Tuesday, March 19, 2013

Mayor Bloomberg: hide the smokes, pass the rubbers!

New York City Mayor Michael Bloomberg--fresh off getting slapped around for his failed attempt to ban large-sized sodas--is at it again. This time, his target is cigarettes and other tobacco products. He's announced a new set of laws designed to limit the visibility of such products in stores:
The proposed law would "prohibit display of tobacco products" in most retail shops, Bloomberg said. "Such displays suggest smoking is a normal activity and invite young people to experiment with tobacco."
Basically, stores that sell tobacco products would have to keep them under the counter, in closed cabinets, or the like where they would be effectively invisible to customers. Stores who derive most of their revenue from tobacco sales proper--tobacco and cigar shops, in other words--would be exempt from the restrictions on the basis that there is already an age limit for customers to enter such stores.

This isn't Bloomberg's first attempt to bring the tobacco industry to heel in New York City. And it's also not his dumbest. That honor would go to the 2009 health department regulation requiring stores selling tobacco products to display graphic warning posters like this one:

The City actually believed it could mandate the posting of such signs wherever cigarettes or other tobacco products were sold. Needless to say, the ordinance was struck down in District Court, a ruling that was upheld in the U.S. Court of Appeals, 2nd District in 2012. Interestingly enough, an attempt by the FDA to use these same sorts of images as labeling requirements was struck down as unconstitutional--for violating the First Amendment--only a month earlier. The NYC ordinance was not held to violate the First, but instead was determined to be in conflict with the Labeling Act of 1965, which made Federal law preemptive on this issue. Thus, the Constitutional issue did not need to be considered. Still, given the smack-down received by the FDA, it seems fairly certain that the NYC ordinance would have been treated similarly, if considered in that light.

So what about this new measure? It's unlikely to come into conflict with any Federal laws or regulations; I don't think there are any, with regard to product placement. Because while it's true stores use placement as a means of advertising (companies pay money for prime shelf space in many  grocery stores and the like), it's not regulated--or regulate-able--advertising.

That said, displaying legally salable products is what stores do; it's been the foundation of our consumer economy since the time of the Industrial Revolution. To suppose that some products need to be squirreled away is, well, un-American. This isn't an issue of brown-papering porn magazines, it's one of simple choice. There's nothing inherently dangerous or harmful in viewing a pack of smokes, anymore than there is in viewing a six pack or a candy bar (one can't help but wonder if these two products are also on Bloomberg's list).

Once upon a time, certain other products were kept "behind the counter," hidden from view. Why? Because of an imagined danger they posed to, say, young people. An example, you say? How about this one:

Remember when one had to walk up to the counter at a drug store and ask for a pack of condoms? The rather silly argument advanced then was that--somehow--condoms seen on a shelf would have a negative effect on the collective morality of society. It was--and still is--a silly argument. What we are talking about here is a simple product with a specific use. Nothing more than that. Having such a thing visible on the shelf has no direct costs to anyone, no identifiable and direct consequences.

By the way, Mayor Bloomberg has been more than happy to dish out the rubbers...

Cheers, all.

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