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Legalities crimp tobacco ad limits City eyes other laws to shield children

Buffalo's crusade to wipe out tobacco ads around schools, youth centers and playgrounds may face legal hurdles, so sponsors are quietly weighing a different strategy.

If attorneys conclude that Buffalo can't legally ban such ads, some officials want to start enforcing other outdoor advertising rules in hopes of achieving the same end. The city, for example, might target ads not properly affixed to buildings.

This summer, the city began enforcing a ban on tobacco ads within 1,000 feet of places frequented by children. That triggered a warning from R.J. Reynolds Tobacco Co., the nation's second-largest cigarette manufacturer.

Citing a 2001 U.S. Supreme Court decision, the company contended Buffalo's law tramples on First Amendment protections and violates federal laws preventing localities from imposing their own rules on tobacco ads. R.J. Reynolds warned it might sue if Buffalo continues the enforcement blitz.

The regional office of the New York Civil Liberties Union also has notified city officials it views the crackdown as unconstitutional. While the group acknowledged the city may have "the best interests of the community in mind," Jeanne-Noel Mahoney, the executive director, said the Supreme Court ruling struck down similar restrictions in Massachusetts as too broad.

The Civil Liberties Union said it had no immediate plan to challenge city actions. But in a letter, the group warned that Buffalo's plan to expand enforcement and possibly broaden the ban to include alcohol ads would be risky.

"We are extremely concerned that there are discussions of expanding this
illegal and unconstitutional ordinance to include additional locations, as well as to attempt to restrict or ban advertisement of other legal products. This is not an eventuality that we can allow to pass unchallenged," she wrote.

John Curr, the group's assistant executive director, said the city has yet to respond to a letter that it received about a month ago.

"It's very irresponsible," he said. "We're citizens first, and we're trying to save the city from facing a lawsuit."

Working with city inspectors, Niagara Council Member Dominic J. Bonifacio Jr. spearheaded the tobacco ad crackdown. The Council is waiting for the Law Department to look into the court ruling. But Bonifacio conceded that the city might have to look at other ways to target outdoor ads.

"We might have to get more creative," he said. "We think there are other laws already on the books that, if enforced, would eliminate some of the problems."

Bonifacio cited the requirement that outdoor ads be posted in frames on buildings. Officials have complained that many cigarette ads are affixed improperly to storefronts or tied onto nearby utility poles.

e-mail: bmeyer@buffnews.com

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