Mayor Bloomberg Sets Sights on Tobacco Displays in New York City

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Mar 19, 2013

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A week after his controversial ban on large sodas was overturned by a State Judge, Mayor Michael Bloomberg has announced a new legislative proposal targeting tobacco displays in New York City.  Over recent years, Mayor Bloomberg has established an agenda of promoting a healthier New York City through restrictive legislation that has earned him both praise and critique, and the latest bill will unquestionably prove as polarizing as his previous work.

The new bill proposed would ban the visible display of all tobacco products in New York City convenience stores.  Hoping to reduce smoking among teenagers, the bill would require businesses to keep cigarettes and other tobacco products behind counters or curtains.  While the stores would still be able to advertise the sale of tobacco, the Mayor hopes that the act of hiding the products will help reduce the likelihood that young people will be encouraged to purchase and consume them.

Bloomberg’s “Nanny State”

Like his overturned ban on large sodas, the restrictions on tobacco displays raise old criticisms that the mayor is attempting to turn New York City into a so-called “nanny state” in which the government controls its citizens behavior.  Bloomberg has framed his agenda as a pathway to improving public health, and has already banned trans fats from restaurants while outlawing smoking in all public places (including parks and beaches). 

Promising to file an appeal in the decision that recently shot down his soda ban, Mayor Bloomberg’s commitment to controlling public health remains as strong and controversial as ever.  Although the US Constitution gives States, who in turn give Cities, a fairly broad range of authority to pass legislation, there are still limits on how much any government can, and should, control the lives of its populace.  No matter how well-intentioned, a government, Federal, State, or Local, cannot pass legislation that is either vague or overly restrictive to the point where it conflicts with the Constitution or Federal law. 

So far, there is not a clear answer on the limits of Mayor Bloomberg’s health campaign.  Although the judge who overturned his soda ban noted that it was not specific enough to be valid, the law was primarily rejected based on procedural grounds – it was not passed by the City Council, but by the Mayor’s Board of Health – which means the decision contributes little to the overall question about how far Bloomberg is allowed to go.  New York City has pushed forward, and is, depending on viewpoint, the most paternalistic or progressive city in the country, with each new proposal raising concerns that the Mayor has over-stretched government authority.

Challenging the Tobacco Initiative

Perhaps learning from the failure of his soda ban , Mayor Bloomberg has introduced the latest initiative to the New York City Council for approval.  If the regulation passes, it is likely that business owners and tobacco companies will pursue a legal challenge to declare the law invalid.  A quick glance at 1965’s Federal Cigarette Labeling and Advertising Act reveals that states or municipalities are barred from passing any “requirement or prohibition based on smoking and health…with respect to the advertising or promotion of cigarettes.”  While the Mayor can counter that stores can still advertise and promote cigarettes, just not display them, this particular law could serve as a basis for a legal challenge on the upcoming ban.  Attorneys for organizations challenging the ban will likely rely on a number of other legal tactics depending on how the law is written and carried out.

A legal challenge is still a long way off, but any proposed law with such an aggressive restriction will most certainly be targeted by its opponents.  Mayor Bloomberg has drawn the ire of many small-government conservatives across the country, and will undoubtedly face legal and philosophical battles over his latest decision.  For his part, he wears the nanny state label as “a great badge of honor,” adding, “It says we’re trying to do something to save lives. Didn’t you learn as a kid we’re on this Earth together? We should be trying to help each other and save lives.”  Mayor Bloomberg seems genuinely concerned for the lives of New Yorkers, and whether or not that concern manifests itself into overly-excessive regulation will be left to the courts to decide if and when the Mayor’s new law is challenged.

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