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WORCESTER, Mass. -- Last month, elected officials in this city approximately 40 minutes west of Boston adopted an ordinance restricting advertising of tobacco products within its limits. Now, the top three tobacco companies are taking legal action on the grounds that the ban violates the First Amendment.
The ban would prohibit any signs that are visible from the street letting consumers know that specific brands of cigarettes or tobacco products are available at a location. Instead, according to a report in the Boston Globe, retailers would only be able to advertise cigarettes in general.
Philip Morris USA (whose parent company is The Altria Group), R.J. Reynolds Tobacco Co. and Lorillard Tobacco Co. filed a suit against the city in federal court contending that the ban violates freedom of speech rights, the newspaper reported. The National Association of Tobacco Outlets (NATO) joined the Big Three in their legal challenge.
The ordinance, which was set to go into effective today, is on hold for now.
While case history comes down favorably on the side of the tobacco companies, some argue that the 2009 Family Smoking Prevention and Tobacco Control Act gives municipalities more control over tobacco advertising. Richard Daynard, a law professor at Northeastern University, said congressional findings in that law about how tobacco ads lead youths to smoke, and the ineffectiveness of current advertising restrictions, could influence the court, according to the news outlet.
"As Worcester goes, so goes the nation -- maybe," said Daynard, who is also president of the law school's Public Health Advocacy Institute. "I think they could do it -- in theory, I think they could."
The Worcester City Council approved the tobacco advertising ban in May, citing concerns that the advertising was contributing to a high incidence of smoking in the city, the second largest in Massachusetts. Nearly one-fourth, or 24 percent, of Worcester adults smoke, compared with a state average of 16 percent, according to city health statistic, the Boston Globe reported. City officials said they expected a legal challenge, given issues involving the Constitution's First Amendment, which guarantees freedom of speech.
And some First Amendment specialists question whether Worcester's ban will survive, especially given previous court rulings. "I think it's dead on arrival [because] it's not a regulation that's aimed at false or deceptive advertising; it's not a regulation that's aimed at unlawful activities," said Jonathan M. Albano, a partner at Bingham McCutchen LLP in Boston, who has also represented the Boston Globe on First Amendment issues. "Unless and until we make tobacco products illegal, allowing bans on advertisements like this would mean you could apply it to other activities that are disfavored by some, but are not illegal."
NATO told the newspaper that if Worcester succeeds in implementing its law, it could have national implications on how companies and retailers market tobacco products.
"If we allow one city to get away with interpreting the Constitution of the United States in the way they want to, it will potentially have a domino effect," said Andrew Kerstein, the trade group's president.