New York cigarette ban: Can it succeed where soda ban failed?

New York Mayor Michael Bloomberg wants stores to stop displaying cigarettes publicly. But if the ban is adopted, it could face legal challenges.

His soda ban overturned by a judge one day before it was set to go into effect, New York Mayor Michael Bloomberg is looking to smoke out another public health concern: tobacco.

The mayor wants to ban the public display of tobacco products in stores, which would make it the first such law of its kind in the country if passed.

Opponents, including the Retail Council of New York State and the New York Association of Grocery Stores, have already vowed to fight the ban, which they call an overreach. The result could be that any potential tobacco ban might face challenges from the industry similar to those encountered by the soda ban, legal experts say.

“They will challenge it,” says Carl Tobias, a law professor at the University of Richmond in Virginia. “They were making a lot of noise yesterday. I wouldn’t want my livelihood limited either. I understand that.”

Under Mayor Bloomberg’s proposal, retailers including grocery stores, convenience stores, and corner bodegas would have to keep tobacco products out of sight – in cabinets, drawers, under the counter, or behind a curtain. The city is also seeking to prohibit the use of coupons and discounts on cigarettes, as well as instating a minimum price for cigarettes.

The measure is designed to discourage young people from smoking, Bloomberg said in his address.

“Such displays suggest that smoking is normal activity,” he said in a briefing Monday. “And they invite young people to experiment with tobacco.”

“New York City has dramatically lowered our smoking rate, but even one new smoker is one too many – especially when it’s a young person,” he added. “Young people are targets of marketing and the availability of cigarettes and this legislation will help prevent another generation from the ill health and shorter life expectancy that comes with smoking.”

The ban is the latest in a series of smoking bans and ambitious public health initiatives the mayor has pushed since taking office. In 2002, the city passed legislation banning smoking in bars and restaurants, and in 2011 it banned smoking in public places like parks, plazas, and beaches.

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.

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.”