Tobacco Companies, NATO File Right to Advertise Lawsuit

NATO, R.J. Reynolds, Philip Morris and Lorillard are fighting back against a Worcester, Mass., ordinance that would ban outdoor and most indoor advertising.

On Friday, June 17, a lawsuit was filed by the National Association of Tobacco Outlets (NATO), R.J. Reynolds Tobacco Co., Philip Morris USA Inc. and Lorillard Tobacco Co. in U.S. Federal District Court in Massachusetts seeking a preliminary and permanent injunction against an ordinance adopted on May 10, 2011 by the Worcester, Mass., city council that seeks to ban virtually all outdoor and indoor tobacco advertising, NATO reported.

Specifically, the ordinance prohibits any person from “display[ing] any advertising that promotes or encourages the sale or use of cigarettes . . . 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.”

In other words, the ordinance prohibits all outdoor tobacco advertising, as well as all indoor tobacco advertisements displayed in a retail store that can be viewed from the street, such as through a window. The ordinance bans advertisements for all tobacco products, not just cigarettes. Adopted by the Worcester city council on May 10, the ordinance is scheduled to take effect this Friday, June 24.

The lawsuit seeks an order declaring that the ordinance violates the First Amendment of the U.S. Constitution that protects free speech, including commercial speech in the form of product advertising.  In 2001, a U.S. Supreme Court decision struck down a Massachusetts state law that prohibited outdoor advertising of tobacco products within 1,000 feet of a school or playground.  In this case titled Lorillard Tobacco Co. v. Reilly, the U.S. Supreme Court held that “so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.”

The Worcester, Mass. city ordinance is even more restrictive than the Massachusetts statewide law overturned by the U.S. Supreme Court in the Lorillard case, NATO noted.  NATO and the three tobacco manufacturers filed this lawsuit to protect the right to continue to advertise legal tobacco products at retail stores.

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