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Public Health Advocacy Institute

at Northeastern University School of Law

360 Huntington Avenue, 117CU

Boston, MA 02115

tobacco@tobaccopolicycenter.org

You are here: Home > Tobacco Control > Tobacco Litigation > Flavored Tobacco Sales Regulations

Flavored Tobacco Sales Regulations

There are five cases involving local regulations of flavored tobacco product sales:
U.S. Smokeless Tobacco Mfg. Co. v. New York City (2010)
National Association of Tobacco Outlets, Inc. v. City of Providence (2013)
Independent Gas & Service Stations Associations, Inc. v. Chicago (2015)
Cumberland Farms, Inc. v. Town of Yarmouth Board of Health (2019)
Cumberland Farms, Inc. v. Board of Health of the Town of Barnstable and Others (2019)

Additionally, eight new complaints have been filed against local jurisdictions in 2019-2020 that have yet to be heard by the Courts. Click here to access a brief summary of the new complaints with links to further information.

U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp. 2d 329 (S.D.N.Y. 2010)

New York City prevailed in its efforts to restrict the widespread sale of flavored tobacco products. On February 26, 2013, the Second Circuit Court of Appeals ruled that a New York City (City) ordinance restricting the sale of flavored tobacco products to tobacco bars is not preempted or prohibited by the Family Smoking Prevention and Tobacco Control Act (FSPTCA, 21 USC §387 et. seq.). The City law prohibits the sale of any non-cigarette tobacco product with a “characterizing flavor” (other than tobacco menthol, mint or wintergreen) outside of tobacco bars (NYC Admin. Code §17-715). Tobacco bars are a narrow class of eight food retailers that have registered with the City since 2002, and there are no new retailers permitted in this category. Prohibited flavors include: any fruit, chocolate, vanilla, honey, alcoholic beverages, clove, licorice, and coffee. Flavored tobacco products entice youth through appealing descriptors and by masking naturally harsh tobacco flavors and aromas. The law does not apply to cigarettes; FSPTCA already prohibits the manufacturing and sale of flavored cigarettes. (21 U.S.C. §387g(a)(1)(A)).New York City Bans Flavored Tobacco Products - KillTheCan.org

The plaintiffs, who were manufacturers and wholesalers of flavored smokeless tobacco, appealed a 2011 District Court summary judgment ruling that held the FSPTCA preserves the rights of states and municipalities to enact more restrictive laws and regulations concerning the sale of tobacco products than those in the federal law.

The Second Circuit reviewed the grant of summary judgment “de novo,” meaning the Court did not rely on the lower court’s findings and instead reviewed the case as if it were a new trial. In determining whether NYC’s ordinance was preempted (prohibited) by FSPTCA, the Court first examined the FSPTCA and its recognition of state and local authority to enact a law or other measure that is “in addition to, or more stringent than, requirements” under the FSPTCA, “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.” (21 USC §387p(a)(1), emphasis added). This recognition of state rulemaking authority is referred to as the “preservation clause.”

The Court then moved to the FSPTCA’s exceptions to this broad preservation of state authority to regulate tobacco, noting the FSPTCA specifically preempts state or local regulation of “tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.” (21 USC §387p(a)(2)(A)). Finally, the court reviewed what it characterized as “an exception to an exception,” or the “savings clause”: A state law which is authorized under the preservation clause, but which falls into the category of preempted regulations, may still be permissible under the FSPTCA.  The FSPTCA “saves” from preemption (permits) state or local “requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age.” (21 USC §387p(a)(2)(B)).

The plaintiffs argued, unsuccessfully, that the FSPTCA preempted the City ordinance.  Plaintiffs argued that local governments could not make it impossible for adults to purchase tobacco products that comply with federal standards. The Court disagreed, stating that while the FDA cannot ban entire categories of tobacco products under the FSPTCA, state and local governments were not similarly limited. Instead, the Court noted, the FSPTCA expressly allows local sales prohibitions for tobacco products.

Plaintiffs further argued that the City ordinance was an impermissible product standard regulation in disguise. The Court again disagreed. The Court noted that while localities cannot regulate tobacco product standards (this is left to the federal government) state and local governments may regulate the sales of finished tobacco products and other consumer-related aspects of the industry (so long as they do not conflict with federal regulations). The City ordinance does not relate to the ingredients of tobacco products, but simply requires that finished tobacco products that are characterized or marketed as flavored not be sold outside of tobacco bars in the City.

