Big Tobacco Targets City Ordinance

Big tobacco wants a federal judge to snuff out the citywide ban on all visible tobacco product and Lucky Strike advertising.

In a filing yesterday, the city agreed not to enforce the advertising section of the ordinance while a civil action filed last week by a tobacco group and several tobacco companies is pending. Enforcement was scheduled to begin Friday.

Both the city and plaintiffs agreed to the stay.

The plaintiffs are R.J. Reynolds Tobacco Co.; Philip Morris USA Inc., Lorillard Tobacco Co. and the National Association of Tobacco Outlets, which is a membership association in Minnesota that promotes and represents the interest of tobacco companies, distributors and retailers.

A portion of the city’s tobacco-control ordinance approved last month bans advertisements of cigarette and tobacco products visible from any city street, park, school or educational institution.

It is that section of the ordinance that is stayed until a hearing can be held in federal court. No date has been scheduled.

The city and plaintiffs agreed enforcement of that section will be postponed until 14 days after the court’s ruling on the plaintiffs’ motion for a preliminary injunction.

The civil action filed last Friday asks a judge to rule that the ordinance is in violation of the Constitution and the plaintiffs’ civil rights. They want a permanent injunction against the advertising enforcement section of the ordinance.

“We believe the ordinance violates our First Amendment rights to responsibly communicate with adult tobacco consumers,” R.J. Reynolds spokesman David P. Howard said yesterday. “It is trying to prohibit communication of a legal product to adults who choose to use tobacco.”

Case law backs the tobacco companies, Mr. Howard said. A U.S. Supreme Court decision involving Lorillard versus former Massachusetts Attorney General Thomas F. Reilly shot down state regulation prohibiting outdoor advertisements of tobacco products within 1,000 feet of a school or playground.

“The Ordinance is far broader than the Massachusetts regulation invalidated by the Supreme Court in Lorillard,” the civil action said. “The Massachusetts regulation was limited to tobacco advertising, visible from outside, located 1,000 feet of a school or playground. In contrast, the Ordinance applies to all tobacco advertising, anywhere in the city, that is visible from a public street, park, or school.”

City Solicitor David M. Moore said the city anticipated legal action after the ordinance was approved.

“What Worcester did is something that no other city has done, and this is pose an advertising restriction,” he said. “You won’t be able to drive anywhere in the city and see a tobacco advertisement. That is what the ordinance does.”

While the tobacco companies argue First Amendment rights, it appears the city is basing its ability to approve such a regulation on the Federal Family Smoking Prevention and Tobacco Control Act of 2009, which is referenced in the ordinance.

The act opened the door to local regulation of tobacco advertising, something before regulated only by the federal government. The tobacco groups argue the federal act does not trump the First Amendment.

City officials working on the ordinance found that almost 24 percent of adults in the city over the age of 18 smoke, and the statewide average is 16 percent.

An estimated 31,265 smokers live in the city. The city noted “the death and devastating effects of tobacco products on the residents of the city” in its decision to put forth the tobacco ordinance.

“The Ordinance is based on the City Council’s judgment that the adult citizens of Worcester cannot be trusted to make decisions regarding their own health and that tobacco advertising may lead adults to make what it believes is the wrong choice about tobacco use,” the civil action said.