A battle has begun over banning the sale of flavored tobacco products and the outcome will likely depend on court decisions to be handed down as zealous lawmakers attempt to usher in a new era of prohibition.
On Feb. 25, 2010, an ordinance passed in New York City is scheduled to take effect that bans the sale of all tobacco products that contain a characterizing flavor other than menthol, mint or wintergreen. With the new U.S. Food and Drug Administration regulations banning all flavors of cigarettes except menthol brands, this New York City law would extend the ban to flavored cigars (both small and large), flavored smokeless tobacco and flavored pipe tobacco.
The New York City ordinance was strongly opposed by the tobacco industry and the National Association of Tobacco Outlets sent all city council members and the mayor a letter warning them that the proposed ban is superceded by the new FDA tobacco regulations and objectionable on other legal grounds.
Even though NATO placed New York City lawmakers on notice that passing this broad prohibition of flavored tobacco products would set the stage for a lawsuit, the New York City council members ignored the warning and overwhelmingly approved the measure with anti-tobacco Mayor Michael Bloomberg signing the ordinance into law with an effective date of Feb. 25.
When lawmakers overreach and adopt regulations that do not pass legal and constitutional tests, then the courts are the next line of defense to protect the right to sell legal tobacco products. Regarding the New York City ordinance, U.S. Smokeless Tobacco Manufacturing Company, LLC, and U.S. Smokeless Tobacco Brands, Inc. have filed a lawsuit against New York City seeking to overturn the flavored tobacco ban.
In the lawsuit, the U.S. Smokeless Tobacco companies claim that the new federal FDA tobacco regulations preempt any local law that seeks to establish a tobacco product standard for flavored tobacco products that is either different from or in addition to the standards in the federal law. That is, since the New York City ordinance establishes a much broader ban of almost every flavored tobacco product than allowed under the federal law, the New York City measure should be superceded by the federal law.
A second claim in the lawsuit involves the Commerce Clause of the U.S. Constitution. Under the Commerce Clause, only Congress can make laws restricting commerce or business between the states. Since the New York City ban directly prohibits manufacturers and distributors located in other states from selling flavored tobacco products to retailers in New York City, the plaintiffs are seeking a judicial order that the ordinance violates the Commerce Clause.
Since 1989, I have worked to oppose anti-tobacco legislation. During this time, a clear trend has emerged where new tobacco restriction strategies are first adopted on either the East or West Coasts and then move inward to other states. History may be repeating itself with the New York City flavored tobacco ban.
On Jan. 6, 2010, Assembly Bill Number A-9482 was introduced in the New York legislature that would ban the sale any tobacco product statewide with a characterizing flavor except tobacco, menthol, mint or wintergreen flavors. In a variation on the New York state outright ban bill, House Bill 71 was introduced on Jan. 28, 2010 in the Utah legislature that would ban the sale of all flavored tobacco products unless those products are “approved by the United States Food and Drug Administration for general consumer use.” This bill has been approved by a Utah House committee and is now on the floor of the Utah House for final consideration.
Tobacco retailers around the country should be very concerned about this new wave of prohibition because lawmakers are taking it upon themselves to outlaw the sale of otherwise legal tobacco products. With New York and Utah legislatures now following suit, more litigation will likely be necessary to have the courts weigh in on this new strategy being employed to ban tobacco products.