23-34 94th St. Grocery Corp. v. New York City Board of Health
2012 U.S. App. LEXIS 14086
| 2d Cir. | 2012Background
- Board of Health of NYC adopted a resolution (Article 181.19) requiring graphic tobacco-health signs at retail; district court voided resolution as preempted by federal labeling laws; City and health department appealed; district court did not address First Amendment issues; the court affirms preemption ruling and declines First Amendment ruling.
- Resolution requires prominent display of health signs near cash registers or tobacco product displays; signs included graphic images with health warnings and cessation callouts.
- City argued resolution supplements federal warnings; plaintiffs argued preemption under 15 U.S.C. §1334(b) blocks any state/ local advertising/promotion requirements.
- The district court granted summary judgment for plaintiffs on preemption grounds; court's analysis focuses on whether the resolution is a promotion-related preemption under the Labeling Act.
- Court concludes the Resolution is preempted as a requirement
- The court does not resolve the First Amendment issue due to holding preemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Resolution is preempted by the Labeling Act §1334(b). | Resolution imposes content on promotion of cigarettes. | Resolution regulates sale/presentation, not promotion. | Preempted; falls within advertising/promotion preemption. |
| If preemption applies, whether the Resolution is 'with respect to' advertising or promotion. | Display requirements affect promotion. | Effects are tangential to promotion; not within §1334(b). | Agreement that it is with respect to promotion. |
| Whether §1334(c) safe harbor preserves time/place/manner restrictions. | Sanctioned by 1334(c) if treated as place/manner. | Not a place-based restriction; content-related. | Not saved by 1334(c); not a place restriction. |
| Whether the overall statutory scheme supports preemption. | Congress intended to prevent supplementary warnings. | Federal program aims to inform; states may regulate nonuniformly. | Overall scheme supports preemption; supplementing warnings at point of sale is barred. |
Key Cases Cited
- Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (Supreme Court, 1992) (congressional intent governs preemption analysis)
- Altria Grp., Inc. v. Good, 555 U.S. 70 (Supreme Court, 2008) (federal warnings provision occupies field; preemption standard)
- Vango Media, Inc. v. City of New York, 34 F.3d 68 (2d Cir., 1994) (local promo requirement preempted when related to advertising)
- Bates v. Dow AgroSciences LLC, 544 U.S. 431 (Supreme Court, 2005) (presumption against preemption; express language analyzed)
- Reilly v. United States, 533 U.S. 525 (Supreme Court, 2001) (statutory interpretation can consider structure and purpose)