|||U.S. Court of Appeals, Second Circuit
|||Docket No. 99-7006
|||195 F.3d 100, 1999.C02.0042471 <http://www.versuslaw.com>
|||October 25, 1999
|||THE GREATER NEW YORK METROPOLITAN FOOD COUNCIL, INC., THE ADVERTISING
FREEDOM COALITION AND THE ADVERTISING CLUB OF NEW YORK, INC., PLAINTIFFS-APPELLEES,
RUDOLPH W. GIULIANI, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF NEW YORK, THE CITY OF NEW YORK, GASTON SILVA, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF BUILDINGS AND ALFRED C. CERULLO, III, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK CITY DEPARTMENT OF FINANCE, DEFENDANTS-APPELLANTS.
|||Floyd Abrams, Cahill Gordon & Reindel, New York, NY (Jonathan Donnellan,
Joel Kurtzberg, Matthew A. Leish, Cahill Gordon & Reindel, Howard B. Tisch,
Greater New York Metropolitan Food Council, Inc., on the brief), for Plaintiffs-Appellees.
Elizabeth S. Natrella, Corporation Counsel's Office, City of New York, New
York, NY (Michael D. Hess, Corporation Counsel, Leonard J. Koerner, and
Deborah Rand, on the brief), for Defendants-Appellants. Douglas N. Letter,
United States Department of Justice, Washington, Dc, submitted a brief and
argued for amicus curiae, United States of America. Eliot D. Prescott and
Jane R. Rosenberg, Assistant Attorneys General, Attorney General's Office,
State of Connecticut, Hartford, Ct, submitted a brief for amicus curiae,
State of Connecticut. Donald W. Garner, Pepperdine University Law School,
Malibu, Ca, submitted a brief for amici curiae, American Medical Association,
American Heart Association, American Lung Association, American Cancer Society,
Center for Science in the Public Interest, Public Citizen, Inc., Medical
Society of the State of New York, Protect Our Youth, New York Public Interest
Research Group, Project Friend, League of Women Voters of New York State,
Campaign for Tobacco-Free Kids, The Diocese of Brooklyn Drug Prevention
Program, Smokefree Educational Services, Inc., New York State Occupational
Therapy Association, Coalition for Smokefree Harlem, The Heart of Harlem
Cardiovascular Disease Prevention Program, Boriken Neighborhood Health Center,
Bushwick Community Service Society, New York County Medical Society, Unidos
Coalition, New Jersey Gasp, Alliance for Smoke-Free Air, Montefiore Medical
Center/Albert Einstein Cancer Center. Arthur N. Eisenberg, New York Civil
Liberties Union, New York, NY submitted a brief for amicus curiae, New York
Civil Liberties Union. Richard A. Samp and Daniel J. Popeo, Washington Legal
Foundation, Washington, DC submitted a brief for amicus curiae, Washington
|||Before: McLAUGHLIN, Calabresi, Sotomayor, Circuit Judges.
|||The opinion of the court was delivered by: McLAUGHLIN, Circuit Judge
|||August Term 1999
|||Argued: September 7, 1999
|||Appeal from a judgment of the United States District Court for the Southern
District of New York (Batts, J.), enjoining the enforcement of a New York
City ordinance, the "Youth Protection against Tobacco Advertising and Promotion
Act," and declaring the ordinance preempted under the Federal Cigarette
Labeling and Advertising Act, 15 U.S.C. § 1331, et seq., and the Supremacy
Clause of the United States Constitution.
|||AFFIRMED in part, REVERSED in part, and REMANDED.
|||This appeal stirs up a volatile mix of anti-tobacco legislation, federal
preemption and First Amendment limitations upon commercial speech.
