A group of tobacco retailers has challenged a Chicago ordinance that generally bans the sale of flavored tobacco products within 500 feet of a school.  The ordinance does not apply to tobacco stores that derive more than 80% of their revenue from tobacco sales. 

The ordinance applies to the sale of any tobacco products with any “characterizing flavor,” including menthol.  “Characterizing flavor” as “a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product.”  Public statements regarding the existence of a flavor conclusively establish that the product is a regulated flavored tobacco product.  Although it is unclear whether other criteria could result in a finding that a product is a regulated flavored tobacco product, the ordinance does make clear that the mere presence of certain ingredients or additives does not establish that a product has a “characterizing flavor.”

The lawsuit contends that the Chicago ordinance is preempted by the Family Smoking Prevention and Tobacco Control Act, which has its own standards for flavored tobacco products.  Similar challenges have not been successful.  The lawsuit also contends that the ordinance is impermissibly vague because it has no “grandfather” provision that protects retailers from schools that may move within the proscribed boundary, and because it applies to “schools” that are not recognized by the state Board of Education.

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