NY Metro. Food Council v. Giuliani

• Decision Date: 07 September 1999
• Docket Number: Docket No. 99-7006
• Citation: 195 F.3d 100
• Parties: (2nd Cir. 1999) THE GREATER NEW YORK METROPOLITAN FOOD COUNCIL, INC., THE ADVERTISING FREEDOM COALITION and THE ADVERTISING CLUB OF NEW YORK, INC., Plaintiffs-Appellees, v. RUDOLPH W. GIULIANI, in his official capacity as Mayor of the City of New York, THE CITY OF NEW YORK, GASTON SILVA, in his official capacity as Commissioner of the New York City Department of Buildings and ALFRED C. CERULLO, III, in his official capacity as Commissioner of the New York City Department of Finance, Defendants-Appellants. August Term 1999 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 100

195 F.3d 100 (2nd Cir. 1999)

THE GREATER NEW YORK METROPOLITAN FOOD COUNCIL, INC., THE ADVERTISING FREEDOM COALITION and THE ADVERTISING CLUB OF NEW YORK, INC., Plaintiffs-Appellees, v. RUDOLPH W. GIULIANI, in his official capacity as Mayor of the City of New York, THE CITY OF NEW YORK, GASTON SILVA, in his official capacity as Commissioner of the New York City Department of Buildings and ALFRED C. CERULLO, III, in his official capacity as Commissioner of the New York City Department of Finance, Defendants-Appellants.

Docket No. 99-7006

August Term 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: September 7, 1999

Decided: October 25, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York (Batts, J.), enjoining the enforcement of a New York City ordinance, the "Youth Protection against Tobacco Advertising and Promotion Act," and declaring the ordinance preempted under the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1331, et seq., and the Supremacy Clause of the United States Constitution.

AFFIRMED in part, REVERSED in part, and REMANDED.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] FLOYD ABRAMS, Cahill Gordon & Reindel, New York, NY (Jonathan Donnellan, Joel Kurtzberg, Matthew A. Leish, Cahill Gordon & Reindel, Howard B. Tisch, Greater New York Metropolitan Food Council, Inc., on the brief), for Plaintiffs-Appellees.

ELIZABETH S. NATRELLA, Corporation Counsel's Office, City of New York, New York, NY (Michael D. Hess, Corporation Counsel, Leonard J. Koerner, and Deborah Rand, on the brief), for Defendants-Appellants.

GIDEON A. SCHOR, United States Attorney's Office for the Southern District of New York, New York, NY, argued and jointly submitted a brief with DOUGLAS N. LETTER, United States Department of Justice, Washington, DC, (with Mary Jo White, United States Attorney for the Southern District of New York, David W. Ogden, Acting Assistant Attorney General, and William B. Schultz, Deputy Assistant Attorney General, on the brief), for amicus curiae, United States of America.

ELIOT D. PRESCOTT and JANE R. ROSENBERG, Assistant Attorneys General, Attorney General's Office, State of Connecticut, Hartford, CT, submitted a brief for amicus curiae, State of Connecticut.

DONALD W. GARNER, Pepperdine University Law School, Malibu, CA, submitted a brief for amici curiae, American Medical Association, American Heart Association, American Lung Association, American Cancer Society, Center for Science in the Public Interest, Public Citizen, Inc., Medical Society of the State of New York, Protect Our Youth, New York Public Interest Research Group, Project Friend, League of Women Voters of New York State, Campaign for Tobacco-Free Kids, The Diocese of Brooklyn Drug Prevention Program, Smokefree Educational Services, Inc., New York State Occupational Therapy Association, Coalition for Smokefree Harlem, The Heart of Harlem Cardiovascular Disease Prevention Program, Boriken Neighborhood Health Center, Bushwick Community Service Society, New York County Medical Society, Unidos Coalition, New Jersey Gasp, Alliance for Smoke-Free Air, Montefiore Medical Center/Albert Einstein Cancer Center.

ARTHUR N. EISENBERG, New York Civil Liberties Union, New York, NY submitted a brief for amicus curiae, New York Civil Liberties Union.

RICHARD A. SAMP and DANIEL J. POPEO, Washington Legal Foundation, Washington, DC submitted a brief for amicus curiae, Washington Legal Foundation.

Before: McLAUGHLIN, CALABRESI, SOTOMAYOR, Circuit Judges.

McLAUGHLIN, Circuit Judge:

BACKGROUND

This appeal stirs up a volatile mix of anti-tobacco legislation, federal preemption and First Amendment limitations upon commercial speech.

