UPDATE: Dismissal of NYC Graphic POS Tobacco Signs Upheld

Published in CSP Daily News

Appellate Court agrees requirements preempted by federal law

RICHMOND, Va. -- The U.S. Court of Appeals for the Second Circuit has upheld a 2010 district court district decision that struck down a New York City mandate that cigarette retailers display signs containing graphic health warning.

The suit was filed on behalf of individual retailers, the New York Association of Convenience Stores (NYACS), New York State Association of Service Stations & Repair Shops and several tobacco manufacturers, including Philip Morris USA.

Agreeing with the original trial court, the three-judge appellate court concluded that "requirements or prohibitions directly affecting the content of the manufacturers' promotional message to consumers are preempted." Specifically, the court held that posting graphic health warning signs next to cigarette displays would affect the content of promotional efforts made by both retailers and manufacturers--as such, the city cannot force retailers to post such signage.

The retailers involved in the suit were pleased by this ruling, which came down on July 10, 2012.

"We're glad the Second Circuit agrees that the City of New York overstepped its bounds here," NYACS president Jim Calvin told CSP Daily News. "It's idiotic to force retailers to nauseate their customers who come in for a carton of milk by showing them a color picture of diseased organs at the cash register."

For their part, the manufacturers involved in the suit were equally satisfied with the appellate court's decision.

"We are pleased that the Second Circuit reaffirmed that federal law bars state and local governments from regulating the content of cigarette advertising and promotion," Murray Garnick, Altria Client Services senior vice president and associate general counsel, said on behalf of Philip Morris USA. "This suit has always been about who has the authority to regulate the content of cigarette warnings. That is a power reserved to the federal government without interference or additional efforts by state and local authorities."

Ultimately, Judges Peter Hall, Gerard Lynch and Denny Chin ruled that only federal law can "require retailers to post warning signs adjacent to cigarette displays," they said in the ruling.

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