US District Judge Batts' New York City Advertising Ban Decision, December 15, 1998
US District Judge Batts' New York City Advertising Ban Decision, December 15, 1998
PDF FileUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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98 Civ. 251 (DAB)
MEMORANDUM & ORDER
THE GREATER NEW YORK METROPOLITAN FOOD COUNCIL, INC.; THE ADVERTISING FREEDOM COALITION; and THE ADVERTISING CLUB OF NEW YORK, INC.;
Plaintiffs,
-against-
RUDOLPH W GUILIANI, 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.
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APPEARANCES:
CAHILL, GORDON & REINDEL
80 Pine Street
New York, New York 10005
ATTORNEYS FOR PLAINTIFFS
Of Counsel: Floyd Abrams
Jonathan Donnellan
Joel L. Kurtzberg
Matthew A. Leish
Howard B. Tisch
MICHAEL D. HESS
Corporation Counsel of the City of New York 100 Church Street
New York, New York 10007
ATTORNEY FOR DEFENDANTS
Of Counsel: Deborah Rand
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DEBORAH A. BATTS, United States District Judge. Plaintiffs the Greater Metropolitan Food Council, Inc., the Advertising Freedom Coalition, and the Advertising Club of New York, Inc. (collectively "Plaintiffs"), challenge the validity and constitutionality of a local law restricting tobacco advertising in the vicinity of schools, playgrounds, and other premises where children congregate. Defendants Mayor Guiliani, the City of New York, Commissioner Silva and Commissioner Cerullo, would be responsible for the local law's enforcement. Both parties have cross-moved for summary judgment. For the reasons stated below, the Court hereby GRANTS summary judgment to Plaintiffs in part, and DENIES Defendants' cross motion for summary judgment in part.
I. BACKGROUND
On January 14, 1998, Defendant Mayor Guiliani signed into law the "Youth Protection against Tobacco Advertising and Promotion Act" (the "Act"). (Jt. 56.1 St. 10.) The Act was part of Local Law 3 of 1998, and was codified as Article 17-A to Title 27, Chapter 1, subchapter 7, of the New York City Administrative Code ("Article 17-A). (See Jt. Stip. Docs. Ex. 1; New York City Admin. Code 27-508.1 - 508.6, 26-126.1, 26- 126.2, 26-126.4, and 20-760.) Article 17-A prohibits outdoor
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advertisements for tobacco products within one thousand feet in any direction of a school building, playground, child day care center, amusement arcade or youth center. (See Jt. Stip. Docs. Ex. 1, at 8, Section 27-508.3.) Further, Article 17-A prohibits advertisements for tobacco products inside buildings within the same one thousand foot zone, unless they are placed in such a way that they are either parallel to the street and facing inward, or affixed to a wall perpendicular to the street. (Id.) The Act does, however, allow one so-called "tombstone" sign to be placed within ten feet of the entrance to any premises within the proscribed zone that states "TOBACCO PRODUCTS SOLD HERE:" the sign may not be larger than six square feet, and may contain only black text that is no larger than eight inches in height. (Id.) A violation of Article 17-A can result in civil penalties, and repeated violations can lead to the revocation of retail store licenses to sell tobacco. (Jt. 56.1 St. 12.) A number of public hearings were held by the City Council on the proposed law before it was signed. (Id. 16-22.) Indeed, among the Health Committee, the Youth Services Committee and the Mayor, it appears that at least six public hearings were held between June, 1997 and January, 1998, on this topic. (Id.) In the section of Local Law 3 entitled "Declaration of legislative findings and intent," the stated purpose of the
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legislation 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." (See Jt. Stip. Docs., Ex. 1, at 3.) Article 17-A refers to several local and state laws prohibiting the sale of tobacco products to minors: namely, Section 17-620 of the New York City Administrative Code, Section 139-cc of the New York State Public Health Law, and Section 260.21(3) of the New York State Penal Law. (See Jt. 56.1 St. 24.) Section 17-260 forbids the sale of tobacco products to minors, requires the posting of a sign to that effect where tobacco products are sold, and the showing of identification by buyers unless they reasonably appear to be at least twenty-five years of age. (Id. 26.) The New York City Department of Health and the New York City Department of Consumer Affairs are responsible for the enforcement of Section 17-260. (Id. 27.) The Department of Health has issued a total of seven violations over the past five calendar years, all for the failure to post the correct sign, and the Department of Consumer Affairs has issued a total of 1,521 violations over the past five calendar years with a sharp variance in frequency from a high of 785 in 1993, to a low of 90 in 1997. (Id. 27-30.) Section 1399-cc of the New York State Public Health Law is essentially identical to Section 17-260. (Id. 32.) It is