|||In early 1998, New York City enacted Local Law No. 3. It is entitled the
"Youth Protection Against Tobacco Advertising and Promotion Act," and is
codified as Article 17-A to Title 27, Chapter 1, subchapter 7, of the New
York City Administrative Code §§ 27-508.1 to 27-508.6 ("Article
17-A"). Article 17-A prohibits most outdoor advertising of tobacco products
(other than tobacco advertisements on motor vehicles) within one thousand
feet of any school building, playground, child day care center, amusement
arcade or youth center. It also prohibits most indoor advertising in the
same areas if the advertisements can be seen from the street. There is one
exception to the ban: a single, black-and-white, text-only "tombstone" sign
stating, "TOBACCO PRODUCTS SOLD HERE," may be placed within ten feet of
an entrance to a store where tobacco products are sold.
|||Section 1 of Local Law 3 contains a "Declaration of legislative findings
and intent." According to the Declaration, Article 17-A's purpose is "to
strengthen compliance with and enforcement of laws prohibiting the sale
or distribution of tobacco products to children and to protect children
against such illegal sales."
|||Article 17-A also contains a severability clause, stating that if any
portion of the ordinance should be found invalid, this will not affect the
|||On the day that Mayor Giuliani signed Article 17-A into law, the plaintiffs,
various supermarket and advertising associations (collectively, the "Advertisers")
brought this § 1983 action against New York City, Mayor Giuliani, and
two other city officials responsible for enforcing Article 17-A (collectively,
the "City") in the United States District Court for the Southern District
of New York (Batts, J.). The Amended Complaint seeks declaratory and injunctive
relief. It alleges that: (1) Article 17-A is preempted by the Federal Cigarette
Labeling and Advertising Act ("FCLAA"), 15 U.S.C. § 1331, et seq. (1994),
and therefore violates the Supremacy Clause of the United States Constitution;
and (2) Article 17-A unconstitutionally restricts commercial speech in violation
of the First Amendment. After some discovery, all parties moved for summary
|||Relying heavily on Vango Media, Inc. v. City of New York, 34 F.3d 68 (2d
Cir. 1994), the district court found that Article 17-A was preempted by
the FCLAA's preemption provision: "No requirement or prohibition based on
smoking and health shall be imposed under State law with respect to the
advertising or promotion of any cigarettes the packages of which are labeled
in conformity with the provisions of this chapter." 15 U.S.C. § 1334(b).
|||Noting that § 1334(b) applies to laws of political subdivisions,
as well as states, see id. § 1332(3), the district court found that
the express language of the preemption provision embraced Article 17-A.
The court rejected the City's argument that it should look to congressional
intent to determine the preemptive scope of the provision. The district
court found no need to examine congressional intent "in light of the fact
that both the Supreme Court and the Second Circuit have directed that reliance
on the express preemption provision is appropriate." Accordingly, the court
awarded the Advertisers summary judgment and permanently enjoined the enforcement
of Article 17-A. The district court did not reach the Advertisers' First
|||The City now appeals. Several amici curiae have weighed in on both sides
of the dispute.
|||We review a district court's award of summary judgment de novo, drawing
all inferences and resolving all ambiguities in favor of the nonmoving party.
See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). Summary judgment
is proper only "if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
|||We are asked to determine whether and to what extent Article 17-A is preempted
by the FCLAA. The district court concluded that the FCLAA preempted Article
17-A in its entirety. We conclude, however, that the FCLAA only partially
preempts Article 17-A. While the ordinance's "tombstone" provision is preempted,
the restrictions on advertising within a thousand feet of a school or playground,
etc., may stand.
|||A. Preemption Principles
|||The Constitution directs that the laws of the United States "shall be
the supreme Law of the Land; . . . any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding." U.S. Const. Art. VI, cl.
|||2. Under the doctrine of preemption, a corollary to the Supremacy Clause,
any state or municipal law that is inconsistent with federal law is without
effect. See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819). Federal
law may preempt state and municipal law expressly or impliedly. See, e.g.,
Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n,
461 U.S. 190, 203-204 (1983). Where, as here, a statute expressly preempts
state law, our task is to "identify the domain expressly pre-empted." Cipollone
v. Liggett Group, Inc., 505 U.S. 504, 517 (1992).
