Whether New York City’s law prohibiting tobacco product price discounts violates the First Amendment and is preempted by federal law.
In 2013, New York City passed an ordinance (Local Law 1021-A-2013) that sets a minimum price of $10.50 for every pack of cigarettes sold in the city and that prohibits the use of coupons or other promotional discounts to lower that price, both for cigarettes and for other tobacco products. In January 2014, tobacco companies and three trade groups challenged the ordinance on First Amendment and preemption grounds, and moved for a preliminary injunction.
On March 3, 2014, the Tobacco Control Legal Consortium and eleven other national, state and local public health and medical organizations filed an amicus brief, urging the U.S. District Court, Southern District of New York, to uphold New York City’s ordinance and allow its implementation. The brief, which focuses on the public health rationale for the ordinance, points out that numerous scientific studies and public health authorities have concluded that raising the price of tobacco products will reduce smoking among the young. The brief argues that tobacco companies have developed sophisticated marketing techniques specifically designed to counter the effect of higher cigarette prices on their sales and that imposing high excise taxes on cigarettes and prohibiting discounting are effective tobacco control strategies. Finally, the brief contends that the plaintiffs’ arguments denying the effect of coupon redemption on youth smoking are without merit, given national data that reveals the extent to which adolescents are targeted to receive tobacco coupons on a regular basis – and should be evaluated in light of the tobacco industry’s “long history of marketing to children.”
On June 18, 2014, the U.S. District Court for the Southern District of New York upheld the law. The court said that the ordinance regulates an economic transaction (the sale of tobacco products below the listed price), and does not restrict the dissemination of product pricing information or the distribution of tobaco products. Thus, the court held that the law was constitutional and granted the city's motion for summary judgment.