The Fate of Bloomberg’s “Tobacco Peek-A-Boo” Law

March 22nd, 2013

Harverstraw, New York tried to pass a similar law banning the public display of tobacco. Then Floyd Abrams filed a suit, and they settled and repealed the law.

Like New York City, Haverstraw framed its ordinance as a way to keep young people from being tempted to try smoking by the sight of colorful cigarette packs and other products, like snuff and cigars.

The village, Mr. Kohut estimated, has about 15 or 20 stores that sell cigarettes. James S. Calvin, president of the New York Association of Convenience Stores, estimated that the city has more than 10,000 tobacco retailers.

The Village Board passed the ordinance, Local Law No. 5 of 2012, on April 16, and it was supposed to take effect in October. “It was a feel-good moment,” Mr. Kohut said.

Then on June 26, tobacco companies, with the help of the eminent First Amendment lawyer Floyd Abrams, filed a 33-page complaint in federal court, arguing that Haverstraw’s new law violated the industry’s free-speech rights.

Furthermore, the complaint said, “the village may not paternalistically prevent all adult consumers from viewing lawful products in stores so as to keep them out of the view of children.”

The village could not afford to litigate, Mr. Kohut said, so on July 17, it settled by agreeing to repeal the law. “I was never going to put my community in fiscal jeopardy by a prolonged battle with tobacco companies,” he said.

On Aug. 13, the board passed Local Law No. 6, rescinding Local Law No. 5 before it could even get a trial run. This was a lot of lawmaking for Haverstraw. “On an annual basis, we don’t pass a lot of laws,” Mr. Kohut said.

Prepare for future defeat Mayor Leviathan.