In early 1998, New York City enacted Local Law No. 3. It is entitled the "Youth Protection Against Tobacco Advertising and Promotion Act," and is codified as Article 17A to Title 27, Chapter 1, subchapter 7, of the New York City Administrative Code 27508.1 to 27-508.6 ("Article 17-A"). Article 17-A prohibits most outdoor advertising of tobacco products (other than tobacco advertisements on motor vehicles) within one thousand feet of any school building, playground, child day care center, amusement arcade or youth center. It also prohibits most indoor advertising in the same areas if the advertisements can be seen from the street. There is one exception to the ban: a single, black-and-white, text-only "tombstone" sign stating, "TOBACCO PRODUCTS SOLD HERE," may be placed within ten feet of an entrance to a store where tobacco products are sold.

Section 1 of Local Law 3 contains a "Declaration of legislative findings and intent." According to the Declaration, Article 17-A's purpose is "to strengthen compliance with and enforcement of laws prohibiting the sale or distribution of tobacco products to children and to protect children against such illegal sales."

Article 17-A also contains a severability clause, stating that if any portion of the ordinance should be found invalid, this will not affect the remaining portions.

On the day that Mayor Giuliani signed Article 17-A into law, the plaintiffs, various supermarket and advertising associations (collectively, the "Advertisers") brought this 1983 action against New York City, Mayor Giuliani, and two other city officials responsible for enforcing Article 17-A (collectively, the "City") in the United States District Court for the Southern District of New York (Batts, J.). The Amended Complaint seeks declaratory and injunctive relief. It alleges that: (1) Article 17-A is preempted by the Federal Cigarette Labeling and Advertising Act ("FCLAA"), 15 U.S.C. 1331, et seq. (1994), and therefore violates the Supremacy Clause of the United States Constitution; and (2) Article 17-A unconstitutionally restricts commercial speech in violation of the First Amendment. After some discovery, all parties moved for summary judgment.

Relying heavily on Vango Media, Inc. v. City of New York, 34 F.3d 68 (2d Cir. 1994), the district court found that Article 17-A was preempted by the FCLAA's preemption provision: "No requirement or prohibition based on smoking and health shall be imposed under State law with respect to the advertising or promotion of any cigarettes the packages of which are labeled in conformity with the provisions of this chapter." 15 U.S.C. 1334(b).

Noting that 1334(b) applies to laws of political subdivisions, as well as states, see id. 1332(3), the district court found that the express language of the preemption provision embraced Article 17-A. The court rejected the City's argument that it should look to congressional intent to determine the preemptive scope of the provision. The district court found no need to examine congressional intent "in light of the fact that both the Supreme Court and the Second Circuit have directed that reliance on the express preemption provision is appropriate." Accordingly, the court awarded the Advertisers summary judgment and permanently enjoined the enforcement of Article 17-A. The district court did not reach the Advertisers' First Amendment claim.

The City now appeals. Several amici curiae have weighed in on both sides of the dispute.

DISCUSSION

We review a district court's award of summary judgment de novo, drawing all inferences and resolving all ambiguities in favor of the nonmoving party. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Summary judgment is proper only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

I. Preemption

We are asked to determine whether and to what extent Article 17-A is preempted by the FCLAA. The district court concluded that the FCLAA preempted Article 17-A in its entirety. We conclude, however, that the FCLAA only partially preempts Article 17-A. While the ordinance's "tombstone" provision is preempted, the restrictions on advertising within a thousand feet of a school or playground, etc., may stand.

A. Preemption Principles

The Constitution directs that the laws of the United States "shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. Art. VI, cl. 2. Under the doctrine of preemption, a corollary to the Supremacy Clause, any state or municipal law that is inconsistent with federal law is without effect. See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819). Federal law may preempt state and municipal law expressly or impliedly. See, e.g., Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 203-204 (1983). Where, as here, a statute expressly preempts state law, our task is to "identify the domain expressly pre-empted." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517 (1992).

As the Supreme Court has recently emphasized, we must read express preemption provisions in light of two well settled principles. First, our interpretation of the provision is guided by the principle that "the purpose of Congress is the ultimate touchstone in every pre-emption case," Medtronic v. Lohr, 518 U.S. 470, 485 (1996) (citation and internal quotations and alteration omitted); and we discern congressional intent not only from the language of the preemption statute, but also from the statutory framework surrounding the provision, the "structure and purpose of the statute as a whole," and our "reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law." Id. at 486 (internal quotations omitted). Second, because of federalism concerns, we must interpret Congress's intent strictly, beginning with the presumption that Congress did not intend to...