Table 1

Successful and unsuccessful legal challenges against local tobacco control ordinances

CommunityDateGoverning bodyType of ordinanceChallenged byTobacco fundedLegal issuesPublic health community responseOutcome
ACS, American Cancer Society; AHA, American Heart Association; ALA, American Lung Association; ANR, Americans for Nonsmokers’ Rights; BHRA, Beverly Hills Restaurant Association; NSA, National Smokers’ Alliance; PM, Philip Morris and PM USA; RJR, RJ Reynolds Tobacco; TI, Tobacco Institute (the industry’s lobbying arm until 1998).
Youth access ordinances
Rancho Mirage, CA Bravo Vending v. City of Rancho Mirage, 16 Cal App. 4th 383, (1993)541990City councilVending machineBravo Vending represented by Munger, Tolles & Olsen of Los Angeles, paid for by the tobacco industry54Yes54State preemption in Cal. Penal Code § 30855Ordinance upheld by trial and appellate courts55
East Brunswick, NJ C.I.C. Corp. v. Township of East Brunswick , 638 A.2d 812 (N.J., 1994)1990Town councilVending machineVending machine corporationsYes41Equal protection and state preemption in 1950s tax codes39,42Amicus curie briefs from ACS, ALA, AHA, and NJ GASP39Overturned by trial judge but reversed on appeal and upheld by Supreme Court39,42
Bowie, MD Takoma Park, MD Allied Vending, Inc. v. City of Bowie, 631 A.2d 77 (Md., 1993) suits joined1991; 1990City council; city councilVending machineAllied Vending Machines, Inc. and D.C. Vending Co.56State preemption in MD. Ann. Code of 1957, art. 56, §607–63156Ordinances upheld by county circuit court, but decision reversed by appellate court and ordinances overturned56
New York, NY Vatore et al v, Commissioner of Consumer Affairs of the City of New York, et al, 83 N.Y.2d 645 (1994)1992City councilVending machineBob Vatore, a cigarette vending machine lessor, restaurant and bar owners.57Preemption in state law regulating sale of tobacco products at issue in the trial court. In the appellate division & Ct of Appeals, decisions based on new state law, NY CLS Pub Health 139957Ordinance upheld by trial court; decision reversed by appellate division, due to new state law in effect in 1993. Court of Appeals reversed and reinstated the ordinance. They said that the new state law contained no general preemption clause, only a specific preemption on ordinances governing free distribution of tobacco products, not sales.57
Provincetown, MA Take Five Vending, Ltd., et al v. Town of Provincetown, 415 Mass. 741 (1993)1992Town councilVending machineTake Five Vending, Ltd. and Coin Machine Industries Association of Massachusetts58Conflict with state licensing statute for cigarette vending machines and federal due process and equal protection claims58Superior court transferred the case to appellate court on its own initiative. The appellate court found that the ordinance was not inconsistent with state licensing statutes and did not violate the federal constitution.58
Troy, MI T.D. Rowe Vend-A-Matic, et al v. City of Troy, Circuit Court for the County of Oakland, MI, Case No. 96–5241491996City councilVending machineT.D. Rowe Vend-A-Matic, Michigan Coin Machine Operators Assn, Michigan Distributors & Vendors Assn59–61Due process claims, implied preemption in state vending machine regulations, and express preemption in a state law preventing placement of vending machines in areas accessible to minors59–61ALA and ACS filed amicus curie briefs on behalf of the ordinance. They were supported by AHA and local health groups.59–61City lost at the trial level and decided not to appeal, citing time and money concerns.59–61
Deptford, NJ2002Township councilVending machinePenn Vending Co.62Ordinance unfair and should not apply to Penn’s remote control operated machines62Case pending in Superior Court of Glouchester County62
Smokefree ordinances
Beverly Hills, CA1987City councilSmokefree restaurantsBeverly Hills Restaurant Assn, local restaurants63Yes. TI created BHRA and paid its legal fees63unfair competition, unconstitutional64,65ordinance amended from 100% smokefree to 60% nonsmoking seats in restaurants; suit dismissed63
Lodi, CA1990City councilSmokefree public placesLocal restaurant owners, Taxpayers United for Freedom (TUFF)63Yes. RJR and PM gave media advice and loans to TUFF63Due process, 14th amendment63Health groups supported referendum fight on the ordinance63Ordinance upheld63
San Luis Obispo, CA1990City councilSmokefree restaurants, bars, public places and workplacesLocal business ownersDue process, 14th amendmentOrdinance upheld
Los Angeles, CA Browne v. Russell, 27 Cal. App. 4th 1116.1993City councilSmokefree restaurantsMembers of Los Angeles Hospitality Coalition sponsored referendum to overturn38Yes, $206195 from tobacco sources38Lawsuit really about city clerk’s refusal to file all the signatures needed for referendum38ANR and ALA Los Angeles intervened in suit on behalf of the city38,66Trial court granted writ of mandate to force clerk to accept signatures. Court of Appeal reversed; signatures ruled invalid under 339 of city of Los Angeles election code38
San Francisco, CA1994Board of supervisorsSmokefree workplaces & restaurantsPhilip Morris, local restaurant owners, San Francisco Hotel Association6Yes6Board exceeded legislative authority6Suit dropped on passage of state-wide law, AB 13, which prohibited smoking in all workplaces including restaurants and bars
Puyallup, WA1994City councilSmokefree restaurantsLocal restaurant owners28,29Yes28,29,67State preemption28,29None28,29City rescinded ordinance; suit dropped28,29
Plano, TX1994City councilSmokefree restaurantsLocal restaurant owners68No evidence located68Unfair competition, loss of business68No evidence located68Ordinance amended; suit dropped68
