There are some things Mayor Bloomberg just can’t regulate.
A federal appeals court today snuffed out the city Department of Health’s mandate that all stores that sell cigarettes display graphic anti-smoking ads near the cash register.
The decision – a blow to one of Bloomberg’s most prized health initiatives – said the city cannot supercede existing federal regulations on tobacco health warnings.
“It is nice when the city gets it in the end,” said Ralph Bombardier, executive director of the New York State Association of Service Stations.
“So many things the city does need to be challenged. Unfortunately we can’t afford it. This one victory we can enjoy.”
Trade groups for gas stations and convenience stores – along with the deep pocketed cigarette manufacturers Lorillard, Philip Morris USA and RJ Reynolds – had filed suit in 2010 after the Board of Health approved the rule in 2009.
The city had demanded all shops selling smokes display one of three ads – one showing an X-ray of a cancerous lung, another showing a decaying tooth or a third of a MRI depicting a stroke-damaged brain.
But after the lawsuit was filed the city said posting the signs was voluntary.
Manhattan federal Judge Jed Rakoff initially ruled against the mandatory rulings, but the city had appealed.
The 2nd U.S. Circuit Court of Appeals ultimately ruled the city was preempted by the Federal Cigarette Labeling and Advertising Act, which was enacted by Congress in 1965.
“Today’s ruling is likely to reduce the number of smokers who quit. Despite huge strides in combating smoking in New York City, tobacco remains the city’s number one killer,” the Department of Health said in a statement.
Tobacco companies, however, said the city overstepped in authority.
“This suit has always been about who has the authority to regulate the content of cigarette warnings,” said Murray Garnick, a Philip Morris attorney. “That is a power reserved to the federal government without interference or additional efforts by state and local authorities.”