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February 27, 2013

NYC ban on flavored smokeless tobacco upheld

By Michelle L. Oxman, JD, LLM

The district court correctly decided that New York City’s ordinance restricting the sale of flavored smokeless tobacco was not preempted by the Family Smoking Prevention and Tobacco Control Act (P.L. 111-31) (the Act) (U.S. Smokeless Tobacco Manufacturing Co., LLC v City of New York, February 26, 2013, Lynch, G). The Act expressly provides for state and local regulation of the sale of tobacco products. The restriction of flavored smokeless tobacco products to tobacco bars serves one of the two competing goals of the Act, maintaining access to tobacco products for addicted adults while preventing underage consumers from purchasing the products.

The statute and the ordinance. Section 17-715 of the New York City Administrative Code provides that flavored smokeless tobacco products may be sold only in tobacco bars. The Act gave the Food and Drug Administration (FDA) the authority to set standards for and regulate tobacco and tobacco products. Section 907 set standards for the manufacture of smokeless tobacco products. Section 916 of the Act, codified at 21 USC sec. 387p, states that except as provided in paragraph (2)(A), “nothing in this chapter …shall be construed to limit the authority of a [state or local government] … to enact, adopt, or enforce any law, rule, regulation, or other measure …in addition to, or more stringent than,” the requirements of the Act relating to sale, distribution, possession, exposure, or access to tobacco products. The exception in (2)(A) concerns manufacturing standards, labeling, premarket review, adulteration, misbranding, and other aspects of the products. Paragraph (2)(B) reiterates that the exception does not apply to “requirements relating to” the sale, distribution, access, possession, promotion, or advertising of tobacco products.

The challenge. U.S. Smokeless Tobacco Manufacturing Co., LLC and U.S. Smokeless Tobacco Brands, Inc. (U.S. Smokeless Tobacco) sued to enjoin enforcement of the New York ordinance section 17-715 on the ground that it was preempted by the Act. There was no dispute that: (1) smokeless products are used by adults; (2) there were eight tobacco bars in New York City, all in Manhattan; and (3) none of the eight carried flavored smokeless tobacco. Therefore, the court concluded that the flavored smokeless tobacco products were not available anywhere in New York City.

Preemption. In addition to the usual presumption against federal preemption of state or local laws concerning public health, the court analyzed the statutory language. There was no doubt that Congress intended to allow the states to regulate sale and distribution of, and access to, tobacco products. Restricting the sale of flavored smokeless tobacco to tobacco bars was a permissible way to regulate sale, distribution and access. The court considered that two competing goals were reflected in the Act: (1) maintaining access to a supply for addicted adults and (2) protecting the public health by discouraging smoking, especially among minors. The court also noted that the Act expressly prohibited the federal government, but not states or local governments, from banning the sale of any tobacco products.

U.S. Smokeless Tobacco’s product served a niche market, primarily in the South, and the manufacturer had not shown that there was great unmet demand from adult users. The manufacturer argued that prohibition of flavoring in the product was equivalent to setting manufacturing standards, which was solely within the FDA’s jurisdiction. However, the court disagreed, reasoning that the flavored tobacco was the end product, represented to have a particular flavor. The city ordinance banned products sold as flavored, not the ingredients used. The district court’s order granting summary judgment to the city was affirmed.

The case number is 11-5167-cv.

Attorneys: Kenneth J. Parsigian (Goodwin Procter LLP) for U.S. Smokeless Tobacco Manufacturing Company, LLC, U.S. Smokeless Tobacco Brands, Inc. Michael Jordan Pastor, New York City Law Department, for the City of New York.

Companies: U.S. Smokeless Tobacco Manufacturing Company, LLC; U.S. Smokeless Tobacco Brands, Inc.

MainStory: TopStory CaseDecisions PreemptionNews TobaccoNews NewYorkNews ConnecticutNews VermontNews

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