685 F.3d 174 (2nd Cir. 2012), 11-91-cv, 23-34 94th St. Grocery Corp. v. New York City Bd. of Health

Docket Nº:11-91-cv.
Citation:685 F.3d 174
Opinion Judge:CHIN, Circuit Judge:
Party Name:23-34 94TH ST. GROCERY CORP., Kissena Blvd. Convenience Store, Inc., New York Association of Convenience Stores, New York State Association of Service Stations and Repair Shops, Inc., Lorillard Tobacco Company, Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Inc., Plaintiffs-Appellees, v. NEW YORK CITY BOARD OF HEALTH, New York City Department o
Attorney:Miguel Estrada (Michael J. Edney, on the brief), Gibson, Dunn & Crutcher LLP, Washington, D.C., for Plaintiff-Appellee Philip Morris USA Inc. Floyd Abrams, Joel Kurtzberg, Cahill Gordon & Reindel LLP, New York, NY, for Plaintiffs-Appellees 23-34 94th St. Grocery Corp., Kissena Blvd. Convenience S...
Judge Panel:Before: HALL, LYNCH and CHIN, Circuit Judges.
Case Date:July 10, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
FREE EXCERPT

Page 174

685 F.3d 174 (2nd Cir. 2012)

23-34 94TH ST. GROCERY CORP., Kissena Blvd. Convenience Store, Inc., New York Association of Convenience Stores, New York State Association of Service Stations and Repair Shops, Inc., Lorillard Tobacco Company, Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Inc., Plaintiffs-Appellees,

v.

NEW YORK CITY BOARD OF HEALTH, New York City Department of Health and Mental Hygiene, New York City Department of Consumer Affairs, Thomas Farley, Dr., in his official capacity as Commissioner of the New York City Department of Health and Mental Hygiene, and Jonathan Mintz, in his official capacity as Commissioner of the New York City Department of Consumer Affairs, Defendants-Appellants.

No. 11-91-cv.

United States Court of Appeals, Second Circuit.

July 10, 2012

Argued: Dec. 1, 2011.

Page 175

[Copyrighted Material Omitted]

Page 176

Miguel Estrada (Michael J. Edney, on the brief), Gibson, Dunn & Crutcher LLP, Washington, D.C., for Plaintiff-Appellee Philip Morris USA Inc.

Floyd Abrams, Joel Kurtzberg, Cahill Gordon & Reindel LLP, New York, NY, for Plaintiffs-Appellees 23-34 94th St. Grocery Corp., Kissena Blvd. Convenience Store, Inc., New York Association of Convenience Stores, and New York State Association of Service Stations and Repair Shops, Inc.

Page 177

Noel J. Francisco, Jones Day, Washington, D.C., for Plaintiff-Appellee R.J. Reynolds Tobacco Co., Inc.

Alan Mansfield, Steven L. Saxl, Greenberg Traurig, LLP, New York, NY, for Plaintiff-Appellee Lorillard Tobacco Co.

Drake Colley (Nicholas R. Ciapetta, Edward F.X. Hart, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellants.

Patrick J. Carome, Paul R.Q. Wolfson, Daniel P. Kearney, Jr., Jeremy S. Winer, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Amicus Curiae American Legacy Foundation et al.

Robin S. Conrad, Kathryn Comerford Todd, National Chamber Litigation Center, Gene C. Schaerr, Andrew C. Nichols, Winston & Strawn LLP, Washington, D.C., for Amicus Curiae Chamber of Commerce of the United States of America.

Seth E. Mermin, Thomas Bennigson, Public Good Law Center, Berkeley, CA, for Amicus Curiae Los Angeles County Department of Public Health et al.

Daniel J. Popeo, Cory L. Andrews, Richard A. Samp, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation and Allied Educational Foundation.

Before: HALL, LYNCH and CHIN, Circuit Judges.

CHIN, Circuit Judge:

In 2009, the Board of Health of the City of New York adopted a resolution requiring all tobacco retailers to display signs bearing graphic images showing certain adverse health effects of smoking. The City did so as part of its continuing campaign to discourage cigarette use by educating New Yorkers about the dangers of smoking. The district court held below that the resolution is null and void because it is preempted by federal labeling laws. We agree, and therefore affirm.

BACKGROUND

A. Federal Regulation of Cigarettes: The Labeling Act

1. Purpose

In 1965, Congress enacted the Federal Cigarette Labeling and Advertising Act (the " Labeling Act" ).115 U.S.C. §§ 1331-41. The purpose of the Labeling Act is:

to establish a comprehensive Federal program to deal with cigarette labeling and advertising ..., whereby—

(1) the public may be adequately informed about any adverse health effects of cigarette smoking by inclusion of warning notices on each package of cigarettes and in each advertisement of cigarettes; and

(2) commerce and the national economy may be (A) protected to the maximum extent consistent with this declared policy and (B) not impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health.