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undisputed that this law is not enforced, and no summonses for violations have been issued over the past five years. (Id. 33.) Finally, Section 260.21(3) of the New York State Penal Law states that selling tobacco in any form to a child under eighteen years of age constitutes the crime of unlawfully dealing with a child in the second degree. (Id. 34.) A total of three arrests were made under this law in the last five years, all in 1996, but no convictions have been recorded for that period. (Id. 35-37.) On the same day the Act was signed into law, Plaintiffs filed suit in this Court. Plaintiffs allege that Article 1-7A 1 places an unconstitutional restriction on commercial speech, thereby violating the First Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, Section 8 of the New York Constitution. (Compl. 30-36.) Further, Plaintiffs assert that the Act is preempted by the Federal Cigarette Labeling and Advertising Act ("FCLAA"), 15 U.S.C. 1334(b). (Id. 37-40.) After some discovery, both parties moved for summary judgment. Defendants agreed by stipulation not to enforce the Act before November 10, 1998. (Jt. 56.1 St. 15.) On November
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Plaintiffs constitute a trade association of businesses in 1 the food industry, a group of national associations of advertisers, and a New York professional association with members from the advertising field. (See 56.1 St. 1-4).
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9, 1998, the Court granted Plaintiffs' request to enjoin the enforcement of Article 17-A until a decision had been rendered on the pending motions. The Court has been assisted in its consideration of the pending motion and cross-motion by the submission of several briefs by amici curiae. 2
II. DISCUSSION Heeding the longstanding reluctance of federal courts to avoid unnecessary adjudication of constitutional issues, see United States v. National Treasury Employees Union, 513 U.S. 454, 478 (1995)(citing Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-347 (1936)(Brandeis, J., concurring)), this Court turns first to the question of whether Article 17-A is preempted by federal statutory law.
Article VI of the Constitution provides that the laws of the
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2 In support of Plaintiffs' position, amici curiae briefs were submitted by the Washington Legal Foundation, and the New York Civil Liberties Union.
In support of Defendants' position, an amicus brief was submitted by the American Cancer Society, New York City Division, Inc., Public Citizen, Inc., American Lung Association of New York State, Inc., American Heart Association of New York, Protect Our Youth, National Association of Elementary School Principals, National Association of Secondary School Principals, 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., and Medical Society of the State of New York.
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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, "any state law, however clearly within a State's acknowledged power, which interferes with or is contrary to federal law, must yield." Felder v. Casey, 487 U.S. 131, 138 (1988)(internal citations omitted). The inquiry into preemption "`starts with the assumption that the historic police powers of the States [are] not to be superseded by . . . Federal Act unless that [is] the clear and manifest purpose of Congress.'" Cipollone v. Liggett Group, 505 U.S. 504, 515 (1992)(citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). "Accordingly, `[t]he purpose of Congress is the ultimate touchstone' of preemption analysis." Id. (citing Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)).
