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The heads of two organizations that claim to represent the interests of thousands of convenience stores and gas stations across New England are petitioning the Board of Alders to reconsider newly adopted restrictions around tobacco advertising — which these industry advocates warn are overly broad and potentially illegal.
The Elicker administration has pushed back, arguing that the city’s new licensing rules are designed to protect public health and are necessary to combat smoke shops’ “blatant advertising” of dangerous products to children.
That latest city-smoke shop dispute has come to the fore in a three-page letter penned by Peter Brennan, the executive director of the New England Convenience Store & Energy Marketers Association (NECSEMA), and by Chris Herb, the president of the Connecticut Energy Marketers Association (CEMA).
Brennan’s and Herb’s letter is addressed to Board of Alders President Tyisha Walker-Myers, bears the subject line “Constitutional Concerns with New Haven’s Tobacco Advertising Restrictions,” and was included as a communication on Monday night’s Board of Alders meeting agenda, meaning that the matter could ultimately come before an aldermanic committee for a public hearing. A spokesperson for NECSEMA said that the letter was sent on Nov. 17.
The letter takes umbrage with a new municipal licensing program for tobacco and vape retailers that the alders approved earlier this year, and that went into effect on Oct. 1. Included in that law are prohibitions against advertising tobacco and smoking products in “public places” — defined in the law as everything from billboards to buildings to store fronts to public transportation vehicles to “all places of public convenience frequented or likely to be frequented by children and youth.”
Brennan and Herb write that their organizations “include numerous New Haven retailers and distributors licensed to sell lawful tobacco and smoking products.” They argue that that these new restrictions around tobacco advertising raise “serious constitutional and legal concerns.”
“As drafted and implemented, the City’s ordinance imposes sweeping, content-based, and speaker-based restrictions on truthful, non-misleading commercial speech directed to adults about lawful products,” they state. They cite federal court decisions in Lorillard Tobacco Co. v. Reilly (2001) and National Association of Tobacco Outlets, Inc. v. City of Worcester (2012) as examples where similar “advertising restraints” have been overturned on First Amendment grounds.
“The ordinance functions as a near-blanket ban on adults’ ability to receive, and retailers’ ability to convey, truthful information about lawful tobacco and smoking products within most ordinary channels of retail communication,” Brennan and Herb write. “As such it violates First Amendment principles and legal precedent, and its overly broad definition of ‘public places’ and its prohibition on ads ‘visible outside’ are not narrowly tailored to address the City’s substantial interest in preventing underage use of tobacco and smoking products – an interest our organizations share with the City.”
The two trade-org reps then call on the city to “suspend enforcement” of the new advertising restrictions and to update the ordinance to “eliminat[e] the blanket prohibition on advertisements visible from outside and the categorical ban on colors, logos, and imagery in adult retail settings” while also targeting such restrictions “only on those formats and locations empirically associated with youth exposure”.
In a follow-up comment sent to the Independent on Tuesday, Brennan and Herb described the city’s new law as “a clear violation of retailers’ First Amendment rights to communicate truthful information to inform their customers in the marketing of legal adult products.”
In written comments provided to the Independent in response to Brennan’s and Herb’s critique, various city officials defended the new smoke shop regulations on legal and public health grounds.
The case law cited by Brennan and Herb “all predates the proliferation of smoke shops and vaping products, and the blatant advertising of these products geared specifically to children, which present new circumstances and novel legal issues that previous cases simply did not address,” city Assistant Corporation Counsel Michael Pinto wrote.
“We’re confident in the city’s ability to make a strong legal defense of our local ordinances,” added Mayor Justin Elicker.
And city Health Director Maritza Bond pointed out that e-cigarettes are widely used by young people, that nicotine “can significantly disrupt adolescent brain development and increase the risk of long-term addiction,” and that exposure to flavored tobacco products “and aggressive retail advertising contributes to youth experimentation and use of vaping products.”
“These findings underline the necessity of New Haven’s measures to regulate the sale and marketing of tobacco and nicotine products,” Bond continued. “Such regulations are both reasonable and essential, aligning with national public health guidelines. While certain trade associations may hold opposing views, my responsibility is to prioritize community health over the interests of the tobacco industry.”
She also noted that “nearly all 194 tobacco and smoking product retailers” in the city have already applied for their licenses “and are working with us to ensure compliance.”