SAN DIEGO – The city of San Diego has repealed many of its tobacco advertising restrictions because they violate First Amendment free-speech protections and some other federal regulations, reported The San Diego Union-Tribune.
San Diego officials were alerted to the problem by the National Association of Tobacco Outlets (NATO) last summer, when the city extended its restrictions on tobacco products to electronic cigarettes and vaping juice.
“Advertising is how manufacturers and retailers speak to their customers about products,” Thomas Briant, the association’s executive director, told the newspaper. “It is important to understand that the U.S. Supreme Court has held that product advertising, including the advertising of tobacco products, constitutes commercial speech and is thus afforded First Amendment constitutional protections.”
Click here to view Briant's 2014 letter to the San Diego City Council.
The repeal, which the City Council approved unanimously, doesn’t affect regulations on where tobacco products are sold or where use of them is banned, which includes beaches, parks, boardwalks, fishing piers, airports, enclosed public spaces, sidewalk cafes and sports venues.
But the city can no longer enforce 1,000-foot buffer zones for tobacco advertising around schools, libraries, arcades, recreation centers and child-care facilities, said the report.
Those zones appear to be unconstitutional based on a 2001 U.S. Supreme Court ruling that commercial speech is protected as long as it is truthful and promotes products that are legal, Deputy City Attorney Linda Peter said.
The city can continue to enforce rules prohibiting placement of tobacco products or e-cigarettes within two feet of candy, soda and other products that attract minors.
But a city rule prohibiting advertising for such products within four feet of the floor had to be repealed because such restrictions were ruled unconstitutional by the Supreme Court.
Peter, who wrote a 12-page memorandum of law on the issue, said the city could adjust its commercial sign rules to restrict advertising for tobacco and e-cigarettes, but that such rules would also apply to ads for other products. In addition, the city could tighten zoning rules that restrict where those products are sold or regulations governing where they can be used.
“The city is not left without options in preventing and discouraging use of tobacco products and electronic cigarettes by minors,” she wrote.
Click here to view the full Union-Tribune report.
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