23-34 94th St. Grocery Corp., et al. v. New York City Board of Health, et al.

Case Updates

The Second Circuit unanimously affirmed the district court’s decision invalidating the New York City tobacco advertising regulation, which required retailers to display anti-tobacco messages. NCLC's brief had argued that Congress expressly preempted such tobacco regulations, and warned that allowing localities to second-guess Congress would needlessly subject regional and national retailers to a patchwork quilt of regulations. The Second Circuit did not address whether the New York City regulation violates the First Amendment by unconstitutionally compelling retailers to disseminate the government’s messages about consumer goods.

NCLC urged the Second Circuit to hold that New York City’s graphic warning ordinance, requiring retailers to display anti-tobacco messages, is preempted by the Federal Cigarette Labeling and Advertising Act. In its brief, NCLC argued that the U.S. Supreme Court has effectively abandoned the so-called “presumption against preemption,” a legal doctrine occasionally employed in order to improperly find that state and local laws are not preempted, despite express language from Congress to the contrary. NCLC's brief warned that allowing localities to second-guess Congress would needlessly subject regional and national retailers to a patchwork quilt of regulations. The case is also an important test of Free Speech limitations on the ability of the government to compel retailers to disseminate the government’s messages about consumer goods.