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Judge says Worcester can’t ban tobacco ads

City loses on free speech grounds

Worcester sought to ban signs for specific brands of cigarettes.

The Boston Globe/File/2011

Worcester sought to ban signs for specific brands of cigarettes.

Worcester officials said Monday that they have not decided whether to continuing fighting three of the nation’s biggest tobacco companies, after a federal judge ruled that a city ordinance dramatically limiting advertising for tobacco products is unconstitutional.

Under the regulation - which was approved last May, but not yet enforced - stores would be prohibited from advertising specific cigarette brands on signs visible from the street. Signs could only note that the stores sold cigarettes. City officials have said they believe such cigarette promotions contribute to a high incidence of tobacco use in Worcester, where 19 percent of adults smoke, compared with 14 percent statewide.

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But US District Court Judge Douglas P. Woodlock found the ordinance violates the First Amendment right to free speech, an argument made in a lawsuit filed last summer by Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Lorillard Tobacco Co., and the National Association of Tobacco Outlets Inc., a trade group.

“They contend that the city has no legitimate interest in prohibiting non-misleading advertising to adults to prevent them from making a decision of which the city disapproves,’’ Woodlock wrote in his decision, which he made public on Saturday. “I agree.’’

In a statement Monday, Philip Morris lauded the ruling.

“Tobacco companies have a constitutional right to communicate with adult consumers through retail advertising and this court appropriately recognized that,’’ said Murray Garnick, a senior vice president at Altria Client Services, a subsidiary of Philip Morris’s parent company. “We will continue to vigorously defend this right when it is challenged.’’

Worcester city solicitor David M. Moore said officials believe there may be grounds to appeal the ruling. For instance, Moore said, Woodlock did not reference the federal Family Smoking Prevention and Tobacco Control Act. That law, approved by Congress in 2009, broadened local governments’ authority to regulate tobacco marketing based on health concerns for the entire population, according to Worcester officials.

“We’re going to review all the options with the relevant people,’’ Moore said. “There’s a legal basis to uphold this ordinance . . . [but] we understand the First Amendment is a formidable pillar in our system, and we respect the challenge.’’

The sign regulation met with such strong resistance from tobacco companies because it had the potential to set a precedent, changing how they and retailers across the United States market cigarettes and other tobacco products. Tobacco companies, however, have historically prevailed in similar cases.

Andrew Kerstein, president of the National Association of Tobacco Outlets, said he is confident that Worcester’s ordinance will not hold up in court if the city decides to appeal.

The Family Smoking Prevention and Tobacco Control Act “has to live within the Constitution,’’ Kerstein said, and “it doesn’t give [public officials] the authority to regulate free speech the way they intend to regulate it.’’

Jonathan M. Albano, a partner at Bingham McCutchen LLP in Boston who specializes in constitutional litigation, said he tended to agree.

“No matter what Congress says at any particular date and time [with changes in legislation], they are not allowed to trump the Constitution,’’ said Albano, who has represented the Globe on First Amendment issues. “So the First Amendment analysis that Judge Woodlock engaged in is going to override whatever Congress says.’’

Erin Ailworth can be reached at eailworth@globe.com. Follow her on Twitter @ailworth.
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