Trade associations and seven tobacco manufacturers team to fight tobacco ordinances.
On Tuesday, Feb. 14, the National Association of Tobacco Outlets Inc. (NATO), the Cigar Association of America Inc. (CAA), along with Lorillard Tobacco Co., R.J. Reynolds Tobacco Co., American Snuff Company, Philip Morris USA Inc., U.S. Smokeless Tobacco Manufacturing Co. LLC, U.S. Smokeless Tobacco Brands Inc. and John Middleton Co., filed a federal lawsuit in the U.S. Federal District Court in Rhode Island, seeking a temporary restraining order and preliminary and permanent injunctions against the enforcement of two tobacco-related ordinances adopted on Jan. 5, 2012 by the Providence, Rhode Island City Council.
One of the ordinances bans adult consumers from redeeming tobacco product coupons and also prohibits retailers from offering certain promotionally priced tobacco products, such as “buy-one, get-one free” offers. The second ordinance bans the sale of virtually all flavored cigars, smokeless tobacco and pipe tobacco products in the city. Both of these ordinances are scheduled to take effect on March 1, 2012.
“The ordinances raise serious federal and state constitutional questions while also being pre-empted by federal and state laws,” said NATO President Andrew Kerstein.
Regarding these two ordinances, the lawsuit seeks a judgment declaring, among other things, that (1) the ban on coupons and promotionally priced tobacco products as well as the prohibition on the sale of flavored tobacco products, are an unconstitutional violation of both the U.S. Constitution and the Rhode Island Constitution, (2) the ordinances are pre-empted by federal laws regulating tobacco products, and (3) the ordinances are void because the city failed to give the mandatory 48-hour public notice of the meeting at which the ordinances were adopted.
The lawsuit asserts that the anti-promotion ordinance is unconstitutional because it limits the ability of retailers and manufacturers to communicate tobacco product prices to adult consumers and is pre-empted by federal law because the ordinance attempts to regulate the advertising and promotion of cigarettes. Also, the ordinance violates the Rhode Island Constitution because it improperly attempts to regulate tobacco retailers, an authority which is reserved exclusively to the state. In addition, the city was required to give at least 48-hours public notice of the upcoming adoption of the ordinance, but the city provided only 29-hours prior public notice. This failure to give the proper public notice invalidates the ordinance.
The second ordinance, relating to flavored tobacco products, is unconstitutional because it severely limits how retailers and manufacturers may describe the taste or aroma of their tobacco products to consumers. The right of Free Speech extends to commercial speech that encompasses product descriptions in advertising. This ordinance is also pre-empted by federal law. In addition, as with the first ordinance, this ordinance violates the Rhode Island Constitution by adopting licensing requirements that are the exclusive province of the state. Just like the first ordinance, the City of Rhode Island failed to provide the minimum 48-hours prior public notice; for this reason also, the second ordinance is invalid.