The Court further noted that even if the ordinance was a regulation of product standards preempted by the FSPTCA, the savings clause of the federal law permits local laws relating to the sale of tobacco products. Plaintiffs attempted to argue that the savings clause does not allow a total ban on particular products. The Court did not reach the question of whether a ban would be permissible under the savings clause, finding that the City ordinance allows limited sale of flavored tobacco products at tobacco bars, and is therefore not a complete ban.

In summary, the Second Circuit Court of Appeals found that Congress intended to preserve state and local authority to regulate the sale of tobacco products. The Court found the ordinance to advance the goals of the FSPTCA—in particular, the reduction of tobacco use among youth—and affirmed the award of summary judgment by the District Court.


Independents Gas & Service Stations Associations, Inc., v. City of Chicago 2015 WL 4038743 (June 29, 2015)

A United States District Court has upheld Chicago’s sales restrictions on flavored tobacco products. Specifically, the law restricts the sale of any flavored tobacco product, including menthol flavored products, within 500 feet of a school.

In an effort to reduce smoking among youth and adults alike, the Chicago City Council in 2013 adopted a law restricting the sale of flavored tobacco products to retail tobacco stores (defined as retail stores which derive 80 percent of their gross revenue from the sale of tobacco products). In October 2014, an association of independent small business owners and operators of gas stations and a convenience store (plaintiffs) challenged the law alleging:

(1) The sales restriction was a “product manufacturing standard” in disguise and thus preempted by the Family Smoking Prevention and Tobacco Control Act (FSPTCA);

(2) The description of a “school” was too vague to permit retailers to understand whether they were prohibited from selling flavored tobacco products, in violation of the Fourteenth Amendment of the U.S. Constitution; and

(3) Because it applied “retroactively” to retailers who, at the time the law was enacted, possessed valid licenses to sell tobacco products, the sales restriction violated their “vested rights” and the Due Process clause of the U.S. Constitution.

Judge Matthew F. Kennelly was unpersuaded by plaintiffs’ arguments and dismissed all of their claims. First, he found that while the FSPTCA permits state and local tobacco sales regulations and preempts state or local product manufacturing standards, the law specifically “saves” from this preemption “requirements relating to the sale, distribution, possession, ….exposure to, access to, advertising and promotion of, or use of, tobacco products by individuals of any age.” Additionally, the court agreed with and cited the reasoning of the Second Circuit Court of Appeals in Smokeless Tobacco Manufacturing Co. LLC v. City of New York that even though sales regulations may affect the decisions of manufacturers, to be considered a manufacturing standard, the regulation must be “something more than an incentive or motivator.”

The judge swiftly dismissed plaintiffs remaining arguments and held that the failure of the ordinance to precisely define an easily understood term like “school” did not render it unconstitutionally vague. Judge Kennelly further held that a business license is not a “vested right,” which would necessarily mean that the terms of the license could not be altered. There is no vested right in “the mere continuance of a law,” nor does the sales restriction impose new legal consequences on those stores that sold flavored tobacco products within 500 feet of a school prior to its enactment.


Chain Convenience Store Challenges Local Flavored Tobacco Sales Restrictions in MA

Cumberland Farms, a convenience store chain with over 500 locations, challenged the enactment and enforcement of sales restrictions on flavored tobacco products in Massachusetts by litigating against several local health authorities. After these cases were filed, Massachusetts enacted a statewide law restricting the sale of flavored tobacco and vapor products to licensed facilities where the flavored products may be only used on site. The litigation against Yarmouth, MA has been resolved and the decision may remain relevant; the court has not yet reached a decision in the later litigation against the several jurisdictions, and may find the claims moot in light of the superseding state law.

Cumberland Farms, Inc. v. Town of Yarmouth Board of Health (2019-P-0020)

The town of Yarmouth, like over 150 other communities in Massachusetts, enacted a regulation prohibiting retail sales of most flavored tobacco products. In 2017, a health inspector enforcing Yarmouth’s regulation found Cumberland Farms in violation for selling three products that were flavored products. Although the packaging for these products did not reference a particular characterizing flavor, such as “cherry” or “mocha,” the health inspector identified the products as flavored because they smelled or tasted different from tobacco. Such products have been referred to as “concept flavors,” because the product name refers to a flavor-invoking concept rather than a particular conventional flavor. In this case, the cigar products found by the inspector to violate Yarmouth’s favored tobacco product regulation were Black & Mild Cigars’ “Jazz,” White Owl’s “Green Sweet,” and Garcia Y Vega’s “Red.”

