A federal judge has struck down a provision of a local tobacco control ordinance that bans outdoor advertising of tobacco products within the city. In a 23-page decision released yesterday, U.S. District Court Judge Douglas P. Woodlock ruled the ban is unconstitutional. He said the city has no legitimate interest in prohibiting “non-misleading advertising” to adults to prevent them from making decisions of which the city disapproves.
The judge added that the city failed to show the outdoor advertising regulations are not more extensive than necessary to advance its substantial interest in preventing underage tobacco use. He went on to say that the city also made no effort in crafting the ordinance to determine what types of advertisements are most harmful to minors. He said a ban on all signs of any size seems “ill suited” totargetthe problems of highly visible billboards, as opposed to smaller signs.
“The broad sweep of the ordinance suggests that the (city) did not consider how to tailor the restrictions so as not to unduly burden the plaintiffs’ free speech rights and the rights of adults to truthful information about tobacco products,” Judge Woodlock wrote.
“Neither the city’s goal to prevent tobacco-related health problems among adults, nor its correlative goal regarding minors, provides a basis for the ordinance,” he wrote.
The suit was brought against the city by the National Association of Tobacco Outlets Inc.; R.J. Reynolds Tobacco Co.;Philip Morris USAInc.; and Lorillard Tobacco Co.
Tobacco companies hailed the court decision as a victory for free speech.
“Tobacco companies have a constitutional right to communicate with adult consumers through retail advertising and this court appropriately recognized that,” said Murray Garnick, Altria Client Services senior vice president and associate general counsel, speaking on behalf of Philip Morris.
Andrew Kerstein, president of the National Association of Tobacco Outlets, was also pleased with the decision. He said while his organization shares the city’s goal of preventing minors from gaining access to and using tobacco products, he feels the outdoor advertising ban went too far.
City Solicitor David M. Moore said the city hasn’t decided whether it will appeal the decision. He said all options are being reviewed.
Meanwhile, District 2 Councilor Philip P. Palmieri, a leading advocate of the tougher tobacco control ordinance, said he was disappointed by the court decision. He said while he strongly believes in the First Amendment, the ordinance was aimed at reducing the number of “unnecessary deaths” in the city caused by tobacco products.
“I am disappointed that the judge did not take into consideration the most basic and fundamental consideration of young children being impacted by this rule,” he said.
Last April, Worcester became the ninth municipality inthe stateto ban the sale of cigarettes and other tobacco products by local health-care providers, including chain pharmacies and other drugstores. The ban was one of four amendments to the city’s tobacco control ordinance.
The other amendments also banned the sale of tobacco products at local institutions of higher education and the citywide sale of so-called blunt wraps — a cigarette-like rolling paper that is usually made from tobacco leaves.
In addition, cigarettes and tobacco products can not be advertised in areas where they can be viewed from public streets, parks, schools and institutions of higher education. That effectively banned the outdoor advertisement of tobacco products throughout the city.
Advocates of the amendments called the council’s action “historic,” adding that they will serve as an important first step to reduce the smoking rate in Worcester.
In drafting the ordinance, city public health officials pointed out that an estimated 31,265 smokers live in Worcester. They said 23.7 percent of adults living in the city smoke — a level that is 47 percent higher than the statewide rate of 16.1 percent.
Also, cigarette smoking among residents ages 45 to 64 is at the 23.7 percent level, which is 42 percent higher than the statewide level of 16.7 percent.
Meanwhile, the death rate among Worcester residents from tobacco is about 250 people annually, or roughly five deaths per week, according to public health officials.
Soon after the City Council adopted the ordinance, tobacco companies filed suit against the city, challenging the validity of the advertising ban. The city agreed not to enforce that provision of the ordinance while the lawsuit was pending.
The council pursued the tougher regulations because of the health harms caused by tobacco and the relationship between tobacco advertising and increased tobacco use. But the tobacco companies objected to the ordinance’s advertising regulation, saying it will impede their ability to market their products within the city.
“The plaintiffs do not claim that the city of Worcester lacks a substantial government interest in preventing youth tobacco use,” the judge wrote. “However, they argue that the city’s substantial interest is limited to protecting minors.
“They contend the city has no legitimate interest in prohibiting non-misleading advertising to adults to prevent them from making decisions of which the city disapproves,” he added.
Judge Woodlock said the U.S. Supreme Court in 2002 considered a similar First Amendment challenge to a statute prohibiting the promotion of compound drugs.
But the Supreme Court dismissed the notion that government has an interest in preventing the dissemination of truthful commercial information in order to prevent the public from making bad decisions with that information.
“The (Supreme) Court thus rejected the principal interest advanced by the city of Worcester in support of its advertising restriction,” the judge wrote.
Judge Woodlock also made reference to a decision made by the Supreme Court last year that effectively prohibits the city from seeking to remove “a popular but disfavored type of product,” such as tobacco, from the marketplace by prohibiting truthful, non-misleading advertisements directed to adults.
Under that court decision, the judge said, “Worcester may not prohibit tobacco advertisements in order to prevent adults from making the choice to legally purchase tobacco products.”
In December, the legal challenge of the city’s ban on the sale of blunt wraps was dropped. Meanwhile, Honey Farms has filed a challenge to the provision of the tobacco control ordinance that bans the sale of tobacco products on property owned by educational institutions.