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December 12, 2012

The City of Providence's bans on tobacco coupons and flavor advertising are upheld

By Suzanne Szymonik, JD

Tobacco companies and distributors were unsuccessful in arguing that two recent Providence, Rhode Island, municipal ordinances, a "price" ordinance that bans tobacco coupon redemptions in the city and a "flavor" ordinance that bans references to tobacco flavors and aromas, were unconstitutional violations of their commercial speech rights (National Association of Tobacco Outlets, Inc. v City of Providence, December 10, 2012, Lisi, M). Their motions seeking summary judgment, as well as preliminary and permanent injunction against Providence's enforcement of the ordinances, were denied.

Coupon ban. The tobacco dealers failed to show that the city ordinance banning the redemption of coupons precluded them from communicating pricing information to their customers. The ordinance regulates the couponing activity itself, not speech regarding coupons. It concerns coupon redemption, and it does not prohibit the distribution of coupons. Thus, the price ordinance does not implicate commercial speech, and First Amendment protection is not warranted, according to the federal district court.

Flavored products ban. The city ordinance banning the sale of flavored tobacco products does not amount to any prohibition on commercial speech. It is a sales ban, not a speech ban. However, the court did find that the ordinance's ban on "concepts such as spicy, artic, ice, cool, warm, hot mellow, fresh and breeze" confused rather than clarified the subject. The tobacco distributors correctly observed that these "concepts" could be used to describe tobacco products flavored with menthol, mint or wintergreen that are not subject to the ban. Thus, the court ordered that the "concept" words be stricken from the ordinance.

Because neither ordinance affected the tobacco distributors' First Amendment rights, the standard for review of the ordinances was merely whether there was a rational basis for the city's regulation. The city satisfied this standard, producing evidence of the link between such regulation and reduced tobacco use by underage consumers and young adults.

Preemption. The Family Smoking Prevention and Tobacco Control Act of 2009 (FSPTCA) (P.L. 111-31) added language to the 1965 law regulating tobacco advertising, the Federal Cigarette Labeling and Advertising Act, at 15 U.S.C. sec.1334(c), providing that states and localities may impose specific bans or restrictions on the time, place, and manner, but not the content, of the advertising or promotion of any cigarettes. The court found that the prohibition on coupon redemption did not amount to a ban on the advertising or promotion of cigarettes. Therefore, the FSPTCA did not preempt the coupon ordinance.

The court also found that the FSPTCA's preemption provision relates to tobacco product standards, not sales or distribution. Also, the FSPTCA bans flavored cigarettes while the Providence flavor ordinance bans flavored tobacco products that are not cigarettes. Thus, there was no conflict between the federal and the city laws, and no preemption of the city ordinance by federal law.

Other issues. The flavor ordinance was not unusually vague and it did not violate the distributors' due process rights. The question of whether the ordinances conflicted with Rhode Island tobacco licensing laws was not reached as there has been no license revocation action by the state. Nor were the ordinances preempted by state tobacco statutes. Finally, the ordinances were properly enacted and re-enacted, and thus, there was no open meeting law problem.

The tobacco distributors' motions for summary judgment, preliminary injunction, and permanent injunction were denied, and the city's motion for summary judgment was granted. The flavor ordinance must be modified in accordance with the judge's order.

The case number is 12-96 ML.

James R. Oswald and Kyle M. Zambarano (Adler Pollock & Sheehan, P.C.) for the National Association of Tobacco Outlets, Inc.; Adam M. Ramos and Gerald J. Petros (Hinckley, Allen & Snyder) for Cigar Association of America, Inc.; John B. Daukas (Goodwin Proctor LLP) for Philip Morris USA, Inc. Anthony F. Cottone for the City of Providence, Rhode Island.

Cases: CaseDecisions TobaccoNews LabelingNews AdvertisingNews RhodeIslandNews

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