U.S. Smokeless Tobacco Mfg. Co. v. City of New York
Plaintiffs, manufacturers and distributors of smokeless tobacco, challenged a New York City law restricting the sale of flavored tobacco on the basis that the law (1) was preempted by the Federal Family Smoking Prevention and Tobacco Control Act (“FSPTCA”), which gives power to the FDA to regulate tobacco products, and (2) violates the Commerce Clause and Due Process Clause of the Fourteenth Amendment of the US Constitution. The Court denied plaintiffs' motion for a preliminary injunction due to a lack of conflict between the federal and local law, and the judicial presumption against preemption in matters of health and safety. Further, there was a “saving clause” in the FSPTCA regarding the types of regulations that state and local governments are allowed to pass, including restrictions on the sale or distribution of tobacco products.
U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F.Supp.2d 329, US District Court, Southern District of New York (2010).
United States
Mar 23, 2010
U.S. District Court, Southern District of New York
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.
Tobacco products that are used by means other than smoking, such as chewing, sniffing, or placing between the teeth and gum. Examples include chewing tobacco, dipping tobacco, snuf, snus, gutkha or gutka, and dissolvable tobacco products.
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.
"There is no conflict here. Both the federal and the City law apply to some of the same products. Compare, e.g., 21 U.S.C. § 321(rr)(1)-(2) (defining tobacco product to include smokeless tobacco) and N.Y. City Admin. Code § 17-713(j) (same). However, the only restriction the FSPTCA affirmatively places on flavored tobacco products relates to flavored cigarettes, see 21 U.S.C. § 387g(a)(1)(A), and the City Ordinance explicitly states that it does not apply to cigarettes, see N.Y. City Admin. Code § 17-713(j). Moreover, because the City Ordinance does not apply to cigarettes, it does not conflict with Congress' finding that a ban on tobacco or menthol cigarettes could lead to “negative health effects,” because they are products “used regularly by a large number of addicted adult smokers.” FSPTCA Report at 38. At most, the City Ordinance applies sales restrictions on flavored tobacco products (by limiting where they may be purchased) over and above those imposed by the federal law. For the reasons explained above, that is not a valid basis for finding preemption in this case. See California v. ARC America Corp., 490 U.S. 93, 105, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989) (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 257-58, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984); California v. Zook, 336 U.S. 725, 736, 69 S.Ct. 841, 93 L.Ed. 1005 (1949)).The fact that the FSPTCA provides that the FDA may, at some future date, promulgate regulations restricting the sale of flavored tobacco products other than cigarettes is not enough-in and of itself-to impute a conflict between federal and city law."
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, manufacturers and distributors of smokeless tobacco, challenged a New York City law restricting the sale of flavored tobacco on the basis that the law (1) was preempted by the Federal Family Smoking Prevention and Tobacco Control Act (“FSPTCA”), which gives power to the FDA to regulate tobacco products, and (2) violates the Commerce Clause and Due Process Clause of the Fourteenth Amendment of the US Constitution. The Court denied plaintiffs' motion for a preliminary injunction due to a lack of conflict between the federal and local law, and the judicial presumption against preemption in matters of health and safety. Further, there was a “saving clause” in the FSPTCA regarding the types of regulations that state and local governments are allowed to pass, including restrictions on the sale or distribution of tobacco products.