NATO and Three Tobacco Manufacturers File Lawsuit to Protect Right to Advertise

Massachusetts city seeks to ban outdoor and in-store tobacco advertising

On Friday, June 17th, a lawsuit was filed by NATO, R.J. Reynolds Tobacco Company, Philip Morris USA Inc. and Lorillard Tobacco Company in U.S. Federal District Court in Massachusetts seeking a preliminary and permanent injunction against an ordinance adopted on May 10, 2011, by the Worcester, Mass., City Council, which would ban virtually all outdoor and indoor tobacco advertising.

Specifically, the ordinance prohibits any person from "display[ing] any advertising that promotes or encourages the sale or use of cigarettes or other tobacco products in any location where any such advertising [image-nocss] can be viewed from any street or park shown on the Official Map of the city or from any property containing a public or private school or property containing an educational institution."

That is, the ordinance prohibits (1) all outdoor tobacco advertising, and (2) all indoor tobacco advertisements displayed in a retail store that can be viewed from the street (e.g., through a window). It is important to note that this ordinance bans advertisements for all tobacco products, not just cigarettes. While the ordinance was adopted by the Worcester City Council on May 10th, the ordinance is scheduled to take effect on Friday, June 24th.

The lawsuit seeks an order declaring that the ordinance violates the First Amendment of the U.S. Constitution thatprotects free speech, including commercial speech in the form of product advertising. In 2001, a U.S. Supreme Court decision struck down a Massachusetts state law that prohibited outdoor advertising of tobacco products within 1,000 feet of a school or playground.

In this case titled Lorillard Tobacco Company v. Reilly, the U.S. Supreme Court held that "so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information."

The Worcester, Mass., city ordinance is even more restrictive than the Massachusetts statewide law overturned by the U.S. Supreme Court in the Lorillard case. NATO and the threetobacco manufacturers filed this lawsuit to protect the right to continue to advertise legal tobacco products at retail stores.

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