Clear The Air News Tobacco Blog Rotating Header Image

2nd Circuit upholds NYC ordinance on flavored tobacco YET in Hong Kong it is still legal ! it is even manufactured here !

Tobacco leaves. File photo. REUTERS Jorge Silva

2nd Circuit upholds NYC ordinance on flavored tobacco

2/26/2013COMMENTS (0)

By Bernard Vaughan

NEW YORK, Feb 26 (Reuters) – The 2nd U.S. Circuit Court of Appeals on Tuesday affirmed a district judge’s decision that upheld a New York City ordinance limiting the sale of flavored tobacco products, saying the measure did not pre-empt federal law.

The ruling marks a victory for the city, which under Mayor Michael Bloomberg has pushed several health-focused measures, including limits on sales of supersize soft drinks in an effort to fight obesity. The tobacco ordinance, signed into law and approved by the city council in October 2009, prohibits the sale of any flavored tobacco product except in a tobacco bar.

Sharyn Rootenberg of the New York City Law Department handled the case on appeal for the city.

Kenneth Parsigian of Latham & Watkins represented the U.S. Smokeless Tobacco Manufacturing Company LLC, whose moist smokeless tobacco brands include Copenhagen and Skoal, and U.S. Smokeless Tobacco Brands Inc. Both entities are units of Altria Group.

Tuesday’s decision backed a summary judgment ruling in favor of the city granted by U.S. District Judge Colleen McMahon in November 2011.

Federal law “expressly preserves localities’ traditional power to adopt any ‘measure relating to or prohibiting the sale’ of tobacco products,” Judge Gerard Lynch wrote for the three-judge panel, which also included Judges Reena Raggi and Jon Newman.

“We are disappointed with the court’s decision and are considering our options,” said Brian May, a spokesman for Altria.

The City Law Department was not immediately available for comment.

The ordinance sought to deter younger smokers often attracted to flavored tobacco products, Bloomberg said before signing it in 2009.

In late 2009, the plaintiffs filed a lawsuit in Manhattan federal district court, seeking to stop enforcement of the measure.

The plaintiffs argued that a statute that Congress passed in 2009, the Family Smoking Prevention and Tobacco Control Act, pre-empted the city ordinance. The federal law granted the Food and Drug Administration power to regulate tobacco products.

The city ordinance was a products standard regulation designed to “evade express federal pre-emption … by artful crafting that elevates form over substance,” the appellants wrote in their brief.

But the 2nd Circuit concluded that the ordinance does not require tobacco manufacturers to alter the properties of their products, which would have subjected it to federal pre-emption.

“A local sales regulation that does not clearly infringe on the FDA’s authority to determine what chemicals and processes may be used in making tobacco products does not fall within this description and is therefore not pre-empted,” Lynch wrote.

The 2nd Circuit also disagreed with the plaintiffs’ argument that the ordinance is effectively an outright ban on the sale of flavored tobacco products.

“While the sales restriction imposed by the City’s ordinance is severe, it does not constitute a complete ban, as it permits the limited sale of flavored tobacco products within New York City,” Lynch wrote.

The case is U.S. Smokeless Tobacco Manufacturing Company LLC, U.S. Smokeless Tobacco Brands Inc. v. City of New York, 2nd U.S. Circuit Court of Appeals, No. 11-5167

For U.S. Smokeless Tobacco Manufacturing Company LLC, U.S. Smokeless Tobacco Brands Inc: Kenneth Parsigian of Latham & Watkins.

For the City of New York: Sharyn Rootenberg and Michael Pastor of the New York City Law Department

– See more at:

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>