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• Study on flavours in NYC tobacco products is misleading on preemption
  Eric N. Lindblom
  Published on: 23 February 2018

• Published on: 23 February 2018

  Study on flavours in NYC tobacco products is misleading on preemption

  • Eric N. Lindblom, Director, Tobacco Control and Food & Drug Law O'Neill Institue for National & Global Health Law, Georgetown University Law Center

  NOT PEER REVIEWED
  Without citing any sources or providing any related analysis or explanation, this paper makes several sloppy and misleading statements about the scope and impact of federal preemption relating to state and local restrictions of flavored tobacco products.

  We know from the preemption provisions in the federal Tobacco Control Act that state and local governments may not regulate the ingredients or characteristics of a tobacco product if the state or local regulation is “different from, or in addition to” an FDA tobacco product standard. [Sec. 916(a)(2)] But we do not yet know how FDA or the courts will interpret or apply that “different from, or in addition to” phrase. For example, it could mean that state and local governments are free to prohibit or limit the use of certain flavorings in certain types of tobacco products unless or until FDA prohibits or limits flavorings for those same types of tobacco products. To assert and publish a more restrictive interpretation of federal preemption with no qualification or clarification is not only misleading but promotes a more restrictive interpretation than necessary or desirable.

  The paper also fails to note that the courts have ruled that the Tobacco Control Act’s preemption provisions leave state and local governments free to restrict the sale of flavored tobacco products within their boundaries. [See, e.g., U.S. Smokeless Tobacco v. City of New York, 708 F.3d 428 (2nd Cir., 2013).] The...

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  NOT PEER REVIEWED
  Without citing any sources or providing any related analysis or explanation, this paper makes several sloppy and misleading statements about the scope and impact of federal preemption relating to state and local restrictions of flavored tobacco products.

  We know from the preemption provisions in the federal Tobacco Control Act that state and local governments may not regulate the ingredients or characteristics of a tobacco product if the state or local regulation is “different from, or in addition to” an FDA tobacco product standard. [Sec. 916(a)(2)] But we do not yet know how FDA or the courts will interpret or apply that “different from, or in addition to” phrase. For example, it could mean that state and local governments are free to prohibit or limit the use of certain flavorings in certain types of tobacco products unless or until FDA prohibits or limits flavorings for those same types of tobacco products. To assert and publish a more restrictive interpretation of federal preemption with no qualification or clarification is not only misleading but promotes a more restrictive interpretation than necessary or desirable.

  The paper also fails to note that the courts have ruled that the Tobacco Control Act’s preemption provisions leave state and local governments free to restrict the sale of flavored tobacco products within their boundaries. [See, e.g., U.S. Smokeless Tobacco v. City of New York, 708 F.3d 428 (2nd Cir., 2013).] These rulings suggest that state or local laws that restricted the sale of any tobacco products that contained more than a specified amount of certain flavorings would not be preempted (at least if they did not totally prohibit their sale). The tobacco industry would certainly bring legal challenges against any such state or local law and argue for a more restrictive interpretation. But unless the courts actually adopt the tobacco industry’s preferred view of the Tobacco Control Act’s preemption provisions, it is inaccurate and counterproductive for publications in Tobacco Control to present that restrictive view as current law.

  Finally, the paper also implies that state and local governments cannot use chemical testing to determine the quantities of added flavorings in specific tobacco products as part of their enforcement efforts to establish violations of their (not preempted) laws restricting the sale of flavored tobacco products. But there is a big difference between directly regulating the amount of flavorings in certain types of tobacco products (possibly subject to preemption) and measuring the amount of flavorings in a tobacco product to develop evidence that it is a flavored tobacco product being sold in violation of a state or local sales restriction (not subject to preemption). For example, federal preemption could not possibly apply to a state or local enforcement agency using chemical analysis to show that a tobacco product has as much or more cherry flavoring than tobacco products previously marketed and sold as cherry flavored in order to establish that the sale of the tobacco product at regular retail outlets violates a (not-preempted) state or local law that allows the sale of tobacco products with a characterizing flavor of cherry only at licensed, adult-only tobacconists.

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  Conflict of Interest:
  None declared.

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