'Gruesome' Tobacco Ads Struck Down By Judge

Ruling goes against a 2009 Board of Health Code requiring stores selling tobacco products to display signs

Wednesday, Dec 29, 2010  |  Updated 7:45 PM EDT
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'Gruesome' Tobacco Ads Struck Down By Judge

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Cigarette being put out in ashtray

The city's campaign to scare smokers with gross images of decaying teeth or a diseased lung wherever tobacco products are sold was struck down Wednesday by a federal judge. 

U.S. District Judge Jed S. Rakoff concluded that only the federal government can dictate warnings that must accompany the promotion of cigarettes.  He handed a victory to the nation's three largest tobacco manufacturers and the retailers who sell their products when he ruled on the legality of a 2009 city Board of Health code change requiring the display of smoking cessation signs where tobacco products are sold.
    
"Even merchants of morbidity are entitled to the full protection of the law, for our sake as well as theirs," Rakoff said. He released the written decision just days before an agreement among the parties to delay enforcement of the rule was to expire on Saturday.
 

He said the federal Labeling Act, first enacted in 1965, sought to balance public and commercial interests with a comprehensive federal program to deal with cigarette labeling and advertising. He said it was created in part to prevent "diverse, nonuniform and confusing cigarette labeling and advertising regulations."

 Part of the law dictated that no state law could impose a requirement or prohibition with respect to advertising or promotion of cigarettes, he noted.

The city also banned smoking in indoor workspaces, increased cigarette taxes, initiated educational campaigns and promoted smoking cessation programs.

As part of his ruling, Rakoff included some of the statistics that encouraged the city to enact the regulation: that one-third of smokers die of tobacco-related diseases and roughly 7,500 people die in New York City from smoking annually--"more than from AIDS,
 homicide and suicide combined."
    
As part of the campaign, the Department of Health designed three signs for tobacco retailers to display. The judge said they contained "graphic, even gruesome images" of a stroke-damaged brain, a decaying tooth and gums and a diseased lung along with the phrase "Quit Smoking Today--For Help, Call 311 Or 1-866-NYQUITS."
 

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