Outdoor Tobacco Ad Ban Ruled Unconstitutional

(CN) - A federal judge ruled that Worcester, Massachusetts' outdoor tobacco ad ban is unconstitutional in that it effectively bars tobacco companies from advertising their products to adults who may legally purchase them.

In May 2011, the Worcester City Council amended its tobacco products control ordinance with a new provision that stated: "No person shall display any advertising that promotes or encourages the sale or use of cigarettes, blunt wrap 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 revised ordinance also prohibits the sale of blunt wraps in the City. The provision defines blunt wraps as "cigarette-like rolling paper that is thick and dark and usually made from tobacco leaves. Blunt wraps come in flavored varieties and are heavily marketed to the youth and often used as drug paraphernalia."

The National Association of Tobacco Outlets, R.J. Reynolds Tobacco Company, and Philip Morris USA sued the City of Worcester, arguing that the ordinance violated the First Amendment.

U.S. District Judge Douglas Woodlock granted the tobacco plaintiffs' motion for summary judgment, finding that "Worcester may not prohibit tobacco advertisements in order to prevent adults from making the choice to legally purchase tobacco products."

"Worcester 'has burdened a form of protected expression that it found too persuasive. At the same time, [Worcester] has left unburdened those speakers whose messages are in accord with its own views. This [it] cannot do,'" the court said, applying Supreme Court precedent.

Woodcock went on to say the ordinance could not stand even in light of the city's legitimate interest in protecting minors from tobacco advertising,.

"The broad sweep of the ordinance suggests that the defendants did not consider how to tailor the restrictions so as not unduly to burden the plaintiffs' free speech rights and the rights of adults to truthful information about tobacco products," Woodlock said.

Of the ordinance's prohibition of the sale of blunt wraps, the court ruled that, "While an advertisement in Worcester specifically promoting sales of blunt wraps in Worcester promotes unlawful activity, an advertisement in Worcester promoting such sales in the nearby city of Fitchburg (where sales are apparently lawful) or an advertisement promoting such sales generally, without reference to location, is within the scope of First Amendment protection." The judge continued: "The City of Worcester may not bar the dissemination of information to Worcester residents about the characteristics of various brands of blunt wraps for sale outside of Worcester, so long as the advertising does not specifically propose a sale in Worcester or some other locale where such a transaction would be illegal."

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit