Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Worcester

• Decision Date: 31 March 2012
• Docket Number: Civil Action No. 11–40110–DPW.
• Citation: 851 F.Supp.2d 311
• Parties: NATIONAL ASSOCIATION OF TOBACCO OUTLETS, INC.; R.J. Reynolds Tobacco Company; Philip Morris USA Inc.; and Lorillard Tobacco Company, Plaintiffs, v. CITY OF WORCESTER, MASSACHUSETTS; Division of Public Health of Worcester, Massachusetts; B. Dale Magee, in his Official Capacity as Commissioner of Public Health of Worcester, Massachusetts; Michael V. O'Brien, in his Official Capacity as City Manager of Worcester, Massachusetts, Defendants.
• Court: U.S. District Court — District of Massachusetts

851 F.Supp.2d 311

NATIONAL ASSOCIATION OF TOBACCO OUTLETS, INC.; R.J. Reynolds Tobacco Company; Philip Morris USA Inc.; and Lorillard Tobacco Company, Plaintiffs,

v.CITY OF WORCESTER, MASSACHUSETTS; Division of Public Health of Worcester, Massachusetts; B. Dale Magee, in his Official Capacity as Commissioner of Public Health of Worcester, Massachusetts; Michael V. O'Brien, in his Official Capacity as City Manager of Worcester, Massachusetts, Defendants.

Civil Action No. 11–40110–DPW.

United States District Court, D. Massachusetts.

March 31, 2012.

Craig I. Chosiad, Noel J. Francisco, Jones Day, Michael J. EdneyGibson, Dunn & Crutcher LLP, Washington, DC, Traci L. Lovitt, Christopher M. Morrison, Jones Day, A. John Pappalardo, Victor H. Polk, Jr., Greenberg Traurig, LLP, Boston, MA, Alan Mansfield, Stephen L. Saxl, Greenberg Traurig LLP, Mark K. Schonfeld, Gibson, Dunn & Crutcher LLP, New York, NY, for Plaintiffs.

David M. Moore, City of Worcester Law Department, Worcester, MA, for Defendant.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

PlaintiffNational Association of Tobacco Outlets, Inc., an association representing the interests of tobacco retailers, tobacco-related manufacturers, and tobacco-related wholesale distributors; and PlaintiffsR.J. Reynolds Tobacco Company; Philip Morris USA Inc.; and Lorillard Tobacco Company, tobacco manufacturers, bring this action against the City of Worcester, its Division of Public Health, its Commissioner of Public Health, and its City Manager, challenging as violative of the First Amendment the recently enacted provision of Worcester's Tobacco Products Control Ordinance (the “Ordinance”) that prohibits outdoor advertising of tobacco products within the City of Worcester.The plaintiffs filed a Complaint seeking preliminary and permanent injunctions preventing enforcement of the provision and a declaratory judgment regarding its constitutionality.Before me is a motion for preliminary injunctive relief and for summary judgment.

I.BACKGROUND

On May 10, 2011, the Worcester City Council amended its Tobacco Products Control Ordinance.Worcester Massachusetts Revised Ordinances of 2008 ch. 8, § 3.One new provision of the Ordinance regulates the advertisement of tobacco products in Worcester.It states:

No person shall display any advertising that promotes or encourages the sale or use of cigarettes, blunt wrap or other tobacco products in any location where any such advertising can be viewed from any street or park shown on the Official Map of the city or from any property containing a public or private school or property containing an educational institution....

Id. at (i)(1).

A second provision states that “[n]o retail establishment or entity shall sell or cause to be sold blunt wraps.”Id. at (g)(7).The definition of a “blunt wrap” explains that it is a “cigarette-like rolling paper that is thick and dark and usually made from tobacco leaves.Blunt wraps come in flavored varieties and are heavily marketed to the youth and often used as drug paraphernalia.”The restriction on sale of blunt wraps is no longer in dispute.¹

Prior to final adoption of the Ordinance, the Worcester City Council made a number of findings.Most of these findings related to the harms caused by tobacco and the relationship between tobacco advertising and increased tobacco use.Among the findings are the following:

• There exists conclusive and voluminous evidence that tobacco causes cancer, respiratory and cardiac diseases, negative birth outcomes, irritations to the eyes, nose and throat;

• The surgeon general had determined that nicotine is a powerfully addictive drug; • 23.7% of adults in the city of Worcester over 18 years of age smoke, a level which is 47% higher than the statewide average of 16.1%;

• At least one-half of all smokers begin smoking before the age of eighteen and an estimated 3,000 minors begin smoking every day in the United States;

• Tobacco advertising and marketing contribute significantly to the use of nicotine-containing tobacco products by adolescents;

• Tobacco advertising expands the size of the tobacco market by increasing consumption of tobacco products including tobacco use by young people;

• Comprehensive advertising restrictions will have a positive effect on the smoking rates of young people and adults;

• Despite a progression of federal laws, state laws and city ordinances enacted over the past several decades which prohibited the sale of tobacco products to minors, required warning labels on cigarette packages, prohibiting [sic] television and radio advertising of tobacco products, prohibited the distribution of free cigarettes, prohibited smoking in public places, prohibited smoking in restaurants, prohibited smoking in workplaces and buildings, prohibited vending machine sale of tobacco products, [and] required tobacco sales permits ... the marketing strategies continue and the rampant use of tobacco products and the death and devastation resulting therefrom continue at the epidemic levels described herein.

The plaintiffs are concerned that the Ordinance's advertising regulation will impede their ability to market their products within the City of Worcester.They initially moved for a preliminary injunction to enjoin enforcement of the advertising provision.The parties have stipulated to a stay of enforcement of the Ordinance pending litigation of the motion.

During a scheduling conference with the parties, I suggested the possibility that the issues presented might be ripe for summary judgment.The plaintiffs then moved for summary judgment, referring to the arguments made in their memoranda in support of their motion for a preliminary injunction.As will appear below, I find the issues lend themselves to resolution by summary judgment and consequently will not pause to address the preliminary injunction motion.

II.STANDARD OF REVIEW

A movant is entitled to summary judgment when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”Fed.R.Civ.P. 56(a).“A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party,” and “[a] fact is material if it has the potential of determining the outcome of the litigation.”Farmers Ins. Exch. v. RNK, Inc.,632 F.3d 777, 782(1st Cir.2011)(quotingRodríguez–Rivera v. Federico Trilla Reg'l Hosp.,532 F.3d 28, 30(1st Cir.2008)).In evaluating a motion for summary judgment, a court must “view the facts in the light most favorable to the party opposing summary judgment.”Rivera–Colón v. Mills,635 F.3d 9, 10(1st Cir.2011).

III.ANALYSIS

At issue is the plaintiffs' contention that the Ordinance's provision prohibiting outdoor advertising (and indoor advertising that can be viewed from the street) violates their First Amendment commercial speech rights under the United States Constitution.

Commercial speech such as this is subject to the First Amendment, but afforded a lesser protection than other types of expression.United States v. Edge Broadcasting Co.,509 U.S. 418, 426, 113 S.Ct. 2696, 125 L.Ed.2d 345(1993).The Supreme Court has set forth a sequential test to determine the validity of a regulation of commercial speech:

In commercial speech cases ... a four-part analysis has developed.At the outset, we must determine whether the expression is protected by the First Amendment.For commercial speech to come within that provision, [1] it at least must concern lawful activity and not be misleading.Next, we ask whether [2] the asserted governmental interest is substantial.If both inquiries yield positive answers, we must determine whether the regulation [3] directly advances the governmental interest asserted, and whether [4] it is not more extensive than is necessary to serve that interest.

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n,447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341(1980).Applying the test here,² I find the Ordinance violates the First Amendment.

A. Nonmisleading Advertisements Regarding Lawful Activity

The defendants do not contend that the advertisements prohibited by the Ordinance are misleading (at least as a general matter).Additionally, the defendants concede that the Ordinance prohibits speech concerning lawful activity with regard to the sale of most tobacco products.However, because the Ordinance also prohibits the sale of blunt wraps in Worcester, the defendants contend that the plaintiffs' First Amendment case regarding blunt wraps alone founders at the first step of the Central Hudson analysis.They claim that because cigar wrap sales are unlawful in Worcester, the First Amendment offers no protection to blunt wrap advertisements in Worcester.

The “lawful activity” inquiry under Central Hudson requires a consideration of whether the regulated speech at issue “is speech proposing an illegal transaction.”Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,455 U.S. 489, 496, 102 S.Ct. 1186, 71 L.Ed.2d 362(1982).A transaction need not be criminal to be “illegal” in this context, and its illegality may stem from its prohibition by a city ordinance.For example, in support of the illegal activity exception to First Amendment protection, Central Hudson cites Pittsburgh Press Co. v. Pittsburgh Human Relations Commission,413 U.S. 376, 93 S.Ct. 2553, 37 L.Ed.2d 669(1973), a case in which a ban on commercial speech related to illegal activity was upheld, where the illegal activity at issue was employment discrimination in violation of a Pittsburgh anti-discrimination ordinance.

Here, the defendants fail to consider the legality of the different types of transactions the promotion of which is prohibited by the Worcester Ordinance.While an advertisement in Worcester specifically promoting sales of blunt wraps in Worcester promotes unlawful activity, an advertisement in Worcester...