A New York City regulation requiring store owners who sell cigarettes to post gruesome images of lung disease, brain damage and decaying teeth and gums from smoking was ruled invalid yesterday. Southern District Judge Jed Rakoff ruled that Article 181.19 of the New York City Health Code, which requires the advertising at the point-of-sale for cigarettes, including “a pictorial image illustrating the effects of tobacco use,” is preempted by the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §§1331-1341. The judge’s decision came in 23-34 94th Grocery Corp. v. New York City Board of Health, 10 Civ. 4392, a suit brought by cigarette manufacturers, two city retailers and two trade associations representing city tobacco retailers. “Even merchants of morbidity are entitled to the full protection of the law,” Judge Rakoff said in a 15-page opinion yesterday. “Here, as a result, an otherwise laudable New York City health regulation designed to alert cigarette purchasers, at the very point of purchase, to the grave dangers of tobacco use must be declared invalid because it imposes burdens on the promotion of cigarettes that only the federal government may prescribe.”
Oral argument in the case was heard on Oct. 20. Enforcement of the regulation had been stayed until Jan. 1, 2011. Miguel Estrada of Gibson, Dunn & Crutcher was among the lawyers who submitted briefs on behalf of the plaintiffs. Assistant Corporation Counsel Nicholas Ciappetta, who handled the case, said, “We are disappointed that this important health initiative was rejected by the court.” He added that the city plans to appeal. — Mark Hamblett
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