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United States District Court for the Southern District of New York Decided: December 29, 2010 Whether New York City’s health regulation, Resolution § 181.19, requiring tobacco retailers to post factual health warnings where tobacco products are sold, is preempted by federal law, violates the free speech provisions of the federal and state constitutions, and exceeds the authority of the Board of Health under New York State Constitution’s separation of powers doctrine.

We prepared and filed or joined in several amicus briefs in key cases before the appellate courts of many states, as well as the U. In December 2010, a federal judge struck down a New York City law requiring convenience stores and other tobacco retailers to post by cash registers vivid visual warning signs, such as diseased lungs, brains and teeth, to discourage consumers from purchasing cigarettes.

The judge wrote that under the Federal Cigarette Labeling and Advertising Act, only the federal government has the legal authority to regulate the advertising or promotion of cigarettes, and in his view, the signage at issue related to the promotion of cigarettes.

We argue that the City’s health resolution is tailored to advance the City’s compelling interest in alerting consumers to the serious health dangers of tobacco use, and point out that the use of a graphic on anti-smoking signs significantly increases their effectiveness, the size of the signs is needed to achieve their purpose, the placement of the signs at the point of sale maximizes their effectiveness, the cessation information on the signs directly advances the resolution’s goals, and the plaintiffs’ proposed alternatives would not achieve the same level of success as the resolution’s anti-smoking signs.

We also contend that the health warnings required by Resolution § 181.19 do not involve compelled ideological speech. Rakoff of United States District Court in Manhattan struck down the New York law, in a ruling that focused on the preemptive power of the 1965 federal Labeling Act.

Our brief argues that the Federal Cigarette Labeling and Advertising Act, which was amended in 2009 by the Family Smoking Prevention and Tobacco Control Act, does not preempt, or prohibit, the City from having such a requirement.

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