Suffolk County, NY The Sayville Inn 1888 Corp. v. County of Suffolk 98-CV-45271994Local legislatureSmokefree restaurants and restaurant bar areasLocal restaurant owners69Unfair competition, ordinance unconstitutional69Amicus curie brief filed by the American Cancer Society69Ordinance upheld by federal district court, appeal pending69
Las Cruces, NM1995City councilSmokefree restaurants & public places12 local restaurant owners70,71Unfair competition, exemptions unreasonable70,71Ordinance upheld70,71
Mesa, AZ1996Referedum passed by voters then enacted by city councilSmokefree workplaces, public places, restaurants and restaurant bars8 local bar and restaurant owners19Yes, during referendum campaign TI gave $18165019Unfair competition since stand alone bars were exempt from ordinance19Money from ACS, ALA, and AHA during the referendum campaign19City council made technical amendment to the ordinance to eliminate the problem without substantially changing the ordinance. Lawsuits dropped19
Corvallis, OR Oregon Restaurant Ass’n v. City of Corvallis, 999 P.2d 518 (Or. App., 2000)1997City councilSmokefree restaurants and barsOregon Restaurant Association72,73Yes, for referendum campaign34,74Preemption; a state law exists which exempts bars & taverns72,73Donations to Citizens for a Healthy Workplace campaign (approximately $8,000 from the ACS)74Ordinance upheld by court72,73
Marquette, MI Michigan Restaurant Ass’n v. City of Marquette, 644 N.W.2d 7621997City commissionSmokefree restaurants, workplaces & public placesMichigan Restaurant Association, local restaurants & Michigan Chamber of Commerce22MRA is a PM ally16,17,75 and they said at a 1997 city commission meeting that they received tobacco industry funding21State preemption in the Code of Public Health restricts local governments22Amicus curie briefs filed by ANR, ACS and ALA20,21Ordinance overturned by trial court, appeals court, and refused to be heard by MI Supreme Court22
Fort Wayne, IN Independent Rest Assn of Northeastern Indiana, et al v. The Common Council of the City of Fort Wayne, Indiana, et al1998City councilSmokefree restaurants & public placesFort Wayne Hospitality Assn; Independent Restaurant Assn of Northern Indiana76,7714th amendment; equal protection, violation of state open meetings law76,77Ordinance upheld by federal district court76,77
Montgomery County, MD Montgomery County, Maryland, et al. v. Anchor Inn Seafood Restaurant, 822 A.2d 429 (2003)1999County council, acting as the board of healthSmokefree restaurants and barsOver 200 local restaurants and businesses, including the National Smokers’ Alliance, a tobacco industry front group78–81Yes. NSA paid the legal fees for the lawsuit78–81Plaintiffs argued that since the county council acted as a Board of Health, without the approval of the County Executive, that the ordinance was invalid78–81Montgomery Smokefree Coalition and ACS helped draft the ordinance and provided educational assistance78–81The trial and appellate courts agreed that the county council had overstepped its authority and invalidated the ordinance78–81
Princeton, NJ LDM Inc. v. Princeton Regional Health Com’n, 764 A.2d 507 (N.J. Super.L., 2000)2000Regional health commissionSmokefree restaurants, workplaces, bars & public placesNational Smokers? Alliance & local restaurant owners82–84Yes. NSA is a tobacco industry front group34,35State preemption82–84Amicus curie briefs from NJ Breathes82–84Ordinance overturned by court82–84
East Greenwich, RI2000Town councilSmokefree restaurantsRhode Island Hospitality & Tourism Assn., local restaurant owners85–88Plaintiffs? lawyer, Brian A. Goldman, is a lobbyist for PM85–88State preemption, state law does not grant the town the right to legislate this issue85–88Amicus curie briefs from ALA, AHA85–88Upheld at trial and appeal. Supreme Court also upheld saying that state law sets a floor, not a ceiling of smoking standards”85–88
Ames, IA Cyclone Truck Stop, et al. v. City of Ames, IA 661 N.W.2d 150 (2003)2001City councilSmokefree restaurants & public placesLocal restaurant owners7,44,45,47,49,50Yes7,48State preemption7,44,45,47,49,50Amicus curie briefs; education campaigns7,44,45,47,49,50Ordinance upheld by trial court; IA Supreme Court reversed, finding that there was preemption in a state law allowing for designated smoking areas7,44,45,47,49,50
Helena, MT2001Referendum passed by voters then enacted by city commissionSmokefree restaurantsLocal casino owners and smokers89Preemption in Montana Clean Indoor Air Act89,90Health groups have filed suit against the state preemption law and continue an education campaign90City court judge ruled the ordinance unconstitutional because it does not allow violators to have a jury trial. The city has appealed, but the issue may be moot since the state subsequently passed a preemption bill89,90
Colebrook, NH2002Ordinance passed twice at town meetingSmokefree restaurantsColebrook House, a local restaurant91–93Implied state preemption92–94ANR helped with legal briefs, NH Smokefree Alliance recruited Dr C Everett Koop in support of the ordinance; NH Lung Association and ACS gave educational support95Trial court ruled that the town had the right to regulate smoking in restaurants, as long as local laws were not less restrictive than state laws. The case was appealed to the NH Supreme Court which heard arguments in July 2003.92,93
Nassau County, NY2002Local legislatureSmokefree restaurants, bars and workplaces6 local restaurants and business ownersPlaintiffs’ lawyer, Arthur Kremer, is a former PM lobbyist96–100Plaintiffs alleged that the ordinance was unconstitutionally vague, violated federal due process, and violated state environmental quality review standards96–100ACS and other health groups held a press conference in support of the ordinance96–100Federal court issued preliminary injunction. The county has appealed the injunction, but with the statewide smoking prohibition in effect in New York, the case may be dismissed as moot.96–100