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Cigarette makers sue over ad ban

New Worcester ordinance is putting a federal law to the test

Under Worcester’s new smoking ordinance, ads for tobacco products like these in the windows of Tony’s News on Main Street will be prohibited. But the ordinance is being challenged in court. Under Worcester’s new smoking ordinance, ads for tobacco products like these in the windows of Tony’s News on Main Street will be prohibited. But the ordinance is being challenged in court. (Ellen Harasimowicz for The Boston Globe)
By Erin Ailworth
Globe Staff / June 23, 2011

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The nation’s three biggest tobacco companies are taking aim at part of a new Worcester antismoking ordinance that would dramatically limit advertising of tobacco products.

The citywide ban would prohibit any signs visible from the street that entice buyers to purchase specific cigarette brands like Marlboro or Camel, or tobacco products. Retailers would be allowed to advertise only that they sell cigarettes in general.

Philip Morris USA Inc., R.J. Reynolds Tobacco Co., and Lorillard Tobacco Co., along with the trade group National Association of Tobacco Outlets Inc., last week filed suit against the city in federal court, arguing the ban violates freedom of speech rights by severely limiting how they advertise a legal product.

Historically, tobacco companies have prevailed in such cases. But a 2009 change in federal law strengthened communities’ regulatory muscle and could bolster Worcester’s case and provide a model for other communities, said Richard A. Daynard, a law professor at Northeastern University. He said congressional findings in that law about how tobacco ads lead youths to smoke, and the ineffectiveness of current advertising restrictions, could influence the court.

“As Worcester goes, so goes the nation — maybe,’’ said Daynard, who is also president of the law school’s Public Health Advocacy Institute. “I think they could do it — in theory, I think they could.’’

The Worcester City Council approved the tobacco advertising ban last month, over concerns that such ads were contributing to a high incidence of smoking in the city, the second largest in Massachusetts. Nearly one-fourth, or 24 percent, of Worcester adults smoke, compared with a state average of 16 percent, according to city health statistics.

“The smoking rate in Worcester today is about where the state smoking rate was 20 years ago,’’ said Dale Magee, the city’s public health commissioner.

City officials said they expected a legal challenge, given issues involving the Constitution’s First Amendment, which guarantees freedom of speech. Tobacco interests have succeeded in overturning similar bans. In 2001, for example, the US Supreme Court affirmed a lower court decision that struck down as too broad a Massachusetts regulation prohibiting outdoor advertising of tobacco products within 1,000 feet of a school or playground.

But David M. Moore, Worcester’s city solicitor, said officials believe the Family Smoking Prevention and Tobacco Control Act, approved by Congress in 2009, “rewrote the whole landscape’’ by giving local governments greater authority to regulate tobacco marketing based on “smoking and health ’’ concerns for the entire population, not just to protect children.

Courts have given communities greater latitude to regulate tobacco advertising aimed at children. “Congress in 2009 said you can worry about everybody,’’ Moore said.

But some First Amendment specialists question whether Worcester’s ban will survive, especially given previous court rulings.

“I think it’s dead on arrival [because] it’s not a regulation that’s aimed at false or deceptive advertising, it’s not a regulation that’s aimed at unlawful activities,’’ said Jonathan M. Albano, a partner at Bingham McCutchen LLP in Boston, who has also represented the Globe on First Amendment issues. “Unless and until we make tobacco products illegal, allowing bans on advertisements like this would mean you could apply it to other activities that are disfavored by some, but are not illegal.’’

Dan Jaffe, a spokesman for the Association of National Advertisers Inc., a trade group, agreed that Worcester’s ban, if found constitutional, would curtail companies’ freedom to advertise. “You cannot make a product legal and then say no one can hear about it,’’ Jaffe said.

If Worcester succeeds in implementing its law, it could have national implications on how companies and retailers market tobacco products, according to the National Association of Tobacco Outlets.

“If we allow one city to get away with interpreting the Constitution of the United States in the way they want to, it will potentially have a domino effect,’’ said Andrew Kerstein, the trade group president.

The ban was supposed to take effect tomorrow, but has been delayed while the court considers a request by tobacco companies and the National Association of Tobacco Outlets to halt the ban.

“What it boils down to for us is that this ordinance is not about youth tobacco prevention, rather it’s about prohibiting communication about a legal product to adults who choose to use tobacco,’’ said David Howard, a spokesman for R.J. Reynolds. “It’s not just a matter specific to Worcester.’’

Erin Ailworth can be reached at eailworth@globe.com or on Twitter at @ailworth.

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