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Issue link: https://read.dmtmag.com/i/38448
NATONEWS Protecting the Right to Advertise NATO files lawsuit Co. in U.S. Federal District Court in Massachusetts seeking a preliminary and permanent injunc- tion against an ordinance adopted on May 10, 2011 by the Worcester, Mass. city council, which would virtually ban outdoor and indoor tobacco advertising. A preliminary injunction hearing in federal court on the matter is scheduled for Sept. 8. O Thomas Briant is execu- tive director of the National Association of Tobacco Outlets. NATO’s toll-free number is (866) 869-8888 and the association’s Web site address is www.natocentral.org. TOTAL AD BAN 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 advertis- ing 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.” That is, the ordinance prohibits (1) all outdoor tobacco advertising, and (2) all indoor tobacco advertisements displayed in a retail store that can be viewed from the street (e.g., through a window). It is important to note that this ordinance bans advertisements for all tobacco products, not just cigarettes. While the ordinance was scheduled to take effect on June 24, the parties to the lawsuit agreed to postpone enforcement of the advertising ban por- tion of the ordinance until two weeks after the fed- eral district court issues its ruling on a motion for a preliminary injunction. This means that retailers can continue to advertise tobacco products until the court has an opportunity to hear the motion for a preliminary injunction and issue a ruling. FIRST AMENDMENT ISSUE The NATO lawsuit seeks an order declaring that the ordinance violates the First Amendment of the U.S. Constitution that protects free speech, includ- ing commercial speech in the form of product advertising. In 2001, a U.S. Supreme Court deci- 12 JULY/AUGUST 2011 N FRIDAY, JUNE 17, A LAWSUIT WAS FILED by NATO, R.J. Reynolds Tobacco Co., Philip Morris USA Inc., and Lorillard Tobacco sion struck down a Massachusetts state law that prohibited outdoor advertising of tobacco prod- ucts 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 custom- ers have an interest in receiving that information.” Eight years after the 2001 Lorillard decision, Congress passed the Family Smoking Prevention and Tobacco Control Act that authorized the U.S. Food and Drug Administration to regulate cigarettes, roll- your-own tobacco, and smokeless tobacco. Under Section 916 of the FDA tobacco regulatory law, local governments and states were given the authority to adopt “a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, pos- session, exposure to, access to, advertising and pro- motion of, or use of tobacco products by individuals of any age.” This section of the FDA regulatory law was relied on, in part, by the Worcester city council to adopt the tobacco advertising ordinance. The Worcester ordinance is the most restrictive local tobacco advertising ban in the country and is even more restrictive than the Massachusetts law. As a part of the FDA tobacco regulatory law, Congress required the FDA to issue a new rule to regulate outdoor tobacco advertising, but mandat- ed that the final rule must be “appropriate in light of governing First Amendment case law, including the decision…in Lorillard Tobacco Co. v. Reilly…” OVERLY RESTRICTIVE Despite the U.S. Supreme Court’s decision in the Lorillard case overturning a Massachusetts statewide advertising ban and the FDA’s acknowl- edgement that the Lorillard type advertising ban contained in the 1996 agency rule would not pass constitutional rigor, the Worcester city council adopted an ordinance that is even broader in scope than the restriction struck down in the Lorillard case and the original FDA rule advertising ban. This overreaching ban fails to adhere to consti- tutional First Amendment free speech standards. The right to advertise is of paramount importance to retailers and the protection of that right by recourse to the judicial system is necessary when an advertising restriction infringes and impairs that right. With NATO having retail members with stores located in Worcester, Mass., and the impor- tance of this issue to tobacco retailers nationwide, NATO filed the lawsuit to reaffirm the right to advertise legal tobacco products. NPN Magazine n www.npnweb.com