Independents Gas & Service Stations Association, Inc. v. City of Chicago
In December 2013, the Chicago City Council adopted an ordinance regulating the sale of flavored tobacco products near schools. Plaintiffs challenged the ordinance and sought declaratory and injunctive relief, alleging that the ordinance was preempted by the Family Smoking Prevention and Tobacco Control Act (FSPTCA), unconstitutionally vague under the Fourteenth Amendment of the U.S. Constitution, and both a violation of vested rights and improperly retroactive under the Due Process Clause of the Illinois Constitution. (The Court considered two cases brought separately by Independents Gas and Quick Pick, as the complaints and the briefing on the motions to dismiss were the same.) The District Court dismissed all three of these challenges, finding that the FSPTCA had not preempted the ordinance; that the ordinance was not unconstitutionally vague; that no vested right was involved; and that the ordinance did not apply retroactively. The Court dismissed the plaintiff's complaints with prejudice and entered judgment in defendant's favor in both cases.
Independents Gas & Serv. Stations Associations, Inc. v. City of Chi., 112 F.Supp.3d 749 (N.D. Ill., 2015).
United States
Jun 29, 2015
U.S. District Court, N.D. Illinois, Eastern Division
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Measures restricting tobacco sales to or by minors, as well as other retail restrictions relating to point-of-sale, candy and toys resembling tobacco products, vending machines, or free distribution.
(See FCTC Art. 16)
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A violation of the right to procedural fairness. For example, a party may claim that a government agency did not consult with public or stakeholders when issuing regulations.
Type of Tobacco Product
None
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Plaintiffs note that section 387p(a)(2)(B) only applies to “requirements relating to the sale” of tobacco products, unlike section 387p(a)(1), which applies to “measure[s] relating to or prohibiting the sale” of tobacco products. 21 U.S.C. § 387p(a)(2)(B), 387p(a)(1) (emphasis added). Thus, plaintiffs argue, because the ordinance prohibits the sale of flavored tobacco within 500 feet of a school, section 387p(a)(2)(B) does not apply. This argument is unpersuasive. The ordinance permits retail tobacco stores to sell flavored tobacco within 500 feet of a school; it also permits any retailer to sell flavored
tobacco if located more than 500 feet from a school. Thus, the “sales restriction ... does not constitute a complete ban, as it permits the limited sale of flavored tobacco products....” U.S. Smokeless Tobacco, 708 F.3d at 435–36. Requirements relating to sale will always prohibit sale under certain circumstances, namely when the requirements for sale are not met. Because flavored tobacco products may be sold within the city if the ordinance's requirements are met, the law does not
constitute a prohibition in the meaning of the FSPTCA. See id. at 436 (“[G]iven Congress's explicit decision to preserve for the states a robust role in regulating, and even banning, sales of tobacco products, we adopt a broad reading of the saving clause and a limited view of the kinds of restrictions that would constitute a ban and require us to address the permissibility of [112 F.Supp.3d 754] outright prohibitions under the saving clause.”)."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
In December 2013, the Chicago City Council adopted an ordinance regulating the sale of flavored tobacco products near schools. Plaintiffs challenged the ordinance and sought declaratory and injunctive relief, alleging that the ordinance was preempted by the Family Smoking Prevention and Tobacco Control Act (FSPTCA), unconstitutionally vague under the Fourteenth Amendment of the U.S. Constitution, and both a violation of vested rights and improperly retroactive under the Due Process Clause of the Illinois Constitution. (The Court considered two cases brought separately by Independents Gas and Quick Pick, as the complaints and the briefing on the motions to dismiss were the same.) The District Court dismissed all three of these challenges, finding that the FSPTCA had not preempted the ordinance; that the ordinance was not unconstitutionally vague; that no vested right was involved; and that the ordinance did not apply retroactively. The Court dismissed the plaintiff's complaints with prejudice and entered judgment in defendant's favor in both cases.