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

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.