The preemption provision of FCLAA, found in Section 1334(b), states in relevant part:
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 . . . 15 U.S.C. 1334(b). Fortunately for this Court, analysis of the preemptive scope of Section 1334(b) does not begin on a blank slate. In Vango Media v. City of New York, 34 F.3d 68 (2d Cir. 1994), the Second Circuit decided that a local law requiring the display of one public health message for every four tobacco
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advertisements displayed on certain property licensed by the City of New York, was preempted by Section 1334(b) of FCLAA. 34 F.3d at 75. The decision in Vango Media was expressly guided by the Supreme Court's analysis of the scope of Section 1334(b) in Cipollone, where despite a "splintered decision that produced three separate opinions . . . a majority nonetheless agreed upon certain core principles pertinent to the disposition of the case at hand." 34 F.3d at 72. These "core principles" to the preemption inquiry were set forth as follows: Most importantly, seven members of the Court concluded that `the pre-emptive scope of the . . . Act is governed entirely by the express language in [1334(b)]' because Congress `considered the issue of pre-emption and [ ] included in the enacted legislation a provision explicitly addressing that issue, and . . . that provision provides a `reliable indicium of congressional intent with respect to state authority.'" Cipollone, 505 U.S. at ____, 112 S.Ct. at 2618 (quoting Malone v. White Motor Corp., 435 U.S. 497, 505, 98 S.Ct. 1185, 1190, 55 L. Ed. 2d 443 (1978)). They also opined that "`there is no need to infer congressional intent to pre-empt state laws from the substantive provisions' of the legislation" because "Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted." Id. (quoting California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 282, 107 S.Ct. 683, 690, 93 L.Ed. 2d 613 (1987)). Vango Media, 34 F.3d at 72. In light of this clear guidance, the task at hand is to determine whether Article 17-A is within the domain expressly preempted by Section 1334(b). In other words, the Court must determine whether Article 17-A constitutes 1) a
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"requirement or prohibition 2) "based on smoking and health" 3) "with respect to the advertising or promotion of any cigarettes." See Vango Media, 34 F.3d at 72 (looking at the "three essential phrases" of Section 1334(b) and the relationship of each with the local ordinance in question).
A. Requirement or Prohibition
The first phrase of 1334(b) refers to a "requirement or prohibition." As stated in the Vango Media decision, the divergent opinions of the Cipollone court did unanimously agree that this phrase covers "positive enactments" of political subdivisions, such as statutes and regulations. Vango Media, 34 F.3d at 72 (citing Cipollone, 505 U.S. at 519, 112 S.Ct. at 2619- 20 (plurality opinion), 505 U.S. at 535, 112 S.Ct. at 2627 (Blackmun, J., concurring in part, dissenting in part), 505 U.S. at 548, 112 S.Ct. at 2634 (Scalia, J., concurring in part, dissenting in part)).
Article 17-A, a local law enacted by New York City that would prohibit tobacco advertisements in certain zones, is therefore within the scope of the first portion of Section 1334(b). See e.g. Rockwood v. City of Burlington, No. 98 Civ. 223, 1998 WL 656397, at *4 (D. Vt., Sept. 21, 1998).
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B. Based on Smoking and Health
The second phrase of Section 1334(b) -- "based on smoking and health" -- has sparked a heated debate in the motion papers. Defendants argue that since the express purpose of Article 17-A does not talk about smoking and health, it is not preempted by FCLAA. See Defs.' Mem. Law at 40. It is clear, however, that the Court must not rely solely on the legislator's professed motivation for writing the law for the preemption inquiry, but must also examine the law's effect. See Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 105 (1992)(holding that the federal Occupational Safety and Health Act of 1970 preempted a state law on the training, testing and licensing of hazardous waste site workers). The Supreme Court stated in Gade that "[i]n assessing the impact of a state law on the federal scheme, we have refused to rely solely on the legislature's professed purposes and have looked as well to the effects of the law." Id. at 105. Accord Vango Media, 34 F.3d at 73-74. The decision cited extensively from precedent decided "over two decades ago" to support this approach:
We can no longer adhere to the aberrational doctrine . . . that state law may frustrate the operation of federal law as long as the state legislature in passing its law had some purpose in mind other than one of frustration. Apart from the fact that it is at odds with the approach taken in nearly all our Supremacy Clause cases, such a doctrine would enable state legislatures to nullify nearly all unwanted federal
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legislation by simply publishing a legislative committee report articulating some state interest or policy -- other than frustration of the federal objective -- that would be tangentially furthered by the proposed state law. Gade, 505 U.S. at 105-06 (citing Perez v. Campbell, 402 U.S. 637, 651-652 (1971)). Therefore, notwithstanding the fact that the stated purpose of Article 17-A is to enforce laws banning the sale of tobacco products to minors, the requisite analysis is not satisfied by taking the "legislative intent" section of Local Law 3 at face value.
