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Gas Stations Fight Chicago Cigarette Ban

CHICAGO (CN) - Chicago's ordinance banning sales of flavored cigarettes, including menthols, within 500 feet of a school will force gas stations to close throughout the city, a trade association claims in court.

Independents Gas & Service Stations Associations (I-Gas) sued Chicago on Sept. 27 in Federal Court.

As part of Mayor Rahm Emmanuel's "Healthy Chicago" initiative, the City Council banned the sale of flavored tobacco products within 500 feet of schools in December last year.

"Swisher Sweets come in kid-friendly flavors like peach, strawberry, tropical fusion, chocolate, grape, and blueberry. With colorful packaging and sweet flavors, these products are often hard to distinguish from the candy displays that are frequently placed near the cash register in retail outlets," the ordinance states.

It adds that "use of menthol-flavored cigarettes is prevalent among child smokers in the black (72 percent), Asian (51 percent), Hispanic (47 percent) and white (41 percent) communities, as well as among young lesbian/gay/bisexual/transgender smokers (71 percent). The FDA has confirmed that menthol cigarettes are more addictive and harder to quit than unflavored cigarettes."

Newport, a prominent menthol cigarette brand, increases advertising for its product by as much as 42 percent in areas near predominantly black high schools, according to a study cited by the ordinance.

However, I-Gas claims: "The FSPTCA [Family Smoking Prevention and Tobacco Control Act] preempts the Ordinance. ... Defining banned tobacco products on the basis of their constituents or additives, the Ordinance functions identically to the federal standard for the use of characterizing flavors in tobacco products, including cigarettes."

Gas stations very little profit on gasoline sales, and rely on sales from the attached convenience store, especially cigarettes, lottery tickets, and beverages, according to the complaint.

I-Gas claims that menthol cigarettes account for 25 percent of cigarette sales.

"The enforcement of the Ordinance will directly and irreparably harm plaintiff. Plaintiff's products include cigars, cigarettes and a number of other tobacco products that the Ordinance could be construed as banning. The Ordinance will injure plaintiff because it will prevent it from continuing to sell, or sell for resale, any flavored tobacco products in violation of rights guaranteed to plaintiff under the Supremacy and Due Process Clauses of the United States Constitution. This Ordinance will result in lost profits and will likely cause widespread closings of gasoline service stations throughout the city of Chicago," the complaint states.

I-Gas claims that the ordinance applies even to schools not recognized by the State Board of Education.

"As a result, a school, no matter its size, duration in existence, or accreditation will restrict a tobacco retailer from selling flavored tobacco products.

"The 500 feet regulation is a guise to what is otherwise a 'manifest destiny' ban of flavored tobacco products, including menthol cigarettes," I-gas says.

It seeks a court order declaring the ordinance invalid and unconstitutional.

It is represented by David Sweis, of Oak Brook.

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