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Media Alerts - U.S. Smokeless Tobacco Mfg. Co., et al. v. City of New York - Second Circuit
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February 26, 2013
  U.S. Smokeless Tobacco Mfg. Co., et al. v. City of New York - Second Circuit
Headings: Second Circuit Upholds New York City Regulation Restricting the Sale of Flavored Tobacco Products

Area of Law: Public Health

Issue(s) Presented: Whether New York City's flavored tobacco sales regulations impermissibly regulate the manufacture of tobacco products and are therefore preempted by federal law under the Family Smoking Prevention and Tobacco Control Act?

Brief Summary:
A New York City ordinance prohibits the sale of all flavored tobacco products, not including cigarettes, other than in a tobacco bar. Only eight tobacco bars exist in New York City, all in Manhattan, and none sell flavored smokeless tobacco. U.S. Smokeless Tobacco sought to enjoin enforcement of the ordinance, arguing that the regulation is, in fact, a product standard or manufacturing regulation that is preempted by the federal Family Smoking Prevention and Tobacco Control Act (the "FSPTCA").

The United States District Court for the Southern District of New York granted summary judgment for New York City upholding the ordinance and finding it was not preempted by federal law. The Second Circuit agreed, reading the FSPTCA's preemption clause narrowly and ruling that New York City's ordinance restricts the sale of flavored tobacco products and does not direct manufacturers as to specific ingredients to be included or excluded from their product and, accordingly, is not preempted by provisions of the federal law relating to tobacco product standards.

To read the full opinion, please visit:

Extended Summary:
New York City prohibits the sale of any flavored tobacco product except in a tobacco bar. A flavored tobacco product is defined as any item, not including cigarettes, that contains both tobacco and a constituent that imparts a characterizing flavor such as a distinguishable taste or aroma, other than that of tobacco, mint or wintergreen. Only eight tobacco bars exist in New York City, all of which are in Manhattan and none of which sell flavored smokeless tobacco as defined by the ordinance. As a result, flavored smokeless tobacco is presumed to be unavailable for purchase anywhere in New York City.

Plaintiffs, U.S. Smokeless Tobacco Manufacturing Company LLC and U.S. Smokeless Tobacco Brands Inc., sought an injunction in the United States District Court for the Southern District of New York against enforcement of the New York City ordinance, arguing that the ordinance is preempted by federal law under the Family Smoking Prevention and Tobacco Control Act ("FSPTCA"). The District Court found New York City's flavored tobacco sales regulation was not preempted by federal law and plaintiffs appealed.

Congress enacted the FSPTCA in 2009 to grant the Food and Drug Administration authority to regulate tobacco products. The FSPTCA contains three related preemption provisions. The first, a preservation clause, protects localities traditional power to adopt measures "relating to or prohibiting the sale" of tobacco products. Next, a preemption clause establishes an exception to the broad preservation of state and local authority by preempting "any requirement . . . relating to tobacco product standards." Finally, a saving clause creates an exception to the exception, stipulating that the preemption clause does not apply to state and local requirements "relating to the sale . . . of tobacco products." Therefore, the FSPTCA "reserves regulation at the manufacturing stage exclusively to the federal government, but allows states and localities to continue to regulate sales and other consumer-related aspects of the industry in the absence of conflicting federal regulation."

Plaintiffs argued that New York City's ordinance, while written as a sales regulation, functioned in fact as a de facto product standards regulation that impermissibly regulated the manufacture of their product. The Second Circuit remarked that a sales ban which functions in fact as a command to tobacco manufacturers to structure their operations in accordance with the locally prescribed standards would not escape preemption simply because it was framed as a sales regulation, however, a local sales ban is not preempted simply because it has an effect on a manufacturers production decisions. Rather, to be a product standard subject to preemption, a local sales regulation must require manufacturers to alter the construction, components, ingredients, additives, constituents and properties of their products. Therefore, a local sales regulation is not preempted unless it clearly infringes upon the Food and Drug Administration's authority to determine what chemicals and processes may be used in making tobacco products.

The Second Circuit held, here, that New York City's definition of flavored tobacco relies upon its characteristics as an end product - whether it imparts "a distinguishable taste or aroma"- not whether it was manufactured in any particular way. The use of artificial or natural flavors is not per se proscribed. In other words, "the City does not care what goes into the tobacco or how the flavor is produced, but only whether the final tobacco products are ultimately characterized by - or marketed as having - a flavor." Therefore, since the ordinance is not easily read to direct manufacturers as to the specific ingredients that must be included or excluded from their products, the Court held that the New York City's flavored tobacco sales ordinance is not preempted by the FSPTCA.

To read the full opinion, please visit:

Panel: Circuit Judges Raggi, Newman and Lynch.

Argument Date: 11/06/2012

Date of Issued Opinion: 02/26/2013

Docket Number: No. 11-5167

Decided: Affirmed

Case Alert Author: Matthew Auten

Counsel: Kenneth J. Parsigian (Abigail K. Hemani, on the brief), Goodwin Procter LLP, Boston, MA, for Plaintiffs-Appellants. Michael Jordan Pastor, Assistant Corporate Counsel (Michelle Goldberg-Cahn, Sherrill Kurland, Larry A. Sonnenshein, Sharyn Michele Rootenberg, on the brief), for Michael A. Cordozo, Corporation Counsel, New York, NY, for Defendant-Appellee.

Author: Circuit Judge Lynch

Case Alert Circuit Supervisor: Professor Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 02/26/2013 01:30 PM     2nd Circuit  

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