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Big Tobacco Smoking Hot At Ad Ban

Big Tobacco claims Worcester, a city of 182,000, enacted an unconstitutional ban on cigarettes advertising that's so broad it prohibits ads anywhere in the city, indoors or out.

Throughout their federal complaint, R.J. Reynolds, Philip Morris and Lorillard Tobacco Company cite the U.S. Supreme Court ruling in Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 556-66 (2001), that "'so long as the sale and use of tobacco is lawful for adults, the tobacco industry has a protected interest in communicating information about its products and adult customers have an interest in receiving that information.'" Id. at 571. It thus struck down a Massachusetts regulation that prohibited outdoor advertising of tobacco products within 1,000 feet of a school or playground."

But in May, Worcester amended its tobacco ad law to make it even stricter than the law prohibited by the Lorillard ruling, according to the complaint.

Worcester already had banned outdoor tobacco ads within 1,000 feet of a school or playground. The new law banned even indoor tobacco ads that could be seen from a city street.

"The Ordinance provides: '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,'" according to the complaint.

The tobacco companies say the new code is so broad it essentially bans tobacco ads anywhere in town.

The law, which takes effect June 24, allows smoking cigarettes bars and 18-and-over tobacco stores to hang generic "tobacco products sold here" signs. But ads that display a tobacco manufacturer's brand name, company name, logo or trademark are barred.

Joined as lead plaintiff by the National Association of Tobacco Outlets, Big Smoke argues that one of the last permissible ways they can grab smokers' attention is through point-of-sale advertising. Banning tobacco ads placed near checkout lines closes off this channel of communication, and violates the First Amendment, according to the complaint.

The tobacco companies say Worcester "seeks to outlaw all outdoor (and some indoor) tobacco advertising not merely to prevent youth tobacco use, but to prevent adults from making decisions of which the city disapproves."

They want Worcester enjoined from enforcing its law, as a violation of the First and 14th Amendments. They are represented by Traci Lovitt with Jones Day of Boston.

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