New York cigarette ban: Can it succeed where soda ban failed? (+video)
New York Mayor Michael Bloomberg wants stores to stop displaying cigarettes publicly. But if the ban is adopted, it could face legal challenges.
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The mayor has also pushed laws stopping restaurants from cooking with trans fats and forcing fast food outlets and chain restaurants to post calorie counts. Most recently, he attempted to advance a ban on sugary drinks in containers larger than 16 ounces, a controversial measure that was overturned at the 11th hour before it was set to go into effect.Skip to next paragraph
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To avoid the same thing happening to his cigarette plan, Bloomberg has put the proposal before City Council, where Speaker Christine Quinn has already shown interest in the measure. With the drinks ban, Bloomberg advanced it through the city’s board of health, which the mayor appoints, a move that the judge called an overreach of the mayor’s authority.
“That may help it pass muster,” says Professor Tobias. “To the extent the judge was concerned about that issue, maybe this approach helps the new proposal.”
Opponents of the ban are likely to make one of two counterarguments, Tobias says.
One would contend that the federal government has already regulated tobacco and that states and localities cannot take actions that conflict with the federal government, Tobias says. “My reading and most peoples’ reading of the legislation is that it’s not preempted by federal statute,” he adds.
The stronger and more likely argument, he says, is that the ban violates free speech.
“There may be a question about First Amendment rights, whether this violates the First Amendment free speech rights of sellers,” he says. “Can the government restrict speech [by] tell[ing] you how to display a legal product? Does that impinge on First Amendment free speech rights? Retailers and corporate entities have free speech rights too, the Supreme Court is very solicitous of corporate speech. That’s the argument" opponents are likely to make.
Although the city successfully defended court challenges to both of its smoking bans, a federal appeals court in Washington, D.C., struck down a law last year mandating tobacco companies display graphic warning labels on tobacco products. According to that decision, the law violated free speech rights.
The issue, however, is not settled: the D.C. circuit court ruling contradicted another decision, by a federal appeals court in Cincinnati last year, that upheld the constitutionality of the graphic warning labels.
Should Bloomberg’s proposed ban be challenged in court, it could reignite the broader debate over the constitutionality of regulating the tobacco industry.
Retailers are vowing to fight the proposal.
“Both unnecessary and unconstitutional, the Mayor’s attempts at heightened regulation will only victimize honest, hard working Americans,” Bradley Gerstman, counsel to the New York Association of Grocery Stores said in a statement. “We must protect small businesses here in New York from being trampled by the irresponsible decisions of government.”
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