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

Parties

Plaintiff

  • U.S. Smokeless Tobacco Brands, Inc.
  • U.S. Smokeless Tobacco Mfg. Co.

Defendant City of New York

Legislation Cited

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

"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."