Plaintiffs contend that a review of the legislative history reveals that the legislators were primarily concerned with the health risks for youth who smoke when enacting Article 17-A. See Pls.' Mem. Law at 15-17. The Court agrees that the transcripts from the public hearings on Article 17-A held by the Committee on Health and the Committee on Youth Services, are "replete" with references to health concerns, made by the sponsors of Article 17-A and other Council members. In just one example, Speaker Vallone stated during the public hearings held by the Health Committee, that "[o]ur kids have a right to grow up healthy, and we as adults have the obligation to help them do so [. . . ] [s]o this City Council is once again going to do its share to meet that obligation." See Jt. Stip. Docs. Ex. 4, at 11. Indeed, the more accurate characterization would be that the majority of
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references in the hearings are devoted to decrying the use of advertising to entice children to smoke, thereby exposing them to addiction, and the many tobacco-related illnesses. See generally Jt. Stip. Docs. Exs. 4-8.
Defendants argue that the declaration of legislative intent "makes it clear that the primary purpose of the law is to decrease the illegal sales" of tobacco products, and "although health related concerns are mentioned in the document, they are secondary and supporting elements." See Defs.' Reply at 6.
The Court is not persuaded that the ranking of purposes in this fashion is borne out by the record. 3 Furthermore, the distinction Defendants attempt to erect between the two purposes
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3 Moreover, even if the primary/secondary nomenclature were 3 supported, Defendants' appear to be relying too heavily on dicta from Vango Media to distinguish the instant case. The Second Circuit stated in Vango Media that the City's purported economic motivations behind the ordinance occupied a "secondary role" to the "primary interest" of public health, and therefore, the ordinance was "based on smoking and health" for preemption purposes. 34 F.3d at 73. These terms were utilized in the context of the Gade analysis that stated "our precedents leave no doubt that a dual impact state regulation cannot avoid [. . .] preemption simply because the regulation serves several objectives rather than one." 505 U.S. 88, at 106. Indeed, "whatever the purpose or purposes of the state law, preemption analysis cannot ignore the effect of the challenged state action on the pre-empted field [. . . ] the key question is thus at what point the state regulation sufficiently interferes with federal regulation that it should be deemed pre-empted." Id. at 106-107. Whether or not one purpose can be ranked above the other is therefore beside the main point of whether or not the impact of the ordinance will fall within the preempted arena.
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collapses once it is recognized that the underlying purpose of laws banning sales of cigarettes to minors is public health. 4 In the hopes of the legislators and in practical effect therefore, the impact of Article 17-A would be to lessen the chance that youth would take up smoking and be exposed to the concomitant health dangers. Other courts faced with comparable justifications for local ordinances threatened with preemption by FCLAA have come to similar conclusions. See Federation of Advertising Indus. Reps. v. City of Chicago, 12 F.Supp. 2d 844, 850-852 (N.D.Ill. 1998)(finding distinction between goal of enforcing ban on sales and of promoting public health evaporated where goal of sales ban was also to promote public health); Rockwood, 1998 WL 656397, at *5 ("[i]t strains credulity to adopt the rationale that the City's Ordinance is unrelated to smoking and health, merely because the City has stressed its purpose of reducing illegal activity by minors").
Defendants also argue that "the fact that the laws banning such sales may have been enacted, in part, because the City wished to protect children's health is of no moment with respect to the issue of preemption since Congress . . . expressly stated
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4 Defendants do not dispute that the existing laws banning 4 the sales of cigarettes to minors were compelled by the serious health problems associated with smoking. See Pls. Opp. at 9, n. 6.
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that laws prohibiting sales to minors are not preempted." See Defs.' Mem. Law at 39, n. 20. In support, Defendants refer the Court to the following portion of the Senate Report for FCLAA: The State preemption of regulation or prohibition with respect to cigarette advertising is narrowly phrased to preempt only State action based on smoking and health. It would in no way affect the power of any State or political subdivision of any State with respect to the taxation or the sale of cigarettes to minors, or the prohibition of smoking in public buildings, or similar police regulations.
See Defs.' Mem. Law at 39, citing S. Rep. No. 91-566, 91st Cong., 2d Sess. reprinted in 1970 U.S. Code Cong. & Ad. News, 2652, 2663 (emphasis added). The fact that such police regulations banning sales of cigarettes to minors do not fall under the preemptive scope of FCLAA is not in dispute. It is also not in dispute that those kind of police regulations are clearly not related to the advertising and promotion of cigarettes, whereas Article 17-A may well be. That distinction defeats Defendants argument. See Vango Media, 34 F.3d at 74-75 ("while sales restrictions and smoking prohibitions have little in common with advertising or promotion, the Local Law directly impacts advertisers and promoters because it imposes conditions on their display of cigarette advertisements").
