Establishment clause prohibits congress mandating state

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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.

Our brief also debunked the tobacco industry’s theory that the Federal Trade Commission (FTC) has a “policy” authorizing the use of health descriptors like “light” and “low tar,” and that this federal policy preempts state lawsuits.

We argued that this “implied preemption” claim is without basis since no such Federal Trade Commission “policy” exists, and we pointed out that finding FTC preemption in this case would seriously undermine the ability of states to enforce their own consumer protection and anti-fraud statutes. Supreme Court held that state law fraud claims relating to cigarette packaging and marketing are not preempted by federal law. The City and County of San Francisco (2016) Whether San Francisco's ordinance requiring a warning label on sugar-sweetened beverages (SSBs) violates the First Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

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.

Cases are occasionally decided on grounds suggested by an amicus, decisions may rely on information or factual analysis provided only by an amicus, and holdings may be narrower or broader than parties have urged because of a persuasive amicus brief. Many state associations have joined our briefs as well, such as the Washington State Medical Association, the Kentucky Medical Association, the Montana Hospital Association, the Montana Public Health Association, the League of California Cities, and the California State Association of Counties.

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 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.

Because this finding resolved the case, the court did not address the First Amendment questions raised by the tobacco companies.

New York City appealed the decision to the Second Circuit.

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