Last month, a New York federal district judge upheld a New York City local ordinance that prohibits the sale of flavored smokeless tobacco anywhere in the city other than at existing “tobacco bars.”  New York law defines a “tobacco bar” as a “bar that, in the calendar year ending December 31, 2001, generated ten percent or more of its total annual gross income from the on-site sale of tobacco products and the rental of on-site humidors, not including any sales from vending machines, and is registered with the department of health and mental hygiene in accordance with the rules of such agency.”  Plaintiffs U.S. Smokeless Tobacco Manufacturing Company, LLC and U.S. Smokeless Tobacco Brands Inc. challenged the ordinance on grounds the ordinance is preempted by the federal Family Smoking Prevention and Tobacco Control Act (the “Tobacco Control Act”).  In March 2010, the federal judge denied the plaintiffs’ motion for a preliminary injunction on this same preemption ground.  Last month’s decision came in response to the plaintiffs’ summary judgment motion, and resulted in the dismissal of the lawsuit.

In his decision, the judge concluded that the language of the Tobacco Control Act “indicate[s] that Congress specifically intended a continued role for State and local regulation, as long as that regulation [does] not intrude into tobacco product standards aimed at manufacturing.”  In other words, the only State or local regulations that are preempted by the Act are regulations that impose manufacturing or fabrication requirements which are inconsistent with any federal standards on the same subject.  States and localities, however, are free to regulate the sale or distribution of tobacco products and can impose more stringent requirements in these areas than any imposed at the federal level.

Earlier this week, Plaintiffs appealed the district judge’s ruling to the U.S. Court of Appeals for the Second Circuit.

Contributor: Brenna Newman

For questions and/or comments, please contact Bryan Haynes, at 804.697.1420 or by email.