Mass. city’s anti-tobacco ordinance struck down

Friday, April 6, 2012

A Worcester, Mass., ordinance broadly restricting tobacco advertising violates the First Amendment, a federal judge has ruled.

In 2010, the Worcester City Council amended its tobacco ordinance. One of the amended provisions read:

“No person shall display any advertising that promotes or encourages the sale or use of cigarettes, blunt wrap (rolling papers) or other tobacco products in any location where any such advertising can be viewed from any street or park shown on the Official Map of the city or from any property containing a public or private school or property containing an educational institution … ”

The National Association of Tobacco Outlets, R.J. Reynolds Tobacco Co., Philip Morris U.S.A. Inc., and Lorillard Tobacco Co. challenged the ordinance in federal court, contending that it violated their commercial free-speech rights.

On March 31, U.S. District Judge for the District of Massachusetts Douglas P. Woodlock agreed with the tobacco-plaintiffs and ruled in their favor in National Association of Tobacco Outlets v. City of Worcester.

Woodlock applied the U.S. Supreme Court’s test for evaluating commercial-speech restrictions from the 1980 decision Central Hudson Gas & Electric v. Public Service Comm’n of New York. Under the Central Hudson test, the threshold requirement for valid commercial speech is that it concern lawful activity and be truthful and nonmisleading.

The city argued that the ordinance in part regulated unlawful speech, because it regulated blunt wraps — cigarette-like rolling papers sometimes used to smoke illegal products, such as marijuana. The city emphasized that wrap sales are unlawful in the city. However, Woodlock noted that the sale of blunt wraps were legal elsewhere, including in Fitchburg.

He cited the Supreme Court’s 1975 decision in Bigelow v. Virginia, in which the Court invalidated a restriction on advertisements for abortions in New York in a Virginia newspaper. When the case began, abortions were illegal in Virginia but legal in New York.

“I conclude the Bigelow reasoning should apply to advertising in a city where the proposed transaction is illegal so long as the transaction is legal elsewhere and the advertising does not specifically promote a transaction in a locale where that transaction is illegal,” Woodlock wrote. “Worcester may not properly bar those who seek to disseminate information so as to enable its citizens to make better informed decisions about transactions that are legal elsewhere.”

Woodlock then applied the other prongs of the Central Hudson test: The government must have a substantial interest in regulating the speech; the regulation must directly and materially advance the government’s interest and the regulation must be narrowly drawn.

The city argued that it had a substantial interest in preventing youth tobacco use. The plaintiffs contended that the city’s interest was limited to minors. Woodlock agreed with the plaintiffs, citing a passage from the Supreme Court’s decision regarding the advertising of compound drugs in Thompson v. Western States Medical Center (2002): “We have previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.”

Woodlock then reasoned that the city could not meet the “must directly advance” prong of Central Hudson, as it applied to the ordinance’s protection of adults from tobacco advertising. He wrote that “the City of Worcester may not seek to remove a popular but disfavored type of products — those products that serve tobacco usage — from the marketplace by prohibiting truthful, nonmisleading advertisements directed to adults.”

Woodlock also determined that the city’s ordinance violated the last prong of the Central Hudson test — the “narrowly tailored” prong — under the Supreme Court’s ruling in Lorillard Tobacco Co. v. Reilly (2001), in which the Court invalidated a Massachusetts law that restricted tobacco advertising within 1,000 feet of a school or playground.

Woodlock said the Worcester ordinance — like the Massachusetts statute invalidated in Lorillard — was far too broad.

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