Judge Rules New York City Flavor Ban is Allowed Under FDA Law

Courtesy of Thomas A. Briant Tobacco E-News via IPCPR

New York City – November 29, 2011– A federal district court judge has issued an order upholding a New York City ordinance that bans the sale of all flavored tobacco products, except cigarettes, that contain a constituent or additive that imparts a characterizing flavor other than the taste or aroma of tobacco, menthol, mint or wintergreen.

Specifically, the ordinance bans flavored tobacco products that have a taste or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice. There is a very limited exception in the ordinance, which allows flavored tobacco products to be sold in several existing “tobacco bars” in the city.

Shortly after the New York City Council adopted the ordinance in October of 2009, a lawsuit was filed in December of 2009 by U.S. Smokeless Tobacco Manufacturing Company and U.S. Smokeless Tobacco Brands Inc., seeking to overturn the New York City flavor ban ordinance. Then, in March of 2010, the same federal judge denied a motion by the U.S. Smokeless Tobacco companies seeking a temporary injunction to block the enforcement of the ordinance.

The new court order issued on November 15, 2011, is in response to a motion for summary judgment by the U.S. Smokeless Tobacco companies to declare that the New York City ordinance is preempted by the 2009 FDA tobacco regulatory law known as the Family Smoking Prevention and Tobacco Control Act. In the court order, the judge relied on Section 916 of the FDA regulatory law.

This section of the law, titled “Preservation of State and Local Authority,” reads as follows: “…nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of…a state or political subdivision of a state [i..e., a city, town or county]…to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age. …”

As stated in the court opinion, this means that “with respect to regulations relating to, or even prohibiting sales of tobacco products, local governments are free to go above any federal floor set either by the Family Smoking Prevention and Tobacco Control Act or by the FDA acting pursuant to it.” In other words, even though the FDA has not acted to ban the sale of flavored tobacco products, the court determined that a city could adopt such a restrictive law prohibiting the sale of a “subclass of tobacco products,” because Section 916 allows local governments to take that kind of action. The judge did state that the Family Smoking Prevention and Tobacco Control Act grants the FDA the exclusive power to regulate the manufacturing and fabrication of tobacco products, but the law reserved to states and cities the authority to adopt stricter regulations over and above any federal laws relating to the promotion, distribution, and sale of tobacco products.