WASHINGTON, DC.— The Washington Legal Foundation (WLF) yesterday urged the U.S. District Court for the Southern District of New York to strike down a New York City ordinance that prohibits many common promotional practices for tobacco products, such as providing consumers with discount coupons. In a brief filed in a pending challenge to the Ordinance, WLF argued that the prohibited practices constitute commercial speech protected by the First Amendment, and that the Ordinance does not adhere to constitutional limitations applicable to all restrictions on truthful commercial speech.
Scheduled to take effect this spring, the challenged Ordinance includes bans on discount coupons, offering discounts for the purchase of more than a single tobacco product, or even advertising a “sale” price. The City justifies its bans on the premise that they will lead to higher overall prices, thereby reducing demand for tobacco prices. It asserts that the First Amendment has no relevance because the Ordinance only regulates economic activity, not speech.
WLF’s brief asserted that the banned promotional activities are protected by the First Amendment because they quite clearly have an expressive element. WLF noted, for example, that American businesses have used discount coupons for 150 years, as a means of conveying a “try me” message to consumers. Businesses issued 315 billion discount coupons in 2013 alone. WLF asserted that the City is trying to ban discount tobacco coupons not because they are misleading but because they are often successful in persuading consumers to purchase the advertised brand.
WLF asserted that, under Supreme Court commercial free speech case law, a government may not use speech restrictions to achieve its objectives if they could also be achieved without restricting speech. WLF argued that if the City wants to raise cigarette prices, it can do so directly, by raising the “price floor” on cigarettes (currently set by the City at $10.50 per pack) or by increasing excise taxes (currently, nearly $7.00 per pack).
After filing its brief, WLF issued the following statement by Chief Counsel Richard Samp:
“The City’s marketing ban sets a dangerous precedent that all but eliminates First Amendment restrictions on efforts to suppress truthful speech for the purpose of ‘protecting’ consumers from actions they might take in response to the speech. Such measures are particularly unwarranted when, as here, the government can attain its objectives by adopting measures that do not suppress speech. If the First Amendment means anything, it means that regulating speech must be a last—not first—resort.”
WLF is a public interest law firm and policy center that regularly litigates in support of the free speech rights of the business community.