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Judge Strikes Down City’s New Anti-Smoking Signs

MANHATTAN (CN) - A federal judge struck down a new health code provision - set to take effect on Jan. 11 - that would require city retailers to post "gruesome" anti-smoking images wherever tobacco products are sold. "Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs," U.S. District Judge Jed Rakoff wrote.

The nation's three largest tobacco manufacturers, two New York City retailers that sell tobacco products, and two trade associations representing New York City tobacco retailers sued after the New York City Board of Health issued the changes in fall 2009. Enforcement of the new regulation was stayed until Jan. 11 because of the litigation.

Rakoff said the health code change must be struck down because "it imposes burdens on the promotion of cigarettes that only the federal government may prescribe."

While anti-smoking initiatives have somewhat lowered smoking rates, they have hardly eliminated the threat to public health, the judge found.

Nearly 1 million New York city residents smoke, which Rakoff noted reflects both the addictive quality of nicotine and smokers' conscious choice in the face of competing information.

"Within New York City, roughly 7,500 people die from smoking annually - more than from AIDS, homicide and suicide combined," the ruling states.

The health code provisions that Rakoff invalidated would have required retailers to display either one small sign beside each cash register or one large sign beside tobacco product displays. The signs would include health warnings, an image illustrating the effects of tobacco use and information about how to quit.

"These signs contain graphic, even gruesome images of a brain damaged by a stroke, a decaying tooth and gums, and a diseased lung," Rakoff wrote, describing three signs that the health department designed for retailers.

The judge found that the signs went against the Federal Cigarette Labeling and Advertising Act, enough so that he did not delve into tobacco companies' other grounds, including free speech and separation of powers.

The Labeling Act was passed in 1965 to balance public and commercial interests over cigarette advertising, but the city argued that its new campaign does not impose advertising requirements and therefore does not come under the law's purview.

Amid a host of other tobacco regulations - such as those forbidding smoking advertisements through broadcast media and directing retailers to store tobacco products behind a counter only accessible to staff - Rakoff found that the display of cigarettes at the point-of-sale is one of the last bastions of cigarette promotion.

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