Philip Morris Sues Village of Haverstraw

Cigarette wars light up as Philip Morris leads coalition of seven tobacco companies and the NY Association of Convenience Stores in lawsuit against Village of Haverstraw

Rockland County Times

Earlier this year, the Village of Haverstraw, working with POW’R Against Tobacco, took the unprecedented step of banning retail displays of cigarette products in their stores, forcing cigarettes and cigars out of sight of customers.

The rationale for the ordinance, which is set to go into effect later this year, is that it would reduce the exposure of tobacco products to youths.

But now a new wrinkle has been added to the situation. The New York Association of Convenience Stores (NYACS) and seven tobacco companies are going to court seeking to overturn the impending ban and the village is gearing up for a potentially costly legal fight.

NYACS, Lorillard Tobacco Co., Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Santa Fe Natural Tobacco Co., American Snuff Co. LLC, U.S. Smokeless Tobacco Brands Inc., and John Middleton Co. filed the civil suit Tuesday in U.S. District Court in the Southern District of New York.

In an interview with the Rockland County Times, NYACS spokesman James Calvin described Haverstraw’s law as “an example of the extreme and excessive regulation of tobacco retailing.” He said, “Stores have a fundamental right to display legal products they sell.”

He think the law may be the first of its kind in the entire United States, which is also what POW’R Against Tobacco claimed when it was first announced.

“We think it’s unconstitutional. We are seeking a declaration by the court that it’s unconstitutional and to permanently enjoin the village from enforcing it,” Calvin said.

The village had not contacted his group prior to the law being passed, Calvin said. “We found out about it after the law had been passed.”

Jay Hood, village attorney of Haverstraw, said, “By suing the village over a reasonable display regulation simply shows they are more interested in selling product than the health of our children. This law was intended to keep children from picking up a lifelong and possibly deadly habit. I have not received the complaint as of now but the village intends to handle it in a balanced way which will protect kids but at the same time not cost the village taxpayers’ money to defend. There are outside firms being contacted to possibly handle this at no cost to the village.”

Michael Kohut, mayor of Haverstraw Village, said, “They are big corporate America going after the little guy, basically. I would have hoped Michael Bloomberg would have picked up this instead of the oversized soda law, as the cigarette companies are more likely to get this nullified by going after us because we are the little guy. We knew it was possible they would file suit but I didn’t know for sure that they would.”

He continued, “Ideally the forces opposed to tobacco smoking will come to our aid, because we are not going to bankrupt the village to defend this law. That doesn’t make sense. But if someone outside will take up the cause we will fight it, assuming the board agrees with me.”

The village was encouraged in passing the ordinance by POW’R Against Tobacco, and they are one potential financier of the village’s legal efforts. Describing the village’s next move, Kohut said, “We have the paperwork, I am going to drop it off to Jay Hood (the village attorney). He is in touch with other attorneys in this anti-smoking effort.”

Calvin said he did not have an estimate as to how long the case might take to play out. Haverstraw’s retail display ban goes into effect October of this year.

The village board adopted the measure in April, claiming the sight of packs of cigarettes on a store wall compels minors to start smoking. Under the law, retail shops could continue to sell tobacco, just not display it, instead providing age-verified customers, upon request, with a printed tobacco “menu” to order from.

“Retailers have a fundamental right to communicate with their customers about the products they offer by displaying those products within their own premises,” Calvin said in a release to the media. “The United States and New York State constitutions have long protected this form of commercial speech.”

Defendants in the lawsuit are the Village of Haverstraw and the village agencies and officers that were assigned responsibility for enforcing the tobacco product display ban once it takes effect in October 2012.

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