NATO, Tobacco Manufacturers File Suit to Protect Right to Advertise

Worcester, Mass., seeks to ban outdoor, in-store tobacco ads

WORCESTER, Mass. -- On Friday, June 17, the National Association of Tobacco Outlets (NATO), R.J. Reynolds Tobacco Co., Philip Morris USA Inc. and Lorillard Tobacco Co. filed a lawsuit 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 that would ban virtually all outdoor and indoor tobacco advertising, said Thomas Briant, NATO executive director, in the latest issue of Tobacco E-News.

Specifically, the ordinance prohibits any person from "[image-nocss] 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 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."

The ordinance prohibits all outdoor tobacco advertising and all indoor tobacco advertisements displayed in a retail store that can be viewed from the street (e.g., through a window). This ordinance bans advertisements for all tobacco products, not just cigarettes.

The ordinance was adopted by the Worcester City Council on May 10; it is scheduled to take effect on Friday, June 24.

The lawsuit seeks an order declaring that the ordinance violates the First Amendment of the U.S. Constitution that protects 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 three tobacco manufacturers filed this lawsuit to protect the right to continue to advertise legal tobacco products at retail stores.

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