Court: Flavor and Promotion Bans To Stay

The plaintiffs argued that the ordinances resulted in an infringement of the First Amendment protection of commercial speech.

Several tobacco associations and manufacturers that sought to overturn two Providence, R.I.  ordinances with a lawsuit brought before Federal District Court Judge Mary Lisi, lost their battle this week as the judge ruled in favor of the city,  the National Association of Tobacco Outlets (NATO) reported.

The first ordinance banned the sale of certain flavored tobacco products, while the second ordinance banned the acceptance and redemption of coupons and also prohibited the offering of price/promotional discounts on tobacco products. 

NATO, the Cigar Association of America, Lorillard Tobacco Company, R.J. Reynolds Tobacco Company, American Snuff Company, Philip Morris USA, Inc., U.S. Smokeless Tobacco Manufacturing Company, LLC, U.S. Smokeless Brands, Inc. and John Middleton Co. filed the lawsuit against the City of Providence.

Judge Mary Lisi ruled in favor of the city on both ordinances, and only removed one phrase from the definition of “characterizing flavor” in the flavor ban ordinance that read “concepts such as spicy, arctic, ice, cool, warm, hot, mellow, fresh and breeze,” NATO reported. 

The plaintiffs argued that the ordinances resulted in an infringement of the First Amendment protection of commercial speech in terms of advertising and promoting tobacco products by marketing flavored tobacco products, providing tobacco product coupons to adult consumers, and offering promotional pricing on various tobacco products.  Other claims made by the plaintiffs included the preemption of the ordinances by the Federal Cigarette Labeling and Advertising Act, preemption by the more recent Tobacco Control Act, and preemption under Rhode Island state law.

The plaintiffs have until Jan. 9, 2013 to file an appeal of Judge Lisi’s decision with the U.S. First Circuit Court of Appeals.

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