|||As the Supreme Court has recently emphasized, we must read express preemption
provisions in light of two well settled principles. First, our interpretation
of the provision is guided by the principle that "the purpose of Congress
is the ultimate touchstone in every pre-emption case," Medtronic v. Lohr,
518 U.S. 470, 485 (1996) (citation and internal quotations and alteration
omitted); and we discern congressional intent not only from the language
of the preemption statute, but also from the statutory framework surrounding
the provision, the "structure and purpose of the statute as a whole," and
our "reasoned understanding of the way in which Congress intended the statute
and its surrounding regulatory scheme to affect business, consumers, and
the law." Id. at 486 (internal quotations omitted). Second, because of federalism
concerns, we must interpret Congress's intent strictly, beginning with the
presumption that Congress did not intend to displace state law. See New
York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins.
Co., 514 U.S. 645, 654 (1995). Accordingly, we will not find preemption
"unless that was the clear and manifest purpose of Congress." Medtronic,
518 U.S. at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218,
|||A. The Preemptive Scope of the FCLAA
|||We start with the FCLAA's preemption language: "No requirement or prohibition
based on smoking and health shall be imposed under State law with respect
to the advertising or promotion of any cigarettes the packages of which
are labeled in conformity with the provisions of this chapter." 15 U.S.C.
§ 1334(b). Unhappily, this text provides little insight into the preemptive
scope intended by Congress. The ambiguity resides primarily in the open-ended
language extending preemption to obligations "with respect to" advertising
and promotion of cigarettes.
|||Read literally, these words could be misunderstood to preempt every conceivable
obligation having a relationship - however evanescent - to the advertising
and promotion of cigarettes. But this hyper-literal approach would yield
results that Congress surely did not intend. To take an absurd example,
it could divest states and municipalities of authority to prevent tobacco
advertisers from posting their ads in public buildings even though smoking
is legally prohibited there. Or to borrow another example mentioned by our
sister circuit, it could lead to the Conclusion that "states [are] without
power to prohibit a cigarette company from handing out free cigarettes in
an elementary school yard." Federation of Advertising Indus. Representatives,
Inc. v. City of Chicago, Nos. 98-3191, 99-1115 & 99-1516, ___F.3d___, ___,
1999 WL 682015 at *4 (7th Cir. Sept. 1, 1999).
|||We decline to read § 1334(b) so crudely. As Judge Learned Hand has
cautioned, "[t]here is no more likely way to misapprehend the meaning of
language - be it in a constitution, a statute, a will or a contract -than
to read the words literally, forgetting the object which the document as
a whole is meant to secure." Central Hanover Bank & Trust Co. v. Commissioner,
159 F.2d 167, 169 (2d Cir. 1947). And this is especially true in the preemption
context, where "the purpose of Congress is the ultimate touchstone," and
an overly-expansive, literal interpretation could subvert the presumption
against preemption. The Supreme Court recently cautioned against "uncritical
literalism" when interpreting similarly open-ended language in the express
preemption provision of another federal statute. Travelers Ins., 514 U.S.
at 656 (interpreting the Employee Retirement Income Security Act's preemption
provision, which extended to state laws that "relate to" any employee benefit
plan). And while our analysis of § 1334(b) must perforce begin with
its text, "our interpretation of that language does not occur in a contextual
vacuum." Medtronic, 518 U.S. at 485.
|||Relying on our decision in Vango Media, the district court refused to
look beyond the language of § 1334(b) or even to consider congressional
intent. Vango Media, however, should not be read to "make a fortress out
of the dictionary." Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.) (Learned
Hand, J.), aff'd, 326 U.S. 404 (1945). It is not without significance that,
while our analysis of § 1334(b)'s preemptive scope in Vango Media began
with the language of the provision, see Vango Media, 34 F.3d at 72-74, we
also went further to consider the stated purpose of the federal act, its
historical context, and its legislative history. See id. at 74-75. And while
we noted that § 1334(b)'s "with respect to" language connotes a potentially
expansive preemptive scope, see id. at 73-74, we gave effect to that language
only because we found that doing so would implement congressional intent.
