Smoking warnings could depend on NYC lawsuit

Retailers say signs infringe on rights

State officials could mandate antismoking posters, like this New York City one, in stores selling cigarettes. State officials could mandate antismoking posters, like this New York City one, in stores selling cigarettes. (Swoan Parker/Associated Press)
By Stephen Smith
Globe Staff / June 6, 2010

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Massachusetts health officials developing a campaign that would force retailers to prominently display graphic warnings about the dangers of smoking said they will closely monitor a lawsuit filed by tobacco companies to remove similar posters from New York City stores.

A spokeswoman for the Massachusetts Department of Public Health, Jennifer Manley, said the agency intends to proceed with public hearings about its proposal and remains committed to aggressively warning about the health risks of smoking, the leading cause of preventable death.

“Any education and cessation material we can get out there, we would like to get out on a state level,’’ Manley said. “We’re going to keep watching New York City closely to see what the outcome is.’’

When Massachusetts health authorities announced their proposal last month, they said it would emulate a first-of-its-kind campaign introduced by New York City late last year. New York requires 11,500 retailers that sell cigarettes to display posters emblazoned with graphic images showing brains, lungs, and teeth ruined by tobacco use. The posters also have information about where smokers can turn for help to quit their habit.

The lawsuit filed last week in New York federal court by tobacco companies and retailers asserts that city regulators overstepped their authority because it is the federal government, not state and local health departments, that has jurisdiction over cigarette health warnings. The companies also allege that the city has infringed on the First Amendment free speech rights of tobacco makers and merchants.

“The mandated signs crowd out other advertisements and otherwise dominate the point of sale in many smaller establishments, to the exclusion of merchandise or other messages chosen by the store owners,’’ the lawsuit said.

Representatives of the two largest US cigarette makers said they could not comment on whether they might take action against Massachusetts because the state’s Public Health Council has yet to formally adopt the proposal put forward by Governor Deval Patrick’s administration.

However, the council — an appointed panel of doctors, public health specialists, and consumer advocates — expressed enthusiasm for the proposal at its meeting last month. It could vote on the plan, which would cover more than 9,000 convenience stores, gas stations, and other sellers of tobacco, in the fall.

David Sutton, a spokesman for Marlboro-maker Philip Morris USA, said his company views the Massachusetts proposal in the same light as the New York regulation.

“You’d be getting into a situation there of a patchwork of conflicting warnings at the state or local and federal levels,’’ Sutton said. “It’s not up to New York City or Massachusetts to step in for the [federal government] in this area.’’

Stephen Smith can be reached at

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