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TOBACCO OUTLET BUSINESS
MAY/JUNE 2012
Tobacco Advertising
Rights Persevere
By Thomas A. Briant, Executive Director, National Association of Tobacco Outlets
On March 29, 2011 NATO sent a letter to the mayor and city
council members of Worcester, Massachusetts informing
them that the city’s proposal to ban all outdoor tobacco
advertising visible from a school, park or street and any in-
store advertising that can be seen from a street violates the
First Amendment of the U.S. Constitution, which protects free
speech, including the right to advertise legal products. The
mayor and city council members did not listen to NATO’s
concerns and proceeded to adopt the ordinance on May 10,
2011, which contained the most restrictive local advertising
ban in the country.
In response, NATO, R.J. Reynolds Tobacco Company,
Philip Morris USA and Lorillard Tobacco Company sued the
City of Worcester to overturn the tobacco advertising ban
ordinance. On April 2, 2012, U.S. Federal District Court Judge
Douglas Woodlock issued a decision that the Worcester
ordinance banning all outdoor tobacco advertisements and
any in-store tobacco advertisements that can be seen from a
public street is unconstitutional.
NATO, R.J. Reynolds Tobacco Company, Philip Morris
USA and Lorillard Tobacco filed a lawsuit against the City of
Worcester, Massachusetts in June of 2011 alleging that the
tobacco advertising ban violated the First Amendment to
the U.S. Constitution. The U.S. Supreme Court has ruled that
the First Amendment’s protection of free speech includes
product advertising and that truthful advertising of products
to adults cannot be banned or overly restricted.
In the decision, Judge Woodlock held that the City of
Worcester “has no legitimate interest in prohibiting non-
misleading advertising to adults to prevent them from
making decisions of which the city disapproves.” That is,
although the Worcester city council members believe that
adults should not smoke, the city has no legal justification
to ban advertising of tobacco products. Specifically, Judge
Woodlock wrote that “Worcester may not prohibit tobacco
advertisements in order to prevent adults from making the
choice to legally purchase tobacco products.”
Even though the City of Worcester claimed that the
tobacco advertising ban ordinance was principally enacted
to prevent minors from accessing and using tobacco
products, the total ban went too far. Judge Woodlock relied
on the 2001 Supreme Court decision in the case of
Lorillard
Tobacco Co. v. Reilly
, which struck down as unconstitutional
a Massachusetts state law that was less restrictive and only
banned outdoor tobacco advertisements within 1,000 feet of
a school or playground.
The Worcester ordinance was much broader than the
Massachusetts state law because tobacco advertisements
were banned anywhere outdoors in the city as well as in
stores if the advertisements could be seen from a street.
According to JudgeWoodlock, theWorcester ban “was more
extensive than necessary to serve the government’s interest”
of preventing minors from accessing and using tobacco
products.
In order to be constitutional, a law restricting advertising
needs to be narrowly tailored to achieve the government’s
interest. While the City of Worcester has a valid government
interest in preventing minors from using tobacco, restrictions
on advertising cannot overreach.
In the decision, the judge found that “the governmental
interest in protecting children from harmful materials…does
not justify an unnecessarily broad suppression of speech
addressed to adults.” However, as the judge notes in the
decision, “the Ordinance suggests that the [City of Worcester]
did not consider how to tailor the restrictions so as not unduly
to burden the plaintiffs’ free speech rights and the rights of
adults to truthful information about tobacco products.”
The Worcester decision follows and is in line with U.S.
Supreme Court decisions in cases that involve protecting
product advertising from restrictions or bans. It is not known
at this time whether the City of Worcester will appeal this
court ruling. However, the favorable decision should provide
a chilling effect on other cities and local governments that
may attempt to pass such a tobacco advertising ban.
TOB
TRADE TALK
By Thomas briant