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City To Hold Off On Tobacco Advertising Ban

A citywide ban on all visible cigarettes product advertising will not be enforced starting Friday as scheduled, after the city and a group of tobacco companies agreed to stay enforcement while a civil action is pending.

The stay of enforcement was filed today in U.S. District Court in Worcester. The city and plaintiffs R.J. Reynolds Tobacco Co.; Philip Morris USA Inc., Lorillard Tobacco Co. and the National Association of Tobacco Outlets, agreed to the stay.

A portion of the city's tobacco-control ordinance approved last month bans advertising of cigarettes and tobacco products visible from any city street, park, school or educational institution.
It is that section of the ordinance that is stayed until a hearing can be held in federal court. No hearing date has been scheduled.

The city and plaintiffs agreed enforcement of that section will be stayed until 14 days after the court's ruling on the plaintiffs' motion for a preliminary injunction.

The civil action filed Friday of last week asks for a judge to deem the ordinance in violation of the Constitution and the plaintiffs' civil rights. They want a permanent injunction against the advertising enforcement section of the ordinance.

“We believe the ordinance violates our First Amendment rights to responsibility communicate with adult tobacco consumers,” R.J. Reynolds spokesman David P. Howard said this morning. “It is trying to prohibit communication of a legal product to adults who chose to use tobacco.”

There is case law that backs the tobacco companies, Mr. Howard said. A past U.S. Supreme Court decision involving Lorillard versus former state Attorney General Thomas F. Reilly shot down state regulation prohibiting outdoor advertising of tobacco products within 1,000 feet of a school or playground.

City Solicitor David M. Moore said the city anticipated legal action after the ordinance was approved.
“What Worcester did is something that no other city has done, and this is pose an advertising restriction,” he said. “You won't be able to drive anywhere in the city and see a tobacco advertisement. That is what the ordinance does.”

While the tobacco companies argue First Amendment rights, it appears the city is basing its ability to approve such a regulation on the Federal Family Smoking Prevention and Tobacco Control Act of 2009.

The act opened the door to local regulation of tobacco advertising, something before regulated only by the federal government.

City officials working on the ordinance found that almost 24 percent of adults in the city over 18 smoke. That rate is nearly 1 1/2 times higher than the statewide average of 16 percent.





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