Federal Appeals Court Upholds Providence Tobacco Ordinances

fda-issues-fact-sheet-on-tobacco-warnings01Coupons, promotional pricing and flavored tobacco sales now banned in Providence.

The U.S. Circuit Court of Appeals for the First Circuit issued a ruling that upholds two Providence, R.I. ordinances related to tobacco sales, in a loss for tobacco company and associations fighting the ordinances.

The ordinances prohibit retailers from redeeming coupons to obtain a tobacco product free of charge or for less than the listed or non-discounted price; selling tobacco products to adult consumers through any promotional multi-pack discounts such as buy-two, get-one free packages; and selling flavored tobacco products, other than cigarettes, except in a smoking bar, the National Association of Tobacco Outlets (NATO) reported.

The Providence City Council adopted the two tobacco ordinances on Jan. 5, 2012, but a group of plaintiffs, including NATO, the Cigar Association of America, Lorillard Tobacco Co., R.J. Reynolds Tobacco Co., American Snuff Co, Philip Morris USA Inc., U.S. Smokeless Tobacco Manufacturing Co. LLC, U.S. Smokeless Brands Inc. and John Middleton Co., filed a federal lawsuit against the City of Providence in an attempt to overturn the two ordinances. 

When the federal district court judge upheld both Providence ordinances, NATO and the other plaintiffs appealed the case to the U.S. Circuit Court of Appeals.

The plaintiffs had three main arguments. First, they argued that ordinance banning coupon redemption and promotional multi-pack pricing violated the First Amendment of the U.S. Constitution, which protects commercial speech that includes advertising and promotional practices.

But in its decision this week, the U.S. Circuit Court of Appeals held that the Providence ordinance “does not restrict the dissemination of pricing information generally” and only “restricts the ability of retailers to engage in certain pricing practices, name accepting or redeeming coupons for tobacco purchases, and selling tobacco products by way of multi-pack discounting.”  Specifically, the appeals court decision states “price regulations designed to discourage consumption do not violate the First Amendment.” 

The U.S. Circuit Court of Appeals also drew on the Supreme Court decision in U.S. v. Williams, which held that offers to engage in illegal activity are denied First Amendment protection.  The U.S. Circuit Court of Appeals reasoned that since the Providence City Council adopted an ordinance making illegal what had been legal, namely redeeming or offering to redeem tobacco product coupons, then First Amendment protections are no longer applicable for accepting and redeeming coupons, NATO reported.

The plaintiffs also argued that federal law pre-empted the restrictions.  The Federal Cigarette Labeling and Advertising Act (FLCAA) prohibits a state or city from adopting a law that contains restrictions or prohibitions on cigarette advertising or promotion based on smoking and health.  Several U.S. Circuit Courts have ruled previously that under the FCLAA, the term “promotion” as used in the federal law includes discounting and couponing. 

The U.S. Circuit Court of Appeals for the First Circuit agreed with these other circuit courts that coupon redemption constitutes “promotion” under the FCLAA and would be pre-empted.  However, the First Circuit judges relied on the Family Smoking Prevention and Tobacco Control Act, the law that granted the FDA the authority to regulate tobacco products, to hold that states and cities can adopt laws that regulate the “time, place and manner” of tobacco advertising and promotions, but not the content of the ads or promotions. 

The First Circuit court’s ruling found that banning coupon redemption and promotional pricing are regulations that constitute a restriction on the “manner” of promotion and, for that reason, are legally allowable.

The plaintiffs also argued that the ban on the sale of most flavored tobacco products violated the Family Smoking Prevention and Tobacco Control Act.  However, the First Circuit appeals court held that since flavored tobacco products can still be sold in “smoking bars” in Providence, then the restriction is not a blanket prohibition and is a regulation allowed under the Family Smoking Prevention and Tobacco Control Act.

  • harleyrider1778

    The U.S. Circuit Court of Appeals also drew on the Supreme Court decision in U.S. v. Williams, which held that offers to engage in illegal activity are denied First Amendment protection. The U.S. Circuit Court of Appeals reasoned that since the Providence City Council adopted an ordinance making illegal what had been legal, namely redeeming or offering to redeem tobacco product coupons, then First Amendment protections are no longer applicable for accepting and redeeming coupons, NATO reported.
    I just cant f!!!king believe this non-sensical B.S…………..THIS IS UNREAL! The court takes a law that’s illegal under 1st amendment and to counter the first amendment it claims the law is legal to take away the protections of the 1st……………Last time I looked the 1st amendment pre-dates this stupid providence law! Which makes it null and void………
    You are not going to get justice in any court in America any longer and this PROVES IT!

  • harleyrider1778

    This Judge should be HORSE WHIPPED WITH THE CONSTITUTION!

  • harleyrider1778

    JOINT STATEMENT ON THE RE-ASSESSMENT OF THE TOXICOLOGICAL TESTING OF TOBACCO PRODUCTS”
    7 October, the COT meeting on 26 October and the COC meeting on 18
    November 2004.

    http://cot.food.gov.uk/pdfs/cotstatementtobacco0409

    “5. The Committees commented that tobacco smoke was a highly complex chemical mixture and that the causative agents for smoke induced diseases (such as cardiovascular disease, cancer, effects on reproduction and on offspring) was unknown. The mechanisms by which tobacco induced adverse effects were not established. The best information related to tobacco smoke – induced lung cancer, but even in this instance a detailed mechanism was not available. The Committees therefore agreed that on the basis of current knowledge it would be very difficult to identify a toxicological testing strategy or a biomonitoring approach for use in volunteer studies with smokers where the end-points determined or biomarkers measured were predictive of the overall burden of tobacco-induced adverse disease.”

    In other words … our first hand smoke theory is so lame we can’t even design a bogus lab experiment to prove it. In fact … we don’t even know how tobacco does all of the magical things we claim it does.

    The greatest threat to the second hand theory is the weakness of the first hand theory.

  • harleyrider1778

    This pretty well destroys the Myth of second hand smoke:

    http://vitals.nbcnews.com/_news/2013/01/28/16741714-lungs-from-pack-a-day-smokers-safe-for-transplant-study-finds?lite

    Lungs from pack-a-day smokers safe for transplant, study finds.

    By JoNel Aleccia, Staff Writer, NBC News.

    Using lung transplants from heavy smokers may sound like a cruel joke, but a new study finds that organs taken from people who puffed a pack a day for more than 20 years are likely safe.

    What’s more, the analysis of lung transplant data from the U.S. between 2005 and 2011 confirms what transplant experts say they already know: For some patients on a crowded organ waiting list, lungs from smokers are better than none.

    “I think people are grateful just to have a shot at getting lungs,” said Dr. Sharven Taghavi, a cardiovascular surgical resident at Temple University Hospital in Philadelphia, who led the new study………………………

    Ive done the math here and this is how it works out with second ahnd smoke and people inhaling it!

    The 16 cities study conducted by the U.S. DEPT OF ENERGY and later by Oakridge National laboratories discovered:

    Cigarette smoke, bartenders annual exposure to smoke rises, at most, to the equivalent of 6 cigarettes/year.

    146,000 CIGARETTES SMOKED IN 20 YEARS AT 1 PACK A DAY.

    A bartender would have to work in second hand smoke for 2433 years to get an equivalent dose.

    Then the average non-smoker in a ventilated restaurant for an hour would have to go back and forth each day for 119,000 years to get an equivalent 20 years of smoking a pack a day! Pretty well impossible ehh!

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