The US Court of Appeals for the Second Circuit [official website] on Tuesday struck down [opinion, PDF] a New York City Department of Health [official website] regulation [text, PDF] requiring stores to display graphic anti-tobacco ads where tobacco products are sold. The court's decision affirmed the ruling of the US District Court for the Southern District of New York [official website] finding that the regulation is preempted by the Cigarette Labeling and Advertising Act [text], in which Congress reserved control over the content of cigarette labeling and advertising for the federal government. The act specifically prohibits states and municipalities from imposing any requirement or prohibition based on smoking and health with respect to the advertising of cigarettes. In its decision, the court said that although "the City's desire to tilt the balance more in favor of educating consumers is understandable," they do not have the authority to "require retailers to post warning signs adjacent to cigarette displays," because that power is reserved for the federal government. The lawsuit was brought by cigarette retailers and later joined by three tobacco companies [JURIST report].
Cigarette regulations and warning labels are controversial in the US even at the federal level. In March the US Court of Appeals for the Sixth Circuit ruled that graphic cigarette label warnings [JURIST news archive] are constitutional. The court decided unanimously that the portions of the Family Smoking Prevention and Tobacco Control Act (FSPTCA) [HR 1256 text] designed to limit the tobacco industry's ability to advertise to children, including a ban on distributing clothing and goods with logos or brand names, as well as sponsorship of cultural, athletic and social events requiring cigarette packaging and advertisements, is a valid restriction of commercial speech. Earlier that month, a judge for the US District Court for the District of Columbia ruled that the FDA regulation recommending warning labels is unconstitutional [JURIST report], issuing a permanent injunction. US President Barack Obama signed [JURIST report] the FSPTCA into law in 2009, granting the FDA certain authority to regulate manufactured tobacco products. The legislation heightens warning-label requirements, prohibits marketing "light cigarettes" as a healthier alternative and allows for the regulation of cigarette ingredients. The proposed implementation of new tobacco warning labels has also drawn criticism abroad. In Australia, Philip Morris has filed a complaint [JURIST report] to block new graphic warning label requirements [AUS Health Dept. backgrounder] recently enacted in that country.