NATO, NYACS and Manufacturers Sue New York City

Published in Tobacco E-News

Seek injunction on coupon and discount bans

By  Thomas A. Briant, Executive Director

MINNEAPOLIS -- NATO, the New York Association of Convenience Stores (NYACS), the Bodega Association of the United States, along with Lorillard Tobacco Company, R.J. Reynolds Tobacco Co., Inc., American Snuff Company, Philip Morris USA Inc., U.S. Smokeless Tobacco Brands Inc., and John Middleton Company have filed a lawsuit in the U.S. Federal District Court for the Southern District of New York seeking preliminary and permanent injunctions against the enforcement of several provisions of a tobacco-related ordinance adopted on October 30, 2013 by the New York City Council and which goes into effect on March 19, 2014.

The ordinance provisions that are the subject of the litigation are those sections that restrict cigarette and tobacco product coupons and other promotional price discounts (such as buy one, get one free) on tobacco products. As set out in the lawsuit, the ban on cigarette and tobacco product coupons and promotional price discounts raise serious federal and state constitutional questions while also being pre-empted by federal and state laws.

Specifically, the lawsuit seeks a judgment declaring, among other things, that (1) the ban on coupons, multi-package discounts and promotionally priced tobacco products are an unconstitutional restriction of free speech, violating the United States Constitution and the New York State Constitution, and (2) the ordinance provisions are pre-empted by both federal law and New York State law.

The lawsuit claims that these sections of the ordinance are unconstitutional because they restrict a retailer from redeeming cigarette and tobacco product coupons and from communicating to adult consumers that a particular tobacco product price is a promotional discount. The lawsuit also claims that these sections are pre-empted not only by the Federal Cigarette Labeling and Advertising Act, which prohibits states and localities from enacting restrictions on the advertising and promoting of cigarettes, but also by New York State law, which already regulates tobacco product coupons.