An important legal battle over a retailer’s ability to sell flavored tobacco products, accept tobacco product coupons, and offer promotionally-priced tobacco products is being waged in U.S. Federal District Court in Rhode Island. This litigation battle began when the Providence, Rhode Island City Council adopted two ordinances on January 5, 2012.
One of the ordinances bans the sale of virtually all flavored cigars, smokeless tobacco, and pipe tobacco products in the city. The other ordinance bans adult consumers from redeeming tobacco product coupons and also prohibits retailers from offering certain promotionally-priced tobacco products, such as “buy-one, get-one free” offers. Both of these ordinances were scheduled to take effect on March 1, 2012, but the implementation of these laws has been delayed due to the pending lawsuit.
NATO, the Cigar Association of America, Inc. (CAA), along with Lorillard Tobacco Company, R.J. Reynolds Tobacco Company, American Snuff Company, Philip Morris USA Inc., U.S. Smokeless Tobacco Manufacturing Company LLC, U.S. Smokeless Tobacco Brands Inc. and John Middleton Company filed a federal lawsuit seeking to overturn both ordinances.
The outcome of this litigation is very important because the court decision could either prevent other cities considering similar restrictions or set a precedent for local governments to introduce the same kind of local tobacco product and promotion prohibitions.
As a part of the litigation, the industry plaintiffs have filed a joint motion for summary judgment and a preliminary and permanent injunction against implementation of both ordinances. A summary judgment motion is a procedural step used during civil litigation to promptly dispose of a case without a trial and is appropriate when there is no dispute as to the material facts of the case and a party is entitled to judgment as a matter of law.
From the industry’s perspective, the flavor ban ordinance is unconstitutional because it severely limits how retailers and manufacturers may provide product information to consumers and describe the taste or aroma of these tobacco products. The right of Free Speech extends to commercial speech that encompasses product descriptions in advertisements and on packaging.
Likewise, the ban on coupons and promotionally priced tobacco products is unconstitutional because it limits the ability of retailers and manufacturers to communicate tobacco product prices to adult consumers and is pre-empted by federal law because the ordinance attempts to regulate the advertising and promotion of cigarettes. Also, the ordinance violates the Rhode Island Constitution because it improperly attempts to regulate tobacco retailers, an authority which is reserved exclusively to the state.
In response to the industry’s motions, the City of Providence has filed its own motion for summary judgment. In its motion documents, the city supports its ban on the sale of flavored tobacco products by claiming that tobacco manufacturers “remain perfectly free to communicate whatever they want to whomever they want about their flavored tobacco products, as long as they do not actually sell, or offer to sell, the lethal products in the City of Providence, outside of a smoking bar.”
The city uses a similar argument to claim that the ban on coupons and promotionally priced products is legal. Specifically, the city claims that the “Price Ordinance simply regulates particular commercial activity by a tobacco retailer. It in no way affects the ability of the Plaintiffs…to continue to disseminate price reduction instruments and multi-pack offers in Providence. The ordinance merely prohibits their redemption in the City.”
In addition, two organizations and a state agency have submitted Amicus Curiae briefs (“friend of the court” briefs) supporting the Providence ordinances. These briefs have been filed by the American Academy of Pediatrics, the Tobacco Control Legal Consortium, and the Rhode Island Department of Behavioral Healthcare.
A hearing on the summary judgment motions should take place by July 30, 2012.