15 U.S.C. § 1331. The Labeling Act thus seeks to strike a balance between informing the public about the dangers of cigarettePage 178

smoking and protecting commerce and the national economy. 2. Labeling Requirements

The Labeling Act prescribes the content and format of warnings that must appear on cigarette packages and in cigarette advertisements. Id. § 1333. Specifically, all cigarette packages and advertisements must contain the phrase " Surgeon General's Warning" followed by one of the following four cautions:

(1) Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.

(2) Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.

(3) Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.

(4) Cigarette Smoke Contains Carbon Monoxide.

Id. § 1333(a)(1).2 The warnings must be " in conspicuous and legible type in contrast by typography, layout, or color with all other printed material on the package." Id. § 1333(b). Furthermore, the Labeling Act mandates that manufacturers rotate these warnings " in alternating sequence" on packages, and in advertisements, of each brand. Id. § 1333(c).

3. Preemption

Congress also included a preemption provision in the Labeling Act, limiting the extent to which states may regulate the labeling, advertising, and promotion of cigarettes. Id. § 1334. First, the preemption provision prohibits states from requiring any additional " statement relating to smoking and health, other than the statement required by [§ 1333(a),] on any cigarette package." Id. § 1334(a). Second, it provides that " [n]o requirement or prohibition based on smoking and health shall be imposed under State law with respect to

Page 179

the advertising or promotion of any cigarettes" labeled in conformity with the Act. Id. § 1334(b).

Finally, subsection (c) states:

Notwithstanding subsection (b), a State or locality may enact statutes and promulgate regulations, based on smoking and health, ... imposing specific bans or restrictions on the time, place, and manner, but not content, of the advertising or promotion of any cigarettes.

Id. § 1334(c).

B. The Resolution

On September 22, 2009, the Board of Health (the " Board" ) 3 adopted a resolution amending Article 181.19 of the New York City Health Code. As amended, the Article provides:

(a) Any person in the business of selling tobacco products face-to-face to consumers in New York City shall prominently display tobacco health warning and smoking cessation signage produced by the Department [of Health].

...

(c) Persons who engage in face-to-face sales of tobacco products to consumers in New York City shall prominently display the signs required by subdivision (a) of this section by posting:

(1) one " small sign" 4 on or within 3 inches of each cash register or each place where payment may be made so that the sign(s) are unobstructed in their entirety and can be read easily by each consumer making a purchase; or

(2) one " large sign" 5 at each location where tobacco products are displayed so that:

(a) the sign(s) are unobstructed in their entirety and can be read easily by each person considering a tobacco product purchase; and

(b) in such a way that the distance between the bottom of the sign(s) and the floor shall be no less than four feet, and the distance between the top of such sign(s) and the floor shall be no more than seven feet.

N.Y.C. Health Code, § 181.19 (the " Resolution" ), invalidated by 23-34 94th St. Grocery Corp. v. N.Y.C. Bd. of Health, 757 F.Supp.2d 407 (S.D.N.Y.2010). The Department produced three signs, any one of which retailers could display to comply with the Resolution. One shows an x-ray image of a cancerous lung over the warning " Smoking Causes Lung Cancer." Another depicts a photograph of a decaying, extracted tooth over the warning " Smoking Causes Tooth Decay." The third is an MRI of a brain with damaged tissue resulting from a stroke, and states, " Smoking Causes Stroke." Each sign also reads, " Quit Smoking Today. Call 311 or 1-866-NYQUITS." Commissioner Farley declares that each image is " true and medically accurate." (Farley Decl. at 10).

The City passed the Resolution to " promote further reductions in smoking prevalence in New York City." (Notice of Adoption at 2). The City attributed the

Page 180

continued widespread use of cigarettes to a " lack of awareness and comprehension of the negative health outcomes associated with tobacco use." ( Id. at 1). Accordingly, it sought to reduce smoking by broadening its informational campaign.

Specifically, the City observed that cigarette advertising was particularly " prominent" in retail locations, but the " retail environment lack[ed] information about tobacco health risks." (N.Y.C. Dep't of Health and Mental Hygiene, Proposal to Require Health Warnings and Smoking Cessation Information Where Tobacco is Sold (the " Proposal" ) at 3 (June 24, 2009)). It also noted research indicating that " pictorial warnings" were " more effective and engaging than text-only warnings," especially...

To continue reading

FREE SIGN UP