A federal court in Massachusetts has ruled unconstitutional an ordinance that banned outdoor advertising of tobacco products in the City of Worcester, Massachusetts. Following a relatively straightforward application of U.S. Supreme Court precedent, the court in National Association of Tobacco Outlets, Inc. v. City of Worcester found the ban to be an unconstitutional restriction on tobacco manufacturers’ and retailers’ free speech rights.
The ordinance broadly prohibited any advertising of any tobacco product, where that advertising could be viewed from a city street. The Supreme Court had decided in a previous case, Lorillard Tobacco Co. v. Reilly, that virtually identical speech restrictions were unconstitutional. In Reilly, the advertising restrictions were actually narrower than the Worcester restrictions, prohibiting tobacco advertising within 1,000 feet of a school or playground, as opposed to prohibiting advertising altogether. The City offered no viable basis for distinguishing the Reilly precedent.
As cities and towns become more active regulating the sale and advertising of tobacco products, retailers and manufacturers may end up spending considerable precious resources challenging such measures when the run afoul of the law, even where existing precedent makes clear that such measures never should have been enacted in the first instance.