Therefore, since laws banning sales of tobacco products to minors have been implemented due to public health concerns, since the legislative history of Article 17-A reveals the health
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dangers posed to youth from smoking was of paramount importance in enacting the ordinance, and since the practical effect of the Article 17-A would be to restrict youth access to tobacco in order to reduce the incidence of smoking among youth in order to protect their health, the Court concludes that Article 17-A is "based on smoking and health."
C. With Respect to the Advertising or Promotion of Any Cigarettes
Whether the third phrase of Section 1334(b) -- "with respect to the advertising or promotion of any cigarettes" -- is appropriately applied to Article 17-A, has engendered the deepest split of opinions in this litigation.
Defendants 5 insist that the appropriate reading of this phrase is that only those requirements or prohibitions that affect the "content" of tobacco brand advertising are preempted, but those laws that delineate the "location" of such advertising are outside of the scope of FCLAA's preemption provision. See Defs.' Amic. at 2. This content/location distinction is touted for its ease of comprehension, and that it "frees courts from the
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5 This argument is taken on in particular depth by the amici 5 curiae in support of the Defendants' position. See Mem. Law of Amici Curiae in Support of Youth Protection Against Tobacco Advertising and Promotion Act ("Defs.' Amic."), at 2.
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business of determining legislative purpose." Id. As tempting as this sounds, the Court finds no support for such a distinction, either in FCLAA itself or in the precedent that is binding on this Court.
Faced with a similar content/location argument, the Second Circuit found no basis to restrict the preemptive scope of 1334(b) to those regulations that affect content. See Vango Media 34 F.3d at 73-74. The explicit language of 1334(b) -- "with respect to" -- connotes a broad preemptive effect. Id. at 74 (analyzing both Supreme Court precedent and dictionary definitions). The expressed intent of FCLAA was to avoid "diverse, nonuniform, and confusing labeling and advertising regulations with respect to any relationship between smoking and health." Id. at 74 (citing Cipollone, 505 U.S. at 519, 112 S.Ct. at 2619). To the Second Circuit, this phrase did not leave room for the ordinance under review to evade the preemptive scope of 1334(b). Id. ("[i]n requiring permit holders who display cigarette advertising also to display anti-smoking messages, the [ordinance] treads on the area of tobacco advertising, even if it does so only at the edges").
Defendants seek to distinguish the Vango Media precedent as relevant only to regulations that effect the content of cigarette advertising. See Defs.' Amic. at 10. Defendants argue that the
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ordinance analyzed by the Second Circuit "would have altered the message of cigarette brand advertising" by requiring the periodic display of anti-smoking messages, and contend that Article 17-A, by contrast, "neither dictates advertising content nor forces any tobacco advertiser to communicate any message against its will." Id. The Court does not believe such a bright-line distinction can be drawn between Article 17-A and the ordinance analyzed in Vango Media. In one sense, the ordinance in Vango Media has more effect on content, because the permit holders would have been required to present a content-specific message (i.e. anti-smoking) for every four advertisements promoting tobacco. However, there would have been no change in the actual tobacco advertisements themselves. Indeed, the Second Circuit stated in Vango Media, that "the actual cigarette advertisements would not look different were we to permit the City to impose the mandated public health messages[,] [n]onetheless advertisers and promoters [...] would be substantially impacted by the [ordinance's] requirements." 34 F.3d at 74. This finding, the court noted, was mandated by the "more expansive reach" of the amendments to 1334(b). Id. at 74.
While it is true that the instant facts differ from those of Vango Media in that Article 17-A does not impose the issuance of an anti-smoking message on advertisers, Article 17-A would still
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have a substantial impact on the advertisers and promoters by limiting severely those areas where their advertising could be placed. As set forth in Vango Media, Article 17-A "directly impacts advertisers and promoters because it imposes conditions on their display of cigarette advertisements." 34 F.3d at 75. Given the broad interpretation accorded 1334(b) by the Second Circuit and the broad impact that would be felt by the implementation of Article 17-A, the Court sees no basis for Article 17-A to evade preemption.
