Local Control Given Setback

First the requirements of the Family Smoking Prevention and Tobacco Control Act that cigarette advertising be limited to black and white advertising where minors might view it were struck down. Now the ostensible overturning of Federal preemption for state and local authority to regulate point of purchase advertising was delivered a blow by a federal Judge in New York Wednesday, December 29.

The New york City Board of Health in 2009 voted to require tobacco retailers display graphic warnings of the dangers of tobacco use that included a number for free cessation services. However the decision delivered by U.S. District Judge Jed S. Rakoff considered that an infringement on the tobacco companies rights. “Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs," he said.

Tobacco free advocates were depending on Sec. 203 of the new law to allow local control preempted by the 1965 Federal Cigarette Advertising and Labeling Act. The law reads:

"Section 5 of the Federal Cigarette Labeling and Advertising Act (15 U.S.C. 1334) is amended by adding at the end the following: ‘‘(c) EXCEPTION.—Notwithstanding subsection (b), a State or locality may enact statutes and promulgate regulations, based on smoking and health, that take effect after the effective date of the Family Smoking Prevention and Tobacco Control Act, imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes.’’"

Apparently the graphic content denied those that profit from the leading cause of death and disease from the full protection of the law. Thus continues the odd saga in the United States of what is known only here as commercial speech. When applied to tobacco not only does it protect corporations’ speech it protects them from liability after 1969.

Supported by the major public health groups, and tobacco giant Phillip Morris, the new federal law giving limited authority over tobacco to the FDA is turning out to be yet another significant victory for tobacco companies.