A lawyer for Providence, R.I., urged a federal appeals court on Monday to reject a constitutional challenge to a local ban on redemption of coupons for tobacco products. Tobacco companies remain free to distribute those coupons, he argued, even if residents are not free to redeem them.
“This case is about the tobacco industry’s attempt to circumvent two local ordinances designed to keep tobacco out of the hands of children,” Anthony Cottone, a solo practitioner who represented the city defendants, insisted before a three-judge panel of the U.S. Court of Appeals for the First Circuit.
The case is National Association of Tobacco Outlets Inc. v. City of Providence.
Two January 2012 ordinances ban tobacco product coupons, multiproduct discounts and the sale of flavored tobacco products. In December 2012, District of Rhode Island Chief Judge Mary Lisi granted the city’s summary judgment motion and disposed of the plaintiffs’ case. The named plaintiff and eight other companies, subsidiaries and associations sued the city, two departments and three officials in February 2012.
Lisi held that neither ordinance violated the plaintiffs’ First Amendment rights because they are “economic” regulations that do not limit commercial speech or expressive conduct.
The plaintiffs’ opening brief claimed that the federal Cigarette Labeling and Advertising Act pre-empts the bans. The ordinances, they argued, unlawfully restrict content, not just “the time, place, and manner” of cigarette promotion as allowed under the act. Moreover, the promotion ordinance violates the First Amendment by regulating statements about the price, they said, and the flavor ordinance attempts to supersede the Family Smoking Prevention and Tobacco Control Act by regulating smokeless tobacco and other non-cigarette tobacco products.
The city replied that the ordinances “were rationally related to the government's substantial interest” in reducing the number of nicotine-addicted young people.
Circuit Judge Juan Torruella sat on the panel with judge O. Rogeriee Thompson and Federal Circuit Judge Timothy Dyk, sitting by designation.
Concerning the pricing ordinance, Dyk noted that “two other circuits seem to say [coupons] are promotional activity.”
Cottone said that wasn’t the issue here. “We’re simply talking about the economic conduct of redeeming the coupon,” he said.
The tobacco plaintiffs’ lawyer Michael Edney, a Washington of counsel at Los Angeles-based Gibson, Dunn & Crutcher, said the distinction between redemption and distribution is meaningless. “[The ordinance] affects the content of what our flyers that go out to various consumers can say.…You have to analyze the practical effect of the regulation at issue,” he said.
Sheri Qualters can be contacted at firstname.lastname@example.org.