At issue here is how to identify a flavored tobacco product when the manufacturer is not naming the flavor. The Massachusetts Association of Health Boards had developed a guidance list of suspected flavored tobacco products and enforcement agents of local health boards initially relied on the list rather than testing each product to determine whether it imparted a characterizing flavor. The health agent cited the store for selling three products on that list, whereas Cumberland Farms maintained, at a hearing before the health board, that those three products were not flavored tobacco products. After examining the evidence relied on for the initial flavor determination for the cigars in question, the board upheld the violation, issued a fine, and suspended the store’s tobacco sales permit for one week.

Cumberland Farms then filed a lawsuit against the Town of Yarmouth, arguing that the enforcement provisions of the regulation and reliance on the guidance list were arbitrary and capricious and moving for a preliminary injunction to stop the permit suspension from going into effect. At the hearing for the preliminary injunction, it came to the court’s attention that two of the cited flavored products, White Owl “Green Sweet” and Garcia Y Vega “Red,” had been removed from the guidance list. The court sent the case back to the health board where, in a second hearing, it was confirmed that these two products were no longer on the list of flavored tobacco products while the other product, Black & Mild “Jazz,’ remained. The store argued that the guidance list was not reliable, while the board members smelled the “Jazz” cigar and reissued a fine and permit suspension. That decision was appealed to the state court in December of 2017.Jazz Black & Mild Cigars | Machine Made Cigars | JR Cigars

In September of 2018, the court ruled against Cumberland Farms, finding that “the court must give due weight to the overall judgment of the agency.” It also found that a court “cannot substitute its judgment for that of the agency,” where the agency has made a discretionary exercise of its expertise. This is the hallmark of “Chevron deference,” the principle stemming from a 1984 U.S. Supreme Court decision holding that courts should defer to the expertise of agencies’ reasonable interpretation of their own regulations.

In January of 2019, Cumberland Farms further appealed to the intermediate appeals court in Massachusetts. Instead of challenging just the content of the regulation or enforcement of flavor restrictions, the chain store also challenged the legal authority of the local health board to issue fines at all. The chain store contended that health boards may not issue fines on their own and must file either a criminal complaint or obtain legislative authority for a civil sanction process known as “non-criminal disposition.” In reality, for decades many, if not most Massachusetts health boards have enforced regulations by directly issuing fines and the relief that Cumberland Farms sought would have placed significant restrictions on health boards’ ability to enforce regulations beyond sales of flavored tobacco products. In March 2020 the court rejected Cumberland Farm’s claims and upheld the lower court decision, preserving the authority of health boards to enforce local regulations and delivering a win for public health.

Cumberland Farms, Inc. v. Board of Health of the Town of Barnstable and Others 1984CV2017-C

In separate yet related litigation, Cumberland Farms sued six other Massachusetts municipalities in June 2019 on the basis that their restrictions on the sale of flavored tobacco products are arbitrary and capricious and, therefore, exceed the authority to health board to issue reasonable health regulations. The lawsuit named Barnstable, Billerica, Framingham, Sharon, Somerville, and Walpole, jurisdictions which include mint, menthol and wintergreen flavors in their tobacco product sales law.

At the August 2019 preliminary injunction hearing, Cumberland Farms alleged several faults of the local laws, among them that including vapor products in the sales restriction is irrational and harms public health, and that only the federal government may regulate menthol cigarettes.  The chain store further argued that the law violates Equal Protection, by allowing age-restricted tobacco stores to sell flavored tobacco products, but not allowing these sales by convenience stores like Cumberland Farms. The judge denied the preliminary injunction, finding the chain store’s arguments were unlikely to ultimately prevail.


New Complaints Filed in 2019-2020

In 2019 and 2020, tobacco and vape companies and retailers sued numerous local governments, challenging local authority to regulate the sale of flavored tobacco products. Notably, these companies have challenged only restrictions that do not exempt menthol as a flavor, signaling the importance of menthol cigarettes to their bottom lines. In these lawsuits, companies and their proxies generally argue that restricting the sale of flavored tobacco products is actually setting a tobacco product standard, something local governments may not regulate. The Tobacco Control Act allows only the FDA to direct manufacturers how to make their products by setting product standards, such as permissible product ingredients, characteristics.

Industry made this same claim when challenging New York City’s 2010 restriction on the sale of flavored non-cigarette tobacco products, summarized above. The scope of the more recent laws now being challenged is broader than the previously upheld New York City and Providence, RI laws. For instance, some of the recently challenged laws prohibit sales of flavored vapor products and menthol cigarettes, providing Industry an opportunity to recycle their claims and try their arguments before different courts.

Eight active lawsuits challenging local restrictions on the sale of flavored tobacco product are listed below. Where available, we’ve embedded links to case summaries by our colleagues at the Public Health Law Center, who will update their summaries as cases progress through the courts.

Last updated July 28, 2020

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