As reported in the Boston Globe, the City of Worcester seems to be among one of the first localities to take advantage of powers provided by the federal 2009 Family Smoking Prevention and Tobacco Control Act. That Act allows not only states but also localities to impose “specific bans or restrictions on the time, place and manner” of cigarette advertising. The Worcester City Council, taking advantage of such provisions enacted a local ordinance banning any tobacco brand advertising visible from streets, parks and schools. The initiative for the City Council action was a mounting campaign by teenagers who had statics regarding not only the health effect of smoking but also how outdoor advertising was concentrated in low-income communities, especially in communities of color.The ordinance however has already been attacked in a federal court action filed by Philip Morris, R.J. Reynolds, Lorillard and the National Association of Tobacco Outlets. The basis of the suit is centered on the Commercial speech doctrine protected by the First amendment. Can the City show the required substantial interest in burdening commercial free speech rights? The test, as described in the Boston Globe, is whether the City can act to protect teens of if “Big Tobacco [can] continue to peddle death at every storefront, as America’s most insidious graffiti artist” –referencing the store front ads for tobacco.
The interesting issue however, one that should be worthy of study and perhaps litigation, is whether in states like Virginia and others that have a strict Dillon Rule adherence (localities can exercise only those rights provided by the state) (Approximately 39 states maintain the Dillon Rule in one form or another, the others maintaining a “home rule” approach—localities can exercise any authority not prohibited), can the Federal government grant to localities powers that the State has not provided. For example under Virginia’s Clean Indoor Act, localities can enact ordinances on smoking but they cannot provide restrictions more stringent than what State law allows. Can the Federal government now come along and grant localities powers that the states have not provided? Under provisions of various state constitutions as well as the 9th or 10th amendments to the Constitution of the United States, an affirmative answer to that question may be in doubt.
For questions and/or comments, please contact Bryan Haynes, at 804.697.1420 or by email.