Point of Sale Health Warnings

23-34 94th St. Grocery Corp. v. New York City Board of Health, 685 F.3d 174 (2nd Cir. 2012).

On July 10, 2012 the 2nd U.S. Circuit Court of Appeals affirmed a lower court decision ruling that New York City may not require cigarette retailers to post graphic health warnings near cash registers or cigarette displays.

The ruling stemmed from litigation over New York City Board of Health’s 2009 resolution requiring all licensed tobacco retail establishments in the City display one of three graphic signs, each providing information about the adverse effects of tobacco product use with pictures illustrating those effects, and information about how to get help to quit using tobacco. The NYC Department of Health and Mental Hygiene created three signs with graphic, color images of cancerous lungs, a decayed tooth, and a brain damaged by stroke. Each sign had “quit smoking” messages, and provided information about tobacco cessation resources. Retailers were required to post a small sign near the cash register or a larger sign near the area where tobacco products were displayed.

In its July ruling, a panel of Second Circuit judges explained that an existing federal law – the Federal Cigarette Labeling and Advertising Act (FCLAA) – prohibits (or preempts) state or local governments from adopting local rules which “affect the content of the retailers’ and manufacturers’ promotional efforts.”  It ruled that NYC’s required signs were doing just that: impermissibly affecting promotional efforts.  The appeals court reasoned that New York City’s rule “would require additional graphic warnings to be placed in close proximity to the federally mandated ones.”  It added that “[s]uch competing and potentially duplicative warnings are not contemplated by the federal statutory scheme.”

In addition to the preemption challenge, the resolution had been challenged on First Amendment grounds.  The court did not have to address these First Amendment challenges, however, since it ruled the city’s rule was preempted by the FCLAA.

The judges emphasized that states and localities remain free to engage in tobacco control campaigns using their own resources, explaining that their ruling “should not be read to curtail in any way state and locally funded efforts to further educate consumers and counter cigarette advertising and promotion.”

None of the educational initiatives by NY TCP contractors address requiring tobacco retailers to post graphic educational signs, so this decision, while unfortunate (and, we believe, legally misguided), does not impact NY TCP contractor work.