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NATO Action Results in Repeal of San Diego Advertising Restrictions

MINNEAPOLIS — Yesterday, the San Diego City Council voted unanimously to repeal tobacco advertising restrictions that were first adopted by the city in 1998 and then extended to electronic cigarettes and nicotine e-liquid in June of 2014. This action to repeal the tobacco and electronic cigarette advertising restrictions was a direct result of actions taken by NATO, including a legal commentary letter sent to the San Diego City Council on June 28, 2014, which explained that the advertising restrictions violated the First Amendment of the U.S. Constitution.

The original San Diego ordinance adopted in 1998 prohibited retailers and businesses from placing or displaying (1) any advertising or promotion of tobacco products on a sign in a publicly visible location located within 1,000 feet of a school, playground, recreation center, child care center, arcade or library, and (2) any advertising sign for tobacco products on the inside or outside of the windows or doors of a retail store or business that was visible to the public from outside the establishment. The ordinance was then amended by the San Diego City Council in June of last year to extend the advertising and promotion restrictions to electronic cigarettes and electronic cigarette accessory products.

In its June 28, 2014, letter to the San Diego City Council, NATO explained that the restrictions on tobacco product advertising in San Diego ordinance and the proposed extension of these restrictions to electronic cigarettes, electronic cigarette paraphernalia, and vaping juice, raised significant constitutional issues. 

The First Amendment of the U.S. Constitution protects the right of free speech. Advertising is how manufacturers and retailers “speak” to their customers about their products and the U.S. Supreme Court has held that product advertising, including the advertising of tobacco products, constitutes “commercial speech” and is thus afforded First Amendment constitutional protections. This means that the San Diego advertising restrictions were unconstitutional and needed to be repealed. 

With the action taken by the San Diego City Council to repeal these restrictions, retailers in San Diego that are located within 1,000 feet of a school, playground, recreation center, child care center, arcade or library, are now free to place tobacco advertising signs and promotional materials in their stores so that the signs and displays are visible to the public. Moreover, every retailer in San Diego, regardless of where they are located in the city, can now place tobacco product and e-cigarette advertising signs in their store windows or on their store doors so that the signs are visible to the public from outside the store.

This decision by the San Diego City Council is also important for every tobacco retailer nationwide because it serves as yet another precedent in protecting the right of retailers to advertise legal tobacco and e-cigarette products.

Click here to read a newspaper story published in the San Diego Union Tribune regarding the repeal of the advertising and promotion restrictions.

Thomas A. Briant


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