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Federal Preemption Bars NYC Smoking Scare Tactics

By Robyn Hagan Cain | Last updated on

New York City can't scare smokers away from tobacco by ordering anti-smoking signs next to cigarette displays; that's the federal government's job.

Tuesday, the Second Circuit Court of Appeals struck down a 2009 city Board of Health resolution requiring tobacco retailers to display signs bearing graphic images showing the negative health effects of smoking, reports The Associated Press.

Article 181.19 of the New York City Health Code requires any person in the business of selling tobacco products in New York City to prominently display signs provided by the city health department. The department's signs include information about the adverse health effects of tobacco use, images of the health effects of tobacco use (similar to the new graphic cigarette labels), and information about how to quit smoking.

Graphic cigarette labels have been a hot issue this year. In March, the D.C. Circuit Court of Appeals decided that the Food and Drug Administration's new graphic warning labels for cigarettes were unconstitutional compelled speech, but the Sixth Circuit upheld the labels as constitutional. While those cases turned on First Amendment interpretations, the Second Circuit's decision was based on federal preemption.

Two cigarette retailers, a pair of trade associations, and three of the nation's largest cigarette manufacturers challenged the NYC posting requirement, seeking a declaration that Article 181.19 was preempted by the Federal Cigarette Labeling and Advertising Act.

Congress enacted the Labeling Act in 1965 to establish a comprehensive federal program to deal with cigarette labeling and advertising, and inform the public about the adverse health effects of cigarette smoking. The Act includes a federal preemption provision, limiting the extent to which states may regulate the labeling, advertising, and promotion of cigarettes.

In December 2010, District Judge Jed Rakoff concluded that the Labeling Act preempts NYC's Article 181.19, writing, "Even merchants of morbidity are entitled to the full protection of the law," reports the AP.

The Second Circuit Court of Appeals affirmed Judge Rakoff's ruling this week, finding that the city can impose supplementary warnings requirements, but it's preempted from requiring retailers to post graphic supplementary warnings adjacent to cigarette displays.

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