembling tobacco products, vending machines, or free distribution. (See FCTC Art. 16)
Right to Health
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.
Right to Commerce
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.
Right to Freedom of Expression
A violation of the right to expression, free speech or similar right to express oneself without limitation or censorship. The industry may claim that a regulation infringes on their right to communicate with customers and the public. Similarly, they may claim that mandated warnings infringe on their freedom to communicate as they desire.
Right to Access to Information
A violation of the public’s right to information. The tobacco industry may claim that advertising, promotion or sponsorship, or packaging regulations limit the industry’s ability to communicate information to their customers and therefore infringes on the customer’s right to receive information, and to distinguish one product from another. Alternatively, public health advocates may claim that tobacco industry misinformation violates their right to accurate information or that government must be transparent in its dealings with the tobacco industry.
Right to Judicial Protection
This is the right to access the court system and have the courts enforce your rights.
Right to Procedural Due Process
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Tobacco Control Law Violation
A claim of a violation of a tobacco control law or statute.
Excessive Delegation of Authority to the Executive
The legislative branch, through its tobacco control legislation, may have granted too much authority to the executive branch to implement measures administratively.
The subject matter of the case should be dealt with at a state level or national level.
Ultra Vires Regulation
Subsequent regulations exceed the scope of the originating law.
Type of Tobacco Product
Various tobacco companies sought to prevent the implementation of ordinances passed by the City of Providence, Rhode Island to prohibit the sale of certain flavored non-cigarette tobacco products and certain price based promotions like “buy-two-get-one-free”. The court found that Providence’s restrictions are reasonable regulations of the sales of tobacco products and serve the city’s legitimate goal of reducing smoking and other tobacco use, especially among kids. The court rejected arguments by tobacco companies that the ordinances violated their First Amendment rights or are also preempted by federal and state law. Holding that, “Neither of the Ordinances at issue precludes the Plaintiffs from engaging in activities that can be considered ‘commercial speech’,” and “(t)he three provisions of the FSPTCA (Family Smoking Prevention and Tobacco Control Act) constitute no impediment to the City’s prohibition against the sale of flavored tobacco products.”