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Big Tobacco Challenges Ban on Flavored Snuff

MANHATTAN (CN) - New York City's ban of flavored tobacco products is unconstitutional because a federal law already regulates those products, U.S. Smokeless Tobacco Brands claims in Federal Court. Smokeless tobacco is also known as chewing tobacco, snuff, or snoose. The plaintiff is a subsidiary of Altria, formerly known as Philip Morris.

Mayor Michael Bloomberg signed the ordinance into law on Oct. 28, 2009, to effect on Feb. 25. It bans tobacco products with constituents or additives that impart a "characterizing flavor" to the smoke.

Cigarettes and products that taste like tobacco, menthol, mint or wintergreen would be legal, but flavors such as fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice are prohibited, according to the federal complaint.

Altria subsidiaries U.S. Smokeless Tobacco Manufacturing and U.S. Smokeless Tobacco Brands claim the city does not have the authority to enact such a ban because their products are already regulated by the Food and Drug Administration.

Under the U.S. Family Smoking Prevention and Tobacco Control Act, which Congress enacted in June, cigarettes are not allowed to have "characterizing flavors" other than tobacco and menthol, according to the complaint.

The Delaware-based plaintiffs claim that Congress narrowed the scope of its ban after "extensive legal debate" to prevent "potentially negative public health and economic consequences."

"Congress excluded menthol cigarettes from the federal ban, for example, because there was a significant risk of a black market for them," according to the complaint.

The plaintiffs claim that flavored tobacco products, which make up 5 to 10 percent of the moist smokeless tobacco market, could be sold only at the fewer than 10 "tobacco bars" in the city under the ban.

They want the city enjoined from enforcing the ban, alleging violations of due process, the Supremacy Clause and the Commerce Clause of the Constitution.

The plaintiffs are represented by Edward Normand with Boies Schiller & Flexner of Armonk, N.Y.

Altria fka Philip Morris makes Marlboro, Chesterfield, Merit, Lark, L&M, Philip Morris, and a slew of other cigarette brands. Chewing tobacco allegedly does not have a strong link to lung cancer, as do cigarettes, but its critics link it to cancer of the mouth, tongue and throat.

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