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Flavour chemicals in a sample of non-cigarette tobacco products without explicit flavour names sold in New York City in 2015
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    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    NOT PEER REVIEWED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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    Conflict of Interest:
    None declared.