Speaking tooth to power

In a recent landmark decision, a federal court judge put the brakes on a citywide gross-out campaign mounted by the NYC Board of Health against innocent pedestrians and customers of delis and bodegas.

For the last year or so, it’s been impossible to buy a pastrami sandwich, a bottle of beer or a glassine of crack at the corner store without being confronted by a large revolting poster of a decayed tooth prominently placed in the window or next to the cash register. Queries to the clerk about this appetite-murdering display elicited a resigned shrug. “It’s the law,” she said.

It is of course axiomatic that cigarettes are poison and tobacco companies are evil, but how does it follow that we must be assaulted by a 3-foot high rotten tooth every time we pass a grocery store?

The countermovement (get it?) came not from a concerned coalition of citizens defending the right to walk by a store window without puking, but from an alliance of Philip Morris and Reynolds Tobacco with the 23-34 94th St. Grocery Corp., the NY Association of Convenience Stores, the NY State Association of Service Stations and Repair Shops, and Kissena Blvd. Convenience Store, Inc., who filed a lawsuit challenging the ordinance.

Simultaneously granting the plaintiffs summary judgment while calling them names, Judge Jed Rakoff declared, “Even merchants of morbidity are entitled to the full protection of the law.”

We eagerly conveyed the judge’s decision to Ms. Gowanda, our corner merchant. Since it was late at night, we had to stand outside and place the 15-page document onto a revolving tray in the bulletproof window. Gowanda spun the tray towards her and picked it up.

“Says here, more people in NY City die from smoking than from AIDS, homicide, and suicide combined,” she said frowning. “I bet they never established no causation.”

We encouraged her to keep reading.

“The issue turns on whether a display of cigarettes constitutes ‘promotion’ within the meaning of 15 U.S.C. sections 1331-1341,” she read. “The City says it’s not promotion, it’s ‘merely placing a product for sale on shelving.’ Say, do they pay you lawyers money to write stuff like this?”

We assured her we have no connection with this disreputable area of law, and that we’re strictly about getting dangerous criminals off on technicalities.

“I guess my son didn’t have enough technicalities,” said Gowanda. “Anyway, this here judge got it right that ‘a confluence of regulatory and commercial factors lead tobacco retailers to display tobacco products near the cash registers at the point-of-sale.’ That’s just what I was telling the new guy the other day. ‘Akbar,’ I says, ‘You gotta stack the regulatory and commercial factors together on the shelf.'”

“Not only that,” we said warmly, although our feet were by now frozen to the pavement, “the court finds that ‘the very purpose of the Article’s requirement of posting an anti-smoking sign near the cash register is an implicit recognition that this is near where the cigarettes are displayed’.”

“And he ain’t never even been to our store,” she said admiringly. “Don’t nobody ever say the law don’t care about the little people.”

See 23-34 94th St. Grocery Corp. v. NYC Board of Health 2010 WL 5392876 (S.D.N.Y.) available at merchantsofmorbidity.com

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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