Hon. Gloria M. Ballien Deputy Commissioner and Counsel Department of Commerce
This is in response to your letter of February 3, 1978, seeking advice in regard to a proposed program for distribution of printed material in connection with promoting tourism in New York City. In large measure, the program you outline appears to be related to publicizing the theater industry as well as other tourist facilities.
As far as your department undertaking with various travel trade organizations a cooperative program of distributing promotional materials, there is found support in your enabling statute. Commerce Law, § 100 gives the Commissioner of Commerce acting by and through the Commerce Department power to encourage and cooperate with other public and private organizations in publicizing the attractions and industrial advantages of the State. Further, the Department is authorized to enter into contracts and do all things necessary to carry out such powers.
There appears to be no objection to private organizations assisting in the distribution of such materials to the public. In my opinion, the program you propose is permissible subject to certain qualifications:
(1) If such travel trade distributors are to identify themselves on the printed material in exchange for their distribution efforts, it should be at their own expense.
(2) Such identification should be incidental to the main content of the material.
(3) Such identification should not be allowed to make the printed material primarily an advertisement of such private entities.
(4) The promotional literature may refer to privately-operated theaters and tourist facilities in a list so long as it does not unduly single out any particular private businesses in a way which might reasonably appear to be State promotion of that particular theater, restaurant, hotel or the like.
You specifically mention proposed distribution arrangements with two transportation agencies, Metropolitan Transportation Authority and Amtrak. You refer to printing a small message for such agencies in exchange for distribution services. Since these entities are either governmentally established or authorized and have a public or quasi-public character, I see no objection to including a message as to use of their facilities — assuming it is consistent with promoting tourism in the State.
The above is set forth as a general guideline. You must pass upon the propriety of all promotional material. It is your responsibility. I have not passed upon the contents of your material.