Somewhere, I know Mayor Bloomberg has a nanny-state bucket list. Here is another one to cross off. The Mayor is setting his sights on cigarettes. No, not smoking them (he’s already banned that just about everywhere), not taxing them (they are already highly taxed), but now, looking at them . From the Times:
Mayor Michael R. Bloomberg, fresh off a defeat in his campaign to limit large servings of sugary drinks, proposed legislation Monday requiring stores to put cigarettes out of public sight and to increase penalties on the smuggling and illegal sales of cigarettes.
Mr. Bloomberg said at a news conference that the proposal would make New York the first city in the nation to keep tobacco products out of sight.
This is an idea directly from Cass Sunstein’s Nudge. In Nudge, Sunstein argues that in cafeterias, when fruit and health foods are placed at eye-level, and junk food are placed out of sight, people are nudges to eat healthier. So of course Mayor Leviathan takes this idea and runs with it, forcing stores to *hide* cigarettes.
This is like a terrible game of peek-a-boo. Fitting for Mayor Nanny. I suppose Bloomberg thinks that people forget about buying cigarettes because they are hidden. Or maybe, someone who goes to a store to buy them, and doesn’t see them, will just decide not to smoke.
Though, the article does have one positive note, for which we can thank Judge Tingling. Bloomberg will go the democracy route, rather than imposing this law by administrative fiat.
The proposal will go to the City Council for its consideration, a step that Mr. Bloomberg skipped when he proposed a ban on sugared drinks bigger than 16 ounces in movie theaters, restaurants and other establishments. That rule went through only the city’s Board of Health, and a state judge ruled a week ago that the board, among other missteps, had exceeded its authority. The city is appealing the ruling.
Separation of powers is always a good thing. By the way Emily Bazelon, Judge Tingling is not by any stretch of the imagination a conservative.
How will this be enforced? Where will the cigarettes have to be stored? Will there be inspections for this?
Now let’s see, is there a First Amendment interest for a Bodega owner to arrange Cigarettes how they wish???
Update: Jacob Sallum adds that Bloomberg’s plan may violate the Federal Cigarette Labeling and Advertising Act:
Bloomberg’s proposal may be vulnerable on legal as well as empirical grounds. Although his wish to make tobacco products invisible does depend on action by the city council, the absence of which helped doom his drink diktat, the rule he seeks seems to run afoul of the Federal Cigarette Labeling and Advertising Act. That 1965 law bars states and municipalities from imposing any “requirement or prohibition based on smoking and health…with respect to the advertising or promotion of cigarettes.” The policy Bloomberg wants certainly seems to fit that description, especially since his premise is that cigarette packages promote smoking.
Bloomberg should have anticipated this complication, since the same federal statute was the basis for a successful challenge to another one of his anti-smoking initiatives, a requirement that merchants display icky, city-designed posters warning customers about the health consequences of the habit and urging them to quit. Like Bloomberg’s limit on soda servings, the poster mandate was imposed by the New York City Department of Health and Mental Hygiene without input from the city council. In 2010 U.S. District Judge Jed Rakoff ruled that it was pre-empted by federal law, and last year the U.S. Court of Appeals for the 2nd Circuit agreed.