Defendants rely heavily on the Fourth Circuit case of Penn Advertising of Baltimore, Inc. v. Mayor of Baltimore to support the application of the content/location distinction. 63 F.3d 1318 (4th Cir. 1995), vacated on other grounds, 518 U.S. 1030, on remand, 101 F.3d 332 (4th Cir. 1996), cert. denied, 117 S.Ct. 1569 (1997). In Penn Advertising, the Baltimore ordinance banned cigarette advertising in any "publicly visible location," with exceptions for buses, taxis, commercial vehicles used to transport cigarettes, businesses licensed to sell cigarettes, and in certain commercial and industrial zones of the city. 63 F.3d at 1321. On the question of preemption by FCLAA, the Fourth Circuit concluded that the local law was not preempted since it "limits only the location of signs that advertise cigarettes, but it does not address the content of such advertisements." Id. at
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1324. The court cited to the following support for its narrow reading of FCLAA preemption:
Were the preemption provision to be interpreted so broadly, the Supreme Court in Cipollone could not have allowed the continued prosecution of common law claims for breach of express warranty, misrepresentation, intentional fraud, and conspiracy -- all of which relate generally to the effects on health of promoting the sale of cigarettes. Id. at 1324 (citing to Cipollone, 505 U.S. at 523-31, 112 S.Ct. at 2621-25). While the Court agrees with Defendants that the Baltimore ordinance challenged in the Fourth Circuit has much in common with Article 17-A, the Court finds the reasoning of that decision unpersuasive, especially in light of the clear guidance to the contrary by the Second Circuit in Vango Media. See Federation of Advertising Indus. Reps., 12 F.Supp. at 847 (declining to follow Penn Advertising, noting that the content/location distinction utilized is not found anywhere in the congressional language of FCLAA).
Even as the Court finds the content/location distinction put forth by Defendants as misaligned with the teaching of Vango Media, the adoption of Defendants' distinction would still not lead the Court to an alternate result.
Article 17-A does not appear to fit the description of an ordinance that "regulate[s] only the location or placement of outdoor tobacco advertising."
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See Defs.' Amic. at 10. 6 Article 17-A would allow only so-called "tombstone" signs within ten feet of the entrance to any premises selling cigarettes, with strict limits on the text, size and format. Two cases cited by the parties have addressed similar local laws with tombstone requirements, and have resulted in different conclusions. In Chiglo v. City of Preston, 909 F.Supp. 675, 678 (D. Minn. 1995), the district court found an ordinance that banned all tobacco brand advertisements inside retail stores except for generic tombstone signs for the interior and exterior of stores selling cigarettes, as preempted by FCLAA. In so doing, the court found that the provisions mandating the content of tombstone signs distinguished the law from the pure location prohibitions addressed in Penn Advertising, where "the ordinance [. . .] directed tobacco billboards, regardless of their content, away from residential neighborhoods." 909 F.Supp. at 678. The court also expressly adopted the Vango Media finding that the existence of one permissible goal for an ordinance did not save it from preemption where it was still based on smoking and health. Id. at 678. In contrast, the court in Lindsey v. City of
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6 Defendants have divided up various ordinances that have 6 undergone litigation into three categories: 1) laws that regulate only the location of outdoor tobacco advertising; 2) laws that affect the content of tobacco advertising; and 3) laws that disseminate tobacco product consumer information. See Defs.' Amic. at 8-14.
