March 2012 Newsletter

Judge Holds FDA Warning Labels Unconstitutional; FDA to Appeal 
Judge Dismisses Suit Challenging NYC’s Restriction on Sales of Flavored Tobacco Products
Officials Address Tax, Safety Concerns with Roll-Your-Own Tobacco 
Governor’s Proposed Budget Cuts Tobacco Control Funding
New York City Residents Are Healthier
Center Hires Staff Attorney, Spring Law Clerks
Center Offers Farewell to Dr. Willett

Judge Holds FDA Warning Labels Unconstitutional; FDA to Appeal

On February 29, U.S. District Court Judge Richard Leon ruled that the FDA rule requiring graphic warning labels on cigarette packs violated the First Amendment. This ruling was not surprising, given Judge Leon’s earlier ruling in which he granted an injunction barring enforcement of the FDA’s rule.

The FDA’s rule, which required graphic warning labels on the top half of cigarette packages, was required by a provision of the Family Smoking Prevention and Tobacco Control Act (FSPTCA). Another federal judge had already ruled that provision of the law to be constitutional, but Judge Leon disagreed. He wrote that the FDA’s graphic warning labels “were neither designed to protect the consumer from confusion or deception, or to increase consumer awareness of risks; rather, they were crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking” – a purpose that he does not consider legitimate.

In our view, the decision is flawed in many respects. For one, the government clearly has a legitimate and compelling interest in reducing smoking rates. It is somewhat shocking – and contrary to clear precedent – for a judge to suggest otherwise. Moreover, the warning labels developed by the FDA accurately represent the consequences of smoking, and studies from numerous other countries that have adopted similar requirements show that graphic warning labels increase public understanding of the risks of smoking. Finally, the warnings “evoke a strong emotional response” because the consequences of smoking can be truly devastating. But the emotional resonance of the images says nothing about their constitutionality.

This ruling will be appealed to the D.C. Circuit Court of Appeals, which is scheduled to hear the case in April (although that hearing date could be modified). A ruling from the D.C. Circuit could be appealed to the Supreme Court.

The full text of the decision is available here.
Commentary from the Campaign from Tobacco-Free Kids is available here.

Judge Dismisses Suit Challenging NYC’s Restriction on Sales of Flavored Tobacco Products

On November 15, 2011, United States District Court Judge Colleen McMahon dismissed a lawsuit filed by two smokeless tobacco companies against New York City. Through the suit, the tobacco companies challenged the legality of New York City’s law prohibiting the sale of tobacco products with “characterizing flavors” in any location other than a tobacco bar. Prohibited flavors include any fruit, chocolate, vanilla, honey, alcoholic beverages, clove, licorice, and coffee, but excludes menthol, mint and wintergreen. Such products entice young people by masking naturally harsh tobacco flavors and aromas. While the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA) bans the sale of flavored cigarettes (aside from menthol), New York City is the first city to sharply limit the sale of flavored tobacco in all forms, including flavored cigars, cigarettes, chewing tobacco, and pipe tobacco.

In an earlier ruling on the companies’ request for a preliminary injunction, Judge McMahon held that the plaintiffs had little chance of succeeding on the merits of the case, that the NYC ordinance does not conflict with the FSPTCA, and that the FSPTCA clearly preserves the rights of states and municipalities to enact laws and regulations concerning the sale of tobacco products even more restrictive than those in the FSPTCA itself.

In dismissing the case, Judge McMahon determined that the discovery process performed since her initial March 2010 ruling denying the motion of the tobacco companies for a preliminary injunction had not produced new evidence undermining the Court’s decision. The ruling is expected to be appealed by the tobacco companies.

Officials Address Tax, Safety Concerns With Roll-Your-Own Tobacco

In separate efforts, New York State Governor Cuomo and New York City Mayor Bloomberg have taken steps to update and enforce tobacco control laws that have resulted in some retailers impermissibly bypassing tax and safety regulations.

On January 17, 2012, Governor Andrew Cuomo included a provision in his proposed budget for the 2012-2013 fiscal year that would tax loose tobacco at the same rate as the tobacco contained in mass-produced machine-rolled cigarettes (currently, loose tobacco is taxed at $2.80/pound, while cigarettes are taxed at $4.35/pack). Loose tobacco, also known as “Roll Your Own” or “RYO” is traditionally purchased for use in hand-rolled cigarettes, individually rolled just before use. However, the lower tax rate (and the resulting lower purchase price) has triggered a proliferation of tobacconists’ entering the business of on-site cigarette assembly: Customers purchase their loose tobacco, rolling papers and filters and stand by while the retailer uses an automated rolling machine to assemble the cigarettes. These customized cigarettes are taxed as loose tobacco – a perceived loophole in the tax law that Governor Cuomo seeks to close. The budget proposal imposes a tax of $4.35/ounce on loose tobacco, bringing it in line with the tax imposed on cigarette packs. Approximately $18 million is expected to be collected through the measure.

