In 2009, New York City passed a law banning the sale of nearly all flavored smokeless tobacco products. A major tobacco company sued the city soon afterward, claiming that the ordinance was preempted by federal law. But a federal court has upheld the ban.

The decision in US Smokeless Tobacco v. City of New York firmly establishes the right of local governments to limit or ban the sale of any particular tobacco product, such as flavored smokeless tobacco, menthol flavored tobacco, or flavored little cigars and cigarillos, among other products.

Background

In October 2009, New York City passed a law that bans the sale of nearly all flavored smokeless tobacco products, with a minor exception allowing flavored smokeless tobacco to be sold in “tobacco bars,” a type of tobacco shop.

US Smokeless Tobacco, a manufacturer of moist smokeless tobacco (e.g., Copenhagen and Skoal), sued New York City, claiming in part that the Family Smoking Prevention and Tobacco Control Act (the “Tobacco Control Act”) preempts the New York City ordinance, and the NYC law unconstitutionally burdens out-of-state tobacco manufacturers.

In March 2010 the court denied a preliminary injunction that would have prevented the city from enforcing the law, therefore the law remained in effect throughout the case. After the case had progressed for over a year, both sides filed summary judgment motions asking the court to rule in their favor without the need for a trial.

The court’s decision

On November 15, 2011, a U.S. District Court in New York granted the City’s motion for summary judgment and denied the motion by US Smokeless. This means that the court upheld the New York law limiting the sale of flavored smokeless tobacco. The court said that local governments are free to create regulations that are stricter than those contained in the Tobacco Control Act, including restrictions on the sale or distribution of tobacco products, and that the various arguments to the contrary by US Smokeless had no merit.

US Smokeless may choose to appeal this decision to the U.S. Court of Appeals for the Second Circuit. If that decision is appealed, the case would then go to the U.S. Supreme Court. Only a decision in the case by the U.S. Supreme Court would be binding on California.