Friday, June 04, 2010

Sign Off

As the NY Daily News is reporting, lawsuits have been filed that oppose the Board of Health's gruesome cigarette signage-the ones that force store owners to essentially speak against their own interests. But while the News highlights the role of the manufacturers-always the better villain in their eyes-it is the beleaguered retailers who are losing their first amendment rights: "Big tobacco is trying to force the city to yank graphic anti-smoking posters from thousands of stores that sell cigarettes. Philip Morris, R.J. Reynolds and Lorillard bankrolled a federal suit that says the ads - which must be posted near cash registers - are unconstitutional. The placards contain gruesome pictures of cancer-ravaged lungs, a decaying tooth and a stroke-crippled brain with the message "Quit Smoking Now."

The manufacturers are arguing on the grounds of federal preemption: "The suit in Manhattan Federal Court says only the feds can mandate warnings on smoking risks," but it is the first amendment issue that gets the retailers' blood churning: "The "images of diseased body parts" at bodegas and newsstands amount to advocacy - and forcing the shopkeepers to post them violates the First Amendment."

Our good friend Jim Calvin makes this point: "The suit was joined by two Queens stores and two retail groups including the state Association of Convenience Stores. "Our customers are turned off by the signs - disgusted by them, nauseated by them," said association president Jim Calvin. "And these aren't people who came in to buy tobacco. They came to buy milk or lottery tickets and were so turned off, vowed not to come back."

And, as one bodega owner tells the News, the efficacy of the signs is by no means determined: "Whether they're effective is a matter of public debate. Jose Nunez, 52, owner of a grocery on Nostrand Ave. in Brooklyn, said the price of cigarettes is a bigger deterrent than any photo. "It's almost $10 a pack. That will stop someone faster than a sign," he said."

But being efficacious-or fair to the business interests of small store owners for that matter-has never been a priority of the department of health. The department's menu labeling fiasco has had little ot no effect on the fast food choices of the city's fatter folks-while making the job of fast food operators both more onerous as well as expensive. All of this in an economic climate of record store closings in the city's neighborhoods.

This means little to the health ideologues. And the other compelling issue in this legal wrangle is the sheer volume of signage that myriad city agencies foist on store owners-with each sign needing to be placed in a, "prominent," position in the retail outlet. It won't be long before one of the city's army of inspectors comes in to find that the sign isn't properly positioned-and another $1,000 (or more) fine is handed out to protect the easily manipulated public that is in dire need of more information it can get from signs posted on bodega walls.

Signs that take away from the ability of store owners to advertise their products-and that are often sources of revenue from willing manufacturers. As we pointed out last year: "The health of New Yorkers is an important target for policy makers; but so is the health of small stores. Taking away bodega ad space for another warning sign is just another example of the idée fixe of Mike Bloomberg and his regulatory crusaders. Pretty soon, we're gonna have ten foot anti-smoking signs plastered all over the windows of the proliferating legions of empty store fronts."

But, as far as the current legal action is concerned, the free speech rights of small store owners is the more serious issue at hand. In essence, what the Board of Health is doing is compelling the retailer to advertise to his or her customers that a legal product for sale in the store is something that the customer should avoid-forcing the bodeguero in this instance to argue against his or her own interest. If Mike Bloomberg wants to advertise against smoking, he has more than enough of his own money to wage a serious campaign-and, at the same time, he would be aggressively exercising his own free speech rights.

But to use the power of government to force people to say things that they don't want to say, that it isn't in their interests to say, is a blatant usurpation of one of the most basic constitutional rights we have in this country: the right to speak our own mind without the government putting words into our mouth.