NYC Flavored Snuff Ban Survives Legal Challenge

     (CN) – Tobacco companies cannot challenge a New York City ban on the sale of flavored tobacco products, the 2nd Circuit ruled, finding a window for such limited regulation in federal law.
     In 2009, Mayor Michael Bloomberg signed an ordinance banning tobacco products with additives that give smoke a “characterizing flavor,” such as fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice.
     The law excludes the flavor of mint or menthol, and it offers an exemption to tobacco bars. None of the eight tobacco bars in the city, however, offer flavored smokeless tobacco, including chewing tobacco, dip and snuff.
     Two Altria subsidiaries, U.S. Smokeless Tobacco Manufacturing and U.S. Smokeless Tobacco Brands, filed a federal complaint under the Family Smoking Prevention and Tobacco Control Act of 2009 (FSPTCA), which they claimed pre-empted the city ban.
     A federal judge awarded the city summary judgment, and the 2nd Circuit affirmed Tuesday.
     “The FSPTCA’s stated purposes include, on the one hand, reducing the use of, dependence on, and social costs associated with tobacco products and, on the other, allowing the continued sale of such products to adults ‘in conjunction with measures to ensure that they are not sold or accessible to underage purchasers,'” Judge Gerard Lynch wrote for the three-judge panel.
     “Plaintiffs infer from Congress’s compromise with respect to federal policy that local governments ‘may not make it impossible or impracticable for adults to purchase tobacco products whose contents comply with the federal standards,'” Lynch added. “Significantly, however, no provision explicitly embodying such a restriction on state authority can be found in the text of the statute.”
     While the act prohibits the FDA from banning entire categories of tobacco products nationwide, it “expressly preserves localities’ traditional power to adopt any ‘measure relating to or prohibiting the sale’ of tobacco products,” the decision states (italics in original).
     In addition, the New York City ordinance does not prohibit any particular flavor ingredient or additive that might infringe on the Food and Drug Administration’s regulatory power, the court found.
     “The city does not care what goes into the tobacco or how the flavor is produced, but only whether final tobacco products are ultimately characterized by – or marketed as having – a flavor,” Lynch wrote. “No matter the level of generality used to define ‘flavored tobacco products,’ the ordinance is not easily read to direct manufacturers as to which ingredients they may or may not include in their products. We are therefore not persuaded that the city is infringing on the role reserved for the federal government, and in particular the scientifically expert FDA, of assessing the relative risks of specific ingredients or methods of production.”
     It concluded: “The city’s restriction on the sale of flavored tobacco products advances the FSPTCA’s objective of reducing the use and harmfulness of tobacco products, especially among young people, without trenching on Congress’s competing goal of keeping tobacco products generally available to addicted adults.”
     In a statement, New York City Health Commissioner Dr. Thomas Farley called the ruling “an important win for the health of New Yorkers, especially our youth.”
     “Flavored tobacco products are marketed to youth, their packaging resembling that of candy and gum, and young people are more likely than adults to try flavored tobacco products,” Farley said. “This law, one of the first of its kind in the country, ensures that youth will be protected from these harmful products.”
     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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