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The court concluded that such interference with a display by the City was directly preempted by the FCLAA provision prohibiting states from imposing additional requirements with respect to tobacco companies’ promotional messages.

Whether New York City’s health regulation, Resolution § 181.19, requiring tobacco retailers to post factual health warnings where tobacco products are sold, is preempted by federal law, violates the free speech provisions of the federal and state constitutions, and exceeds the authority of the Board of Health under New York State Constitution’s separation of powers doctrine.

A well-written amicus brief can have a significant impact on judicial decision-making. Among the national organizations joining our briefs have been the American Cancer Society Cancer Action Network, the American Heart Association, the American Lung Association, the American Medical Association, the National Association of County and City Health Officials, the National Association of Local Boards of Health, Americans for Nonsmokers’ Rights, and the Campaign for Tobacco-free Kids.

United States District Court for the Southern District of New York Decided: December 29, 2010 Whether New York City’s health regulation, Resolution § 181.19, requiring tobacco retailers to post factual health warnings where tobacco products are sold, is preempted by federal law, violates the free speech provisions of the federal and state constitutions, and exceeds the authority of the Board of Health under New York State Constitution’s separation of powers doctrine.

On September 22, 2009, the New York City Board of Health amended Article 181 of the City’s Health Code to require that “[a]ny person in the business of selling tobacco products face-to-face to consumers in New York City shall prominently display tobacco health warnings and smoking cessation signage produced by the Department [of Health].” The City created signs displaying vivid images of diseased human lungs, brains and teeth, along with smoking cessation information, and required retailers to post these signs by cash registers to discourage consumers from purchasing cigarettes.

Drafting amicus briefs is a large undertaking, which requires weeks of work negotiating involvement, coordinating potential participants, researching issues, recruiting authors, and editing drafts. Whether Congress’s intent in enacting the Federal Cigarette Labeling and Advertising Act’s preemption provision was to protect tobacco companies from “diverse, nonuniform, and confusing cigarette labeling and advertising regulations,” rather than to bar public health messaging that does not place any requirements on tobacco companies.

Function and Role of Amicus Briefs in Public Health Litigation The Public Health Law Center and the Tobacco Control Legal Consortium play a unique role supporting public health policy by preparing amicus curiae, or friend of the court, briefs in legal cases of national importance related to public health. United States Court of Appeals for the Second Circuit Decided: July 12, 2012 Whether Congress’s intent in enacting the Federal Cigarette Labeling and Advertising Act’s preemption provision was to protect tobacco companies from “diverse, nonuniform, and confusing cigarette labeling and advertising regulations,” rather than to bar public health messaging that does not place any requirements on tobacco companies.

On July 12, 2012, the Second Circuit affirmed the lower court’s holding that the City’s resolution requiring tobacco retailers to place graphic warnings at the point of sale was preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA).

The court held that a product display is a type of promotion and reasoned that requiring graphic warnings be placed in close proximity to cigarette displays was essentially equivalent to requiring a warning on the display itself.Under the federal law, states cannot impose requirements or prohibitions based on smoking and health on the advertising or promotion of cigarettes. Supreme Court, which held, by split decision, that the state law had not been preempted.The defendants also argued that plaintiffs’ state law unfair trade practices claims conflicted with the Federal Trade Commission’s regulatory approach as to “light” and “low tar” cigarettes, and thus were impliedly preempted as well. This case is significant because it determined whether consumers can continue to sue the tobacco industry for any form of fraudulent misrepresentation and deceptive marketing, or whether federal law preempts state lawsuits and allows manufacturers to escape legal accountability.The health department disagreed with the judge’s interpretation of the federal law, and said the signs portray factual messages about the dangers of smoking and the importance of quitting.On April 15, 2011, the Tobacco Control Legal Consortium filed a motion at the U. Court of Appeals for the Second Circuit to submit an amicus curiae brief in support of New York City’s requirement that graphic warnings be posted in retail stores to warn consumers of the dangers of tobacco products.Supreme Court of the United States Decided: December 15, 2008 Whether tobacco companies can be sued under state law for deceptive advertising of “light” cigarettes or whether federal law prohibits such lawsuits.

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