See id. at 74. Thus, our "touchstone" remained the legislative purpose underlying
§ 1334(b), as discerned not only from the language of that provision,
but also from other indicia of congressional intent. We adhere to that approach.
Felicitously, Congress has provided valuable insight into the intended scope
of preemption under the FCLAA:
|||It is the policy of the Congress, and the purpose of this chapter, to
establish a comprehensive Federal program to deal with cigarette labeling
and advertising with respect to any relationship between smoking and health,
|||(1) the public may be adequately informed about any adverse health effects
of cigarette smoking by inclusion of warning notices on each package of
cigarettes and in each advertisement of cigarettes; and
|||(2) commerce and the national economy may be (A) protected to the maximum
extent consistent with this declared policy and (B) not impeded by diverse,
non-uniform, and confusing cigarette labeling and advertising regulations
with respect to any relationship between smoking and health. 15 U.S.C. §
|||Two Conclusions emerge when this statement is read in conjunction with
the FCLAA's other provisions. First, Congress sought to inform the public
about the health dangers of smoking by regulating advertising and labeling
information. See id. § 1333 (detailing content and format requirements
for health warnings on cigarette packages, advertisements, and billboards).
Second, recognizing the potential burdens on the national economy that might
result from the proliferation of "diverse, non-uniform, and confusing" advertising
standards, Congress reserved to itself the power to regulate cigarette advertising
information. See id. § 1334(b) (prohibiting regulations "with respect
to" cigarette advertising). As the legislative history confirms, preemption
was needed "to avoid the chaos created by a multiplicity of conflicting
regulations." S. Rep. No. 91-566 (1969), reprinted in 1970 U.S.C.C.A.N.
|||We must therefore read § 1334(b) in light of: (1) Congress's "comprehensive
Federal program" to control cigarette advertising information; and (2) its
concomitant concern with avoiding "diverse, non-uniform, and confusing"
advertising standards. 15 U.S.C. § 1331. This is the same approach
we took in Vango Media. There, we held that a New York City ordinance requiring
advertisers to display one anti-smoking public health message for every
four tobacco advertisements displayed on New York City taxi cabs was preempted
under § 1334(b). See Vango Media, 34 F.3d at 70. By requiring advertisers
to display certain messages about smoking and health (other than those required
by the FCLAA), the ordinance risked creating nonuniformity with Congress's
federally mandated warning scheme. Accordingly, we found that the ordinance
imposed a requirement "with respect to advertising" within the meaning of
§ 1334(b). It obstructed Congress' federal scheme to regulate advertising
information and risked creating the sort of "diverse, non-uniform, and confusing"
standards that Congress wanted to avoid. Id. at 74. Noting the laudable
goal of informing the public, through advertising, about the health dangers
of smoking, we nevertheless held that the means chosen violated the preemption
provision which Congress had enacted "in an effort to avoid the chaos of
multiple diverse regulations." Id. at 70.
|||This approach tracks the Supreme Court's interpretation of § 1334(b)
in Cipollone. Although the Court could not garner a majority to agree on
how § 1334(b) should be applied in that case itself, a majority of
the Justices did focus their respective analyses on Congress's stated intent
to avoid "diverse, non-uniform, and confusing" advertising standards. See
Cipollone, 505 U.S. at 529 (plurality opinion) (explaining that while failure
to warn claims (which were preempted) involve "`diverse, non-uniform, and
confusing' standards," intentional fraud claims (which were not preempted)
do not); see id. at 541 (Blackmun, J., Concurring in part and Dissenting
in part) (criticizing the plurality for failing to follow consistently Congress's
stated purpose of avoiding "diverse, non-uniform, and confusing regulations").