Of additional concern, the cigarettes produced by these tobacconists do not comply with a state law requiring cigarettes sold or distributed in New York to meet a fire-safe performance standard.  Cigarettes are the leading cause of fatal house fires in New York (and the nation).  In an effort to reduce the number of these accidental fires, New York led the country and enacted legislation in 2000 requiring New York-sold cigarettes be made from self-extinguishing rolling paper. This paper contains “speed bumps” designed to reduce and ultimately stop the burn rate when the cigarette is ignored. Cigarettes produced and sold by RYO retailers do not use self-extinguishing paper and are therefore in violation of the law, according toNew York City officials.

The City of New York is in the process of prosecuting some of these RYO shops in its five boroughs, alleging that the retailers are in violation of both the Federal Contraband Cigarette Trafficking Act and the State Cigarette Marketing Standards Act.  In addition to concerns about fire safety, the lawsuits filed by the city also accuse some retailers of failing to pay the required taxes.  At least five RYO shops have been targeted by the city since 2011, with the most recent complaint coming in February 2012 against Victory Smoke Shop inStaten Island. David Frankel, New York City’s Finance Commissioner, has offered the following warning to those attempting to evade or manipulate cigarette taxes: “The Department of Finance and its Sheriffs’ Office are committed to coming after anyone violating cigarette tax regulations. We will find you and hold you accountable to the fullest extent of the law.”

Governor’s Proposed Budget Cuts Tobacco Control Funding

New York State Governor Andrew Cuomo’s proposed budget for the 2012-2013 fiscal year includes a $5 million (12%) cut in the funding for the State’s Tobacco Control Program, which is responsible for implementing policies that will prevent and reduce tobacco-related morbidity and mortality. Since the 2008-2009 fiscal year, the funding for the Tobacco Control Program has been cut by 50%.

The governor’s budget proposal is the first step in the budget process, and it is likely that the legislature will reject or modify many of the governor’s recommendations.  The budget does not become final until is approved by both chambers of the New York State Assembly and signed by the governor.  New York law requires a budget to be approved by April 1.

New York City Residents Are Healthier

The New York City Health Department recently announced that New Yorkers are healthier today than they were in 2002, largely as a result of the progressive tobacco control measures implemented in recent years. These measures include the adoption of comprehensive smoke-free laws and higher cigarette taxes.

Since 2002, heart disease has dropped an impressive 28% and cancer death rates are down 4.3%.  The life expectancy of aNew York City resident has risen to 80.6 years, a figure representing a three year increase since 2000 and one which is higher than the national average of 78.2 years. These positive health indicators coincide with a significant decline in smoking rates (35%).  Mayor Bloomberg attributes these positive changes to a variety of health conscious policies: “By investing in health care and continuing to encourage more New Yorkers to take charge of their own health, we’ve experienced dramatic improvements in life expectancy.”  Highlighting the impact of this decline, the Health Department has estimated that in the next 40 years, the decrease in smoking will prevent an astounding 50,000 premature deaths.

Center Hires Staff Attorney, Spring Law Clerks

In November, the Public Health and Tobacco Policy Center hired Whitney Dodds as a Staff Attorney.  As such, she will provide policy support to the Tobacco Control Programs of both New York State and the State of Vermont.  Whitney is a 2011 graduate of New England Law | Boston, where she was the Symposium Editor for the New England Journal of International and Comparative Law and was the recipient of the Outstanding Scholastic Achievement Award.  Whitney began working with the Center as a student at its inception in 2009, and her experience is a tremendous asset to the Center.  We hope you will all join us in welcoming her to the program!

The Center also hired three student law clerks for the spring semester.  Elizabeth Ahmadi, Sarah Faust and Jennifer O’Donnell will help the Center attorneys in researching upcoming publications and providing technical assistance to TCP staff, contractors and community partners.

Center Offers Farewell to Dr. Willett

In February, Dr. Jeff Willett left his position as director of the New York State Tobacco Control Program to assume a new position as the vice president for programs of the Kansas Health Foundation. As director of the TCP, Dr. Willett stressed the importance of policy change efforts, and he played a leading role in developing New York State’s point-of-sale initiative. He was also instrumental in the creation of the Public Health and Tobacco Policy Center, and he encouraged other states to follow New York State’s model and fund the creation of a policy center.

We wish Dr. Willett well in his new position and in all of his future efforts. We know that he will continue to be a national leader in the effort to reduce the illness and premature death caused by the use of tobacco products.