A number of tobacco trade associations and manufacturers have filed a federal lawsuit in the United States federal District Court in Rhode Island seeking a temporary restraining order and preliminary and permanent injunctions against the enforcement of two tobacco-related ordinances adopted on January 5, 2012, by the Providence, Rhode Island City Council. The case is National Association of Tobacco Outlets, Inc., et al, v. City of Providence, Rhode Island, et al., 1:12-cv-00096-ML-LDA (filed Feb. 13, 2012). One of the ordinances bans adult consumers from redeeming tobacco product coupons and also prohibits retailers from offering certain promotionally priced tobacco products, such as “buy-one, get-one free” offers (the “anti-promotion” claim). The second ordinance bans the sale of virtually all flavored cigars, smokeless tobacco and pipe tobacco products in the city (the “anti-flavor” claim). The ordinances are scheduled to take effect on March 1, 2012, unless the relief sought in the lawsuits is granted.
The legal challenges to the ordinances raise federal and state constitutional questions, including arguments that the local government’s purported legislative action is preempted by federal and state laws. At core, the lawsuit is concerned with how the right of free speech extends to commercial speech on product promotions and descriptions in advertising. Specifically, with regard to the anti-promotion claim, the lawsuit asserts that the ordinance is unconstitutional because it limits the ability of retailers and manufacturers to communicate tobacco product prices to adult consumers and is preempted by federal law because the ordinance attempts to regulate the advertising and promotion of cigarettes. With regard to the anti-flavor claim, the lawsuit asserts that the ordinance is unconstitutional because it severely limits how retailers and manufacturers may describe the taste or aroma of their tobacco products to consumers.
As federal, state and local governments increase their focus on the sale and use of tobacco, the Troutman Sanders Tobacco practice will continue to monitor developments in this area.