|||With this understanding of congressional purpose as our "touchstone,"
we next turn to Article 17-A, bearing in mind, of course, the presumption
against preemption. See Cipollone, 505 U.S. at 518.
|||A. Article 17-A: The Tombstone Provision
|||One provision of Article 17-A clearly presents problems similar to the
ordinance in Vango Media. Specifically, the tombstone provision limits advertising
information in the restricted areas to black-and-white signs stating "TOBACCO
PRODUCTS SOLD HERE;" colors, nontextual images, and non-conforming messages
are prohibited. Like the ordinance in Vango Media, the tombstone provision
thus creates obligations directly pertaining to the nature and content of
advertising information. This risks the sort of "diverse, non-uniform, and
confusing" advertising standards that Congress expressly sought to avoid.
Congress could not have intended to let municipalities promulgate their
own unique regulations governing the content and format of cigarette advertising
information. See Phillip Morris Inc. v. Harshbarger, 122 F.3d 58, 76 (1st
Cir. 1997) (noting that "a quintessential state requirement `with respect
to advertising and promotion' would be a law mandating changes or additions
to the content of cigarette advertisements") (alteration omitted). Accordingly,
we conclude that Article 17-A's tombstone provision is a regulation "with
respect to" advertising within the meaning of § 1334(b).
|||The City nevertheless contends that the tombstone provision is not preempted
by § 1334(b). The City makes two arguments. Neither is persuasive.
|||First, the City asserts that the tombstone provision is not a "requirement
or prohibition" within the meaning of § 1334(b) because it is permissive,
rather than mandatory. We disagree. Although the tombstone provision is
"permissive" in the literal sense that an advertiser is not "required" to
post a tombstone sign at all, this does not meaningfully distinguish it
from the "requirement" we found preempted in Vango Media. That ordinance
was similarly "permissive" in that it did not require advertisers to display
ads. But if they chose to do so, they had to comply with certain conditions,
namely, the posting of a certain number of anti-smoking public health messages.
It is clear that this sort of "permissiveness" - vaguely reminiscent of
Hobson's choice - is not dispositive. We find that the tombstone provision
imposes a "requirement or prohibition" within the meaning of § 1334(b);
it is a "positive enactment" of a political subdivision that "imposes conditions
on [the] display of cigarette advertisements." Vango Media, 34 F.3d at 72,
|||Second, the City makes the startling contention that the tombstone provision
- and indeed, the entirety of Article 17-A - is not "based on smoking and
health" within the meaning of § 1334(b), but is instead aimed solely
at promoting law enforcement. For support, the City points to the "Declaration
of legislative findings and intent," which announces that the purpose of
the ordinance is: "to strengthen compliance with and enforcement of laws
prohibiting the sale or distribution of tobacco products to children and
to protect children against such illegal sales." We are unpersuaded by this
|||We do not blindly accept the articulated purpose of an ordinance for preemption
purposes. See Vango Media, 34 F.3d at 73. If that were the rule, legislatures
could "nullify nearly all unwanted federal legislation by simply publishing
a legislative committee report articulating some state interest or policy
- other than frustration of the federal objective - that would be tangentially
furthered by the proposed state law." Gade v. National Solid Wastes Management
Assoc., 505 U.S. 88, 106 (1992) (quoting Perez v. Campbell, 402 U.S. 637,
651-52 (1971)). That the City Council drafted a declaration of intent that
recites a law enforcement goal while scrupulously avoiding any mention of
the word "health" simply cannot control our preemption analysis. Instead,
we follow Vango Media and consider both the purpose of the ordinance as
a whole, and the ordinance's actual effect, to determine whether it is "based
on smoking and health." See Vango Media, 34 F.3d at 73 (citing Gade, 505
|||The Vango Media analysis makes clear that Article 17-A is indeed "based
on smoking and health." We agree with the district court that the legislative
history of the ordinance is "replete" with references to the twin purposes
of promoting "health" and combating the dangers of smoking. *fn1
Moreover, the effect of Article 17-A is clearly to promote health because
the underage tobacco sales prohibitions whose enforcement it explicitly
seeks to promote are inherently based on health concerns.
|||We find that Article 17-A's tombstone provision is a "requirement . .
