Federation of Advertising Industry Representatives v. Chicago
(Statute Challenge US Dist Ct N IL 1997 Repealed)This suit was brought by the Federation of Advertising Industry Representatives (F.A.I.R.) against the City of Chicago.
On September 10, 1997, the city of Chicago passed an ordinance (amended February 6, 1998) limiting the advertising of both cigarettes and alcohol in any "publicly visible location". The purpose of the ordinance wa to reduce illegal sales of cigarettes and alcohol to minors.
The plaintiffs challenged the validity of the statute for constitutional violations, and claimed that the ordinance was preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA).
The case was heard in the United States District Court for the Northern District of Illinois, Eastern Division (No. 97 C 7619), before the Honorable Milton I. Shadur. The judge overturned the statute on July 29, 1998, finding it preempted by the FCLAA. The judge found its preemptive scope to be limited to the express language of the act. The 1965 version did no more than bar state-imposed labeling requirements. The 1969 version was far broader. The ordinance clearly contained a prohibition on advertising of cigarettes. The judge did not hold to the distinction made by other courts between the location and the content of the advertisement. Both fell within the preemption. The ordinance was based on smoking and health even if its stated purpose was to reduce illegal youth purchases. The reason the purchases were illegal was because of the health risks. The judge awarded declaratory and injunctive relief, but denied damages. Latter, the judge awarded attorney fees of $400,000 to the plaintiffs. The city appealed.
The United States Court of Appeals for the Seventh Circuit reversed the ruling on preemption. The court found that only a small exception allowing for the advertising of generic tobacco products was preempted, and was severable from the rest of the statute. The remainder of the statute constituted a land-use regulation, which did not conflict with the FCLAA.
On November 1, 2000, Chicago amended the ordinance to remove the preempted portion and several other exceptions of questionable constitutional validity. The plaintiffs amended its complaint eliminating all challenge to the cigarette-advertising portion of the ordinance.
On October 31, 2001, Chicago repealed the ordinance. One week later, the district court judge granted the defendant's motion to dismiss on the grounds of mootness. The judge declined to award attorney's fees on the mooted claim. The plaintiffs appealed.
The Court of Appeals affirmed the ruling on April 25, 2003. No damage claim remained to make the case viable after the repeal because the plaintiff failed to appeal the dismissal of its damage claim. To decide that the repeal was insufficient to moot the case would presume that the defendant had acted in bad faith, which the court refused to do. The fact that the defendant amended its ordinance before repealing it was just as likely to indicate good faith as bad. The proposal of another advertising ordinance did not indicate bad faith as it was significantly different in character from the one repealed. It allowed the city to create sign-free districts, regardless of the content or product represented on the sign. Because the plaintiff had not received an enforceable judgment on the merits of the case, but instead the case was declared moot, it was not entitled to attorney's fees.
The Supreme Court of the United States declined to reinstate the challenge without giving its reasons on October 10, 2003.