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Tacoma, No. C97-5076 (RJB), slip. op. at 10-14, 1997 U.S.Dist. LEXIS 20952, *27 (W.D. Wash. Nov. 6, 1997), found that a Tacoma local law prohibiting all outdoor advertisements of tobacco products but allowing the posting of price and availability information in tombstone format outside licensed retailers, was not preempted by Section 1334(b) of FCLAA. Specifically, the court found the absence of an "imposition of a duty or condition for cigarette advertisements, only a limitation on their location and format" distinguished the case from Vango Media. Id. The court also stated that the local law did not "impact the content of those advertisements as to the warning information," and "even [the section which] dictates the format for tombstone advertisements, does not prescribe the content of those advertisements [but] simply requires that tombstone advertisements state `truthful, factual information . . ..'" Id. at 23. Not surprisingly, both parties claim the favorable holding for their side represents the correct interpretation of ordinances with provisions for tombstone signs. The instant case differs from that of Lindsey in so far as Article 17-A does specify the exact content of the tombstone signs. See Jt. Stip. Docs., Ex. 1, at 8. Therefore, the Court finds the Chiglo holding to be more on point. The bottom line, however, is that
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under Article 17-A, the only allowable advertisement of tobacco products in certain locations would be a uniform statement dictated by the City. The Court is not persuaded that by characterizing the tombstone signs as "simply informational notices with respect to the nature of the store," it can be concluded that Article 17-A does not impose content restrictions on advertisements. See Defs.' Mem. Law at 17, n. 9. The term "advertisement" -- defined in Black's Law dictionary as "notice given in a manner designed to attract public attention" -- is not so narrow to indicate only "product advertisements [. . . that] sell a particular brand." Id. While it is true that cigarette manufacturers will usually only promote consumption of their own brand, this reality does not mean that an announcement that cigarettes are for sale in a store does not still serve the same purpose of promoting the sale of cigarettes. See e.g. Article 17-A, 27-508.2(m), Jt. Stip. Docs. 1, at 7, defining "tobacco product advertisement" as having "the purpose or effect . . . to promote the use or sale of a tobacco product." To argue that such a law does not effect the content of advertisements appears to fly in the face of logic.
Defendants also contend that the content/location distinction comports with the intent of Congress in passing FCLAA, a point that Plaintiffs challenge. See Defs.' Amic. at 3-
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8; Pls.' Opp. at 18-19. The Court sees no need to address these arguments, however, 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, and have provided detailed analyses of the scope of that provision. See Vango Media, 34 F.3d at 72. 7
Accordingly, the Court finds that Article 17-A qualifies as a requirement or prohibition based on smoking and health, with respect to the advertising or promotion of cigarettes, and is therefore expressly preempted by Section 1334(b) of FCLAA.
D. Severance
In a footnote in Defendants' opposing brief, Defendants remark "it must be noted that to the extent the Tobacco Advertising Act is preempted, the preemption would only apply to the portion of the Act dealing with cigarette advertisements since the Federal Act only covers cigarettes, the packages of which contain mandated warnings." Defs.' Opp. Br. at 27, n.18..
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7 The Court does note, however, that Defendants' contention 7 that Senator Frank Moss of Utah "surely would have spoken against" the FCLAA 1969 Amendment if it had been understood to preempt local restrictions on the location of advertisements, in light of Utah's 1969 law banning all outdoor and point-of-sale tobacco advertisements, is not persuasive. See Defs.' Amic. at 5- 6. 22
No further argument is offered on this topic by Defendants. 8
Article 17-A applies by its terms to any "tobacco product advertisement," where "tobacco product means a cigarette, smokeless tobacco or cigarette tobacco." 9 See Jt. Stip. Doc. 1, at 7, 27-508.2(l), 27-508.3. FCLAA applies only to cigarette packaging. See generally 15 U.S.C. 1332(1), 1333. 10 Defendants appear to ask that if FCLAA preemption is found, for the Court to sever those portions of Article 17-A that apply to cigarettes from other tobacco products.
Whether severance is appropriate is governed by New York
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8. Defendants do mention severance, again in a footnote, in 8 the context of the tombstone sign provision of Article 17-A. See Defs.' Reply at 5, n.1.
9. "Cigarette tobacco" is defined as "any product that 9 consists of loose tobacco and is intended for use by consumers in a cigarette." See Jt. Stip. Doc. 1, at 6, 27-508.2(d)
10. The "Comprehensive Smokeless Tobacco Health Education Act" 10 (the "Act"), 15 U.S.C. 4401-4408, applies similar requirements as FCLAA on the packaging of smokeless tobacco products. See 15 U.S.C. 4402; see generally Brown & Williamson Tobacco Corp. v. Food and Drug Administration, 153 F.3d 155, 174-175 (4th Cir. 1998)(discussing statutory provisions and comparison to FCLAA); Public Citizen v. Federal Trade Comm'n, 869 F.2d 1541, 1553-1557 (D.C.Cir. 1989)(same). At least one court has found that the language of the Act's preemption provision is significantly narrower than that of FCLAA. See 15 U.S.C. 4406(b); Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 77 (1st Cir. 1997); see also Cipollone 505 U.S. at 520 (plurality) (finding "with respect to" language of FCLAA preemption broader than the "in the advertising of" phrase of the earlier version). However, since the parties do not address this, and it is not necessary to the Court's decision, the Court will not rule on this issue.
