When the Massachusetts city of Worcester (“Wustah” to locals) took on the entire tobacco industry last May by adopting an ordinance banning all tobacco advertising visible from public streets, the city’s lawyers knew they were in for a fight. They got it just one month later, when a coalition of tobacco companies and an industry group sued the city for a declaration that the ordinance is unconstitutional. And now the fight may already be over.
The tobacco industry’s lawyers at Jones Day, Gibson, Dunn & Crutcher, and Greenberg Traurig scored a direct hit on Monday, when Boston federal district court judge Douglas Woodlock ruled that the ordinance violated the companies’ First Amendment rights. (The 23-page opinion, dated March 31 but released Monday, is here.)
Judge Woodlock determined that, just like a Massachusetts outdoor advertising ban that the U.S. Supreme Court struck down in 2001 in Lorillard v. Reilly, Worcester’s prohibition was overly broad and would restrict legal activity. Applying a four-part analysis from the Supreme Court’s 32-year-old Central Hudson ruling, the judge found that the city’s interest in curbing tobacco use among minors wasn’t substantial enough to overcome the defendants’ rights to market legal tobacco sales to adults.
The judge’s citations to Lorillard and Central Hudson came as no surprise to Worcester city solicitor David Moore, the lead lawyer defending the ordinance. But Moore told us Monday that Judge Woodlock completely ignored the city’s core argument for why neither of those cases should be fatal to Worcester’s advertising ban: By passing the federal Family Smoking Prevention and Tobacco Control Act in 2009, the city asserted, Congress gave states and municipalities broad latitude to restrict tobacco sales, repealing federal preemption of such restrictions and allowing cities like Worcester to target their efforts at adults as well as minors.
“After [Congress passed the 2009 law], the city said we can now address smoking by both minors and adults,” Moore said. “If you just read Monday’s decision you’d never know that was one of our key arguments.”
Moore acknowledged that the city was “pushing the envelope” with its ordinance and that he knew of no other attempt to ban all tobacco advertising, even in stores, that can be seen from the street. Worcester, he said, had the highest smoking rates in the state. “Five people die from cigarettes every week in Worcester,” he said. “Our whole effort is to get it down to zero.” Moore said the city hadn’t decided whether to appeal Judge Woodlock’s ruling or to amend its ordinance.
Lawyers for the tobacco companies either didn’t respond to our queries or declined to comment. The tobacco industry’s lineup includes Traci Lovitt, Noel Francisco, and Craig Chosiad of Jones Day (for RJR); Mark Schonfeld, Michael Edney, and Miguel Estrada of Gibson Dunn (for Philip Morris and the National Association of Tobacco Outlets); and A. John Pappalardo, Alan Mansfield, and Stephen Saxl of Greenberg Traurig (for Lorillard).
Philip Morris parent Altria issued this statement from associate general counsel Murray Garnick: “Tobacco companies have a constitutional right to communicate with adult consumers through retail advertising and this court appropriately recognized that.”
(Note: In an earlier version of this story we misspelled Worcester as Worchester. We regret the error.)