. based on smoking and health . . . with respect to advertising or promotion
of cigarettes." Accordingly, it is preempted under § 1334(b). We therefore
affirm that part of the district court's judgment holding that this portion
of Article 17-A was preempted.
|||A. Article 17-A: The 1000-Foot Verboten Zone
|||We reach a different Conclusion as to the remaining provisions of Article
17-A, which essentially regulate the physical placement of advertising.
As to these provisions, we join the only two federal courts of appeals that
have addressed § 1334(b)'s effect on similar laws and hold that they
are not preempted. See Federation of Advertising Indus. Representatives,
Inc. v. City of Chicago, Nos. 98-3191, 99-1115 & 99-1516, ___F.3d___, ___,
1999 WL 682015 (7th Cir. Sept. 1, 1999); Penn Advertising of Baltimore,
Inc. v. Mayor of Baltimore, 63 F.3d 1318 (4th Cir. 1995), vacated and remanded
on other grounds, 518 U.S. 1030 (1996), readopted as modified on remand,
101 F.3d 332 (4th Cir. 1996)). Specifically, we find that these location
restrictions do not impose obligations "with respect to" advertising as
that phrase is used in § 1334(b).
|||Article 17-A's location restrictions do not implicate the same concerns
as the ordinance's tombstone provision or the ordinance in Vango Media.
The location restrictions do not touch upon Congress's "comprehensive Federal
program" to control cigarette advertising information. The restrictions
do not, for example, burden advertisers with a duty to warn. Nor do they
impose content and format requirements on advertising information.
|||Instead, those provisions restrict only the physical placement of tobacco
advertising signs in a manner akin to a run of the mill zoning regulation.
To be sure, Article 17-A's restrictions are unusual in that they ban only
signs advertising tobacco, and not other products. *fn2
However, this disparity does not interfere with the congressional purpose
underlying the FCLAA. We do not see - and the Advertisers do not explain
- how mere location restrictions can lead to the sort of "diverse, non-uniform,
and confusing" advertising standards that Congress sought to avoid when
it enacted § 1334(b). See Plumbing Indus. Bd., Plumbing Local Union
No. 1 v. E.W. Howell Co., 126 F.3d 61, 67 (2d Cir. 1997) (discussing ERISA's
preemption provision and stating that "a party challenging a statute must
convince a court that there is something in the practical operation" of
the statute to show that it is the type of law that Congress wanted to preempt).
Divergent local zoning restrictions on the location of sign advertising
are a commonplace feature of the national landscape and cigarette advertisers
have always been bound to observe them. Thus, with or without Article 17-A,
a cigarette advertiser will still have to ascertain where it can permissibly
advertise in light of diverse local zoning ordinances. And no party suggests
that such zoning regulations fall within the intended purview of §
1334(b). We see no reason to treat the location restrictions before us any
|||We also note that the presumption against preemption is particularly strong
here, as these provisions are the sort thought to lie within the heartland
of the states' historic police powers. See Medtronic, 518 U.S. at 485. Zoning
regulations on the placement of outdoor advertisements have long been held
to lie peculiarly within the states' historic police powers. See Packer
Corp. v. Utah, 285 U.S. 105, 111 (1932) (upholding a Utah statute banning
outdoor advertisements of cigarettes and describing it as a "wholly intrastate"
prohibition); see also Federation of Advertising, ___F.3d___, ___, 1999
WL 682015 at *5 (citing cases). So too, regulations directed at the safety
and welfare of children "lie at the heart of the states' police powers."