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law. National Advertising Co. v. Town of Niagara, 942 F.2d 145, 148 (2d Cir. 1991). Under New York law, there is a preference to sever in lieu of invalidating the entire statute. Id. at 148. "Although the presence of a severability clause is not dispositive, the preference for severance is particularly strong when the law contains a severability clause." Gary D. Peake Excavating, Inc. v. Town Board of Hancock, 93 F.3d 68, 72 (2d Cir. 1996)(internal citations omitted). The New York standard is as follows:
The question is in every case whether the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether. The answer must be reached pragmatically, by the exercise of good sense and sound judgment, by considering how the statutory rule will function if the knife is laid to the branch instead of at the roots.
People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48, 60 (1920), cert. denied, 236 U.S. 702 (1921). In other words, "severance is inappropriate when the valid and invalid provisions are so intertwined that excision of the invalid provisions would leave a regulatory scheme that the legislature never intended." New York State Superfund Coalition, Inc. v. New York State Dep't of Envtl. Conservation, 75 N.Y.2d 88, 94, 550 N.Y.S. 2d 879, 881 (1989). Article 17-A does contain a general severability clause. See Jt. Stip. Doc. 1, at 12, 10. However, the Court finds that
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the treatment of cigarettes and other tobacco products within Article 17-A is so intertwined, that severance is not possible without perverting the apparent intent of the Council. Defendants have not pointed to support in the legislative record for their assertion that the Council would accomplish its intent by applying the ordinance only to non-cigarette tobacco products. Indeed, parties have not directed the Court to any part of the hearings on Article 17-A that dealt specifically with tobacco products that are not cigarettes. In the section of Article 17-A entitled declaration of legislative intent, references to the impact of advertising on youth focus on cigarette advertising and cigarette smoking. Indeed, while the five-page section contains abundant references to the increase in cigarette smoking among youth, there is only one short paragraph referring to similar increase in the use of smokeless tobacco by youth. See id. at 2. On this record, the Court cannot conclude that the purported legislative agenda to increase the enforcement of laws banning sales of tobacco products to minors would be accomplished by enacting the restrictions of Article 17-A to smokeless tobacco and loose tobacco alone. See e.g. Federation of Advertising Indus. Reps., 12 F.Supp 2d at 852-53 (where the legislative record treated of restrictions on cigarette and alcohol as a "paired entry" or as focusing solely on cigarettes, alcohol
25
advertising restrictions of local ordinance did not survive invalidation of ordinance under FCLAA preemption). Cf. Rockwood, 1998 WL 656397, at *11 (allowing for severance where prohibition against "self-service" tobacco sales displays was capable of being executed in accordance with city's legislative intent of reducing underage tobacco use, and independently of pre-empted portions of cigarette advertising restrictions). Accordingly, Defendants request for severance is denied.
III. CONCLUSION
For the above stated reasons, Plaintiffs motion for summary judgment is GRANTED on the grounds of federal preemption. Defendants' cross-motion for summary judgment on those same grounds is DENIED. Defendants' request to sever those portions of the challenged ordinance that apply to tobacco products other than cigarettes is DENIED. In light of this finding, the Court has not reached the parties constitutional arguments. In accordance with Plaintiffs' prayer for relief in the Complaint, the Court DECLARES that Article 17-A of Title 27 of the Administrative Code of the City of New York is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. 1334(b), and the Supremacy Clause of the United States
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Constitution, Article IV, clause 2, and therefore, is without force or effect. Defendants are permanently enjoined from enforcing Article 17-A.
The Clerk is directed to close the docket in this matter. SO ORDERED.
Dated: New York, New York
December , 1998
_____________________________
Deborah A. Batts
U.S.D.J.
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