The Massachusetts Appeals Court today upheld a Boston Public Health Commission ban on the sale of cigar wraps, saying the commission has a legitimate public-health reason for trying to keep the green leafy material out of the hands of young people.
A group of wrap manufacturers had sued to overturn the regulation, charging the commission was violating manufacturers' constitutional rights - and those of the young black men the group said were the predominant purchasers of the product.
The court ruled the racial-discrimination argument moot because the companies had not raised it in their original suit in Suffolk Superior Court, but only on appeal after losing there. The appeals court then, however, went on at some length to dismiss the argument:
Here, the manufacturers support their equal protection argument by pointing to discussions in commission proceedings to the effect that the manufacturers' marketing campaign targeted young African-American males and that use of cigar wraps had "increase[d] especially among African-Americans associated with urban culture, hip hop." But those discussions dealt with cause and effect, not racial discrimination. To say that the manufacturers created a marketing strategy with racial and cultural components, that the marketing strategy appeared to be working, and that the campaign's apparent success was presenting a health hazard to the targets of the strategy is to engage in a rational process for exploring dangers to public health. Thus, the manufacturers' argument amounts to a contention that the nature of the marketing strategy they created immunizes the health effects of that strategy from regulatory scrutiny. At best, the argument is something of a self-wielding sword and, in any event, there is no such immunity.
As for effect, although the record contains much evidence, virtually all of which is undisputed, to show that cigar wraps are reaching young people at significant rates, there is no evidence of the percentage of the wraps purchased by African-Americans or that African-Americans were disproportionately denied wraps because of the regulation. The "cultural" appeal of the products does not necessarily define the purchasers or identify with any necessary accuracy those who would be affected most by a ban on sales, for cultural appeals frequently spread well beyond the boundaries of the culture that produced them.
The court noted a commission survey in 2008 that found stores were illegally selling wraps to people under 18 at more than twice the rate than they were selling cigarettes to them and that the commission made its case to stop the sales of wraps both because of their tobacco content and their link to marijuana use:
Cigar wraps are used, particularly by young urban males, to create custom marijuana cigarettes and have been marketed through use of marijuana imagery. Indeed, two of the exhibits introduced at the trial were wraps named "kush" and "purple haze" which, the judge found, are two of many common synonyms for marijuana. One manufacturer, who is not a party to this action but is a member of the association, offered on its Internet Web site a compact disc (CD) entitled "Smokin Day-Pt.2," which features recording artists including 50 Cent, Snoop Dogg, and Lloyd Banks performing numbers such as "I Get High," "High Than a Muthafucka," "Let's Get High," and "Get High All the Time." The lyrics, many of which the interested reader can find on the Internet, are liberally sprinkled with references to "getting high." And, as an aid to listeners who for some reason need help with translation, the CD liner notes display large pictures of marijuana leaves. ...
Particularly in light of the judge's finding that underage sales of cigars and cigar wraps in Massachusetts are double the rate of underage cigarette sales, and his finding that the marketing strategies employed by cigar wrap manufacturers specifically target young people, the ban is rationally related to a legitimate, health-related purpose.