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Three tobacco companies and a retailer trade association have sued the city of Worcester, Mass., over an ordinance that would sharply restrict outdoor and indoor tobacco advertising. The companies and trade group filed National Association of Tobacco Outlets Inc. v. City of Worcester, Mass., in the District of Massachusetts on June 17. Three individual tobacco companies are among the named plaintiffs: R. J. Reynolds Tobacco Co., Philip Morris USA Inc. and Lorillard Tobacco Co. The lawsuit challenges Worcester’s May 10 amendment to its Tobacco Products Control Ordinance, which was to take effect on June 24. On June 20, all of the parties filed a joint stipulation to stay enforcement of the disputed section of the ordinance until 14 days after the court rules on the plaintiffs’ preliminary injunction motion. The lawsuit claims the ordinance violates the plaintiffs’ free speech rights under the Constitution’s First and 14th amendments and federal statutory civil rights protections. The plaintiffs asked the court for preliminary and permanent injunctions barring enforcement of the ordinance’s advertising ban, a judgment declaring the advertising ban unconstitutional and attorneys’ fees and costs. According to the lawsuit, the ordinance prohibits “display[ing] any advertising that promotes or encourages the sale or use of cigarettes…or other tobacco products in any location where any such advertising can be viewed from any street or park shown on the Official Map of the city or from any property containing a public or private school or property containing an educational institution.” The case claims the ordinance runs afoul of the 2001 U.S. Supreme Court ruling in Lorillard Tobacco Co. v. Reilly, which struck down a Massachusetts regulation that banned outdoor advertising of tobacco products within 1,000 feet of a school or playground. The association filed the lawsuit because Worcester’s city council and city solicitor did not respond to letters and e-mails advising that the ordinance was unconstitutional, said Thomas Briant, the association’s executive director and legal counsel. The association’s main purpose is to help retailers advocate for appropriate local, state and federal tobacco laws, Briant said. The Worcester lawsuit was the first it has filed in its 10-year history. The association “has members right in Worcester that are going to be negatively impacted by the ordinance, and they deserve the right to advertise legal tobacco products,” Briant said. “Also, if this ordinance would be allowed to remain standing, it could serve as a precedent for other cities to consider similar advertising restrictions.” The association “will always step forward and protect the right of retailers to advertise tobacco products,” he said. The city wasn’t surprised because officials “expected that tobacco companies would take an advertising ban seriously,” but federal law has changed since the justices ruled in Lorillard, said Worcester city solicitor David Moore. Then, states and cities were pre-empted from regulating tobacco because of health concerns for anyone other than minors, Moore said. With the Family Smoking Prevention and Tobacco Control Act, which became law in 2009, Congress removed the pre-emption and declared that nothing in federal law prohibits advertising bans, Moore said. “The question is, does [the ordinance] fit with the Constitution,” Moore said. “If the purpose [of the federal law] is to prevent smoking in general then an advertising ban satisfies that.” Mark Schonfeld, a New York litigation partner with Los Angeles-based Gibson, Dunn & Crutcher who represents the association and Philip Morris, referred questions to his clients. “The U.S Supreme Court has already ruled that a similar regulation that was less comprehensive than Worcester’s violates the First Amendment and we believe Worcester’s ordinance does too,” said Steve Callahan, a spokesman for Altria Group Inc., Philip Morris’ parent company. R.J. Reynolds’ lawyers, also at Jones Day, referred questions to the company. Spokesman David Howard said the ordinance prohibits communication about a legal product to adults who choose to use tobacco. “We believe the ordinance that was passed in Worcester, Mass., violates our constitutional rights to responsibly communicate with adult tobacco consumers,” Howard said. The lawsuit challenges an ordinance “which we believe is far more broad than the provision which the U.S. Supreme Court struck down in Lorillard v. Reilly in 2001,” said Alan Mansfield, a New York litigation partner at Greenberg Traurig, who represents Lorillard. Sheri Qualters can be contacted at [email protected] .

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