Toy Mfrs. of America, Inc. v. Blumenthal, 986 F.2d 615, 620 (2d Cir. 1992).
|||Article 17-A's location restrictions embody both of these intensely local
areas of regulation. Although Congress can choose to preempt such state
police power regulations if its intent to do so is "clear and manifest,"
Vango Media, 34 F.3d at 72 (quoting Cipollone, 505 U.S. at 516) (internal
quotations omitted), we find no such clear intent here. To the contrary,
the legislative history of § 1334(b) suggests that Congress wanted
to give such regulations a wide berth. See S. Rep. No. 91-566, reprinted
in 1970 U.S.C.C.A.N. at 2663 (noting that § 1334(b) is "narrowly phrased"
and "would in no way affect [local power] with respect to the taxation or
the sale of cigarettes to minors, or the prohibition of smoking in public
buildings, or similar police regulations" (emphasis added)).
|||In light of our determination that only the tombstone provision is preempted
by the FCLAA, we must determine whether that provision is severable from
the remaining portions of the ordinance. Severability questions are governed
by state law. See Environmental Encapsulating Corp. v. City of New York,
855 F.2d 48, 60 (2d Cir. 1988). In New York, the test for severability is
"whether the Legislature `would have wished the statute to be enforced with
the invalid part exscinded, or rejected altogether.'" See In re New York
State Superfund Coalition, Inc. v. New York State Dep't of Envtl. Conservation,
75 N.Y.2d 88, 94, 550 N.E.2d 155, 157, 550 N.Y.S.2d 879, 881 (N.Y. 1989)
(quoting People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N.Y. 48,
60, 129 N.E. 202, 207 (N.Y. 1920)).
|||We find that the tombstone provision is indeed severable from the rest
of Article 17-A. That the City Council would have wished the bulk of Article
17-A to be upheld despite the invalidity of the tombstone provision seems
beyond doubt. Severance of the tombstone provision would not, in our view,
significantly interfere with the central thrust of Article 17-A - to limit
cigarette advertising in areas where young people are likely to congregate.
This Conclusion is reinforced by the City Council's inclusion of an express
severability clause indicating its general desire to salvage any valid portions
of the ordinance in the event that another portion is adJudged invalid.
See National Adver. Co. v. Town of Niagara, 942 F.2d 145, 148 (2d Cir. 1991)
(New York law) (noting that "[t]he preference for severance is particularly
strong when the law contains a severability clause").
|||We conclude, therefore, that while the tombstone provision of Article
17-A is preempted by § 1334(b), the remaining provisions of the ordinance
are valid and enforceable.
|||II. First Amendment
|||The parties urge us to decide whether Article 17-A unduly restricts commercial
speech in violation of the First Amendment. However, because the district
court granted summary judgment to the Advertisers on preemption grounds
alone, it did not pass upon the merits of the First Amendment claim. In
our view, the district court should have the opportunity to consider this
issue in the first instance. See Sullivan v. Syracuse Hous. Auth., 962 F.2d
1101, 1110 (2d Cir. 1992). We remand so that it may do so.
|||We have considered the parties' remaining contentions and find them to
be without merit. Accordingly, we AFFIRM the judgment of the district court
insofar as it held that the tombstone provision of Article 17-A is preempted
under the FCLAA, REVERSE insofar as it held that the remaining provisions
of Article 17-A are preempted, and REMAND for further proceedings consistent
with this opinion.
The Health Committee of the City Council convened on several occasions to
consider health-related concerns. The first speaker at the first such meeting,
for instance, endorsed the ordinance specifically because "children's lives
are at risk." Speaker Peter Vallone, the primary sponsor of the law, himself
detailed the health risks of smoking and later urged that "the health and
safety of our kids just can't wait." Another City Council member was just
as emphatic that "it is a health issue, period." We note also that the law
itself provides extensive Discussion of the disturbing rise in teen smoking,
attributed in part to a proliferation of ads portraying smoking as "safe
We express no opinion whether this targeting of tobacco advertising runs
afoul of the First Amendment. See infra at Section II. In this Discussion,
we conclude only that New York City's regulation of ad placement is not
preempted under the FCLAA.
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