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Restricting Retail Tobacco Displays: Legal Standards & Scientific Evidence

Restricting Retail Tobacco Displays: Legal Standards & Scientific Evidence. Maggie Mahoney June 14, 2013. FCLAA. Prohibits any state or local requirement or prohibition based on smoking and health w ith respect to the advertising or promotion of any cigarettes .

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Restricting Retail Tobacco Displays: Legal Standards & Scientific Evidence

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  1. Restricting Retail Tobacco Displays: Legal Standards & Scientific Evidence Maggie Mahoney June 14, 2013

  2. FCLAA Prohibits any state or local • requirement or prohibition • based on smoking and health • with respect to the advertising or promotion of any cigarettes.

  3. FCLAA after the Tobacco Control Act State or local governments may impose specific bans or restrictionson the • Time, place, and/or manner • but not “content” of the advertising or promotion of any cigarettes.

  4. FCLAA and Display Restrictions Photos courtesy of Center for Public Health and Tobacco Policy at New England Law | Boston

  5. Lawsuit Challenging NYC’s Graphic Warning Signs 23-34 94th St Grocery v NYC Board of Health

  6. “Manner”?

  7. 1st Amendment Commercial Speech snus-news.blogspot.com www.trinketsandtrash.org

  8. Possible 1st Amendment Tests for Powerwalls Strict Scrutiny (core speech) O’Brien (expressive conduct) No Scrutiny Under 1st A (non-communicative business activity; rational basis) Central Hudson “Plus” (Commercial Speech post-Sorrell)

  9. Central Hudson Test (1) Is the restricted speech false, deceptive, or advertising illegal activities? If yes, then no First Amendment protection. If no, then a court applies the following 3 prongs. (2) Is the law justified by a substantial governmental interest? (3) Does the law directly advance the government’s interest? (4) Is there a reasonable fit between the goal (the government’s interest) and the means chose to accomplish the goal? OR (4) Is there no other means of accomplishing the goal that would restrict less speech?

  10. Retail Tobacco Displays • Priorities for future scientific research: • Relationship between the size of powerwall displays and their marketing effectiveness. • Effectiveness of product displays restrictions absent other advertising restrictions. • Creation of a “test” retail store which would simulate an actual retail environment. The test store could be used to isolate variables more effectively than existing methods. This could replace the computerized “virtual” stores that are currently used for research purposes under the theory that physical stores would improve the validity and reliability of the research.

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