Providence R.I. Appeal Challenges Tobacco Ordinances

cigarettes2The U.S. Circuit Court of Appeals has scheduled an oral argument for Monday, July 29, 2013 in Boston, regarding the appeal of a federal district court decision to uphold Providence, R.I. ordinances banning retailers from redeeming tobacco product coupons, prohibit multi-pack tobacco product discount pricing, and not allowing the sale of certain flavored tobacco products, the National Association of Tobacco Outlets (NATO) reported.

NATO, the Cigar Association of America, Lorillard Tobacco Co., R.J. Reynolds Tobacco Co., American Snuff Company, Philip Morris USA, Inc., U.S. Smokeless Tobacco Manufacturing Company, and John Middleton Co. are the plaintiffs and appellants in the litigation.

The first ordinance in question bans the redemption of tobacco product coupons and prohibits discounts and promotional pricing on multi-pack tobacco products.

However, a longstanding federal law— the Federal Cigarette Labeling and Advertising Act—says only the federal government, not a state or city government, has the authority to regulate the advertising and promotion of cigarettes.  Because federal courts have issued decisions that advertising and promotion include product coupons and product discounts, then the Federal Cigarette Labeling and Advertising Act should pre-empt the Providence coupon and price promotion ordinance, NATO explained.

The second Providence ordinance bans the sale of certain tobacco products that have a characterizing flavor other than menthol, mint or wintergreen. 

This ordinance attempts to go beyond the flavored cigarette ban passed by Congress as a part of the federal law that authorizes the FDA to regulate tobacco products.  However, this federal law provides that Congress and the FDA shall establish national tobacco product standards, including federal standards regulating what flavored tobacco products may be sold in the U.S.  While the City of Providence attempts to claim that it is not regulating the composition of tobacco products, just the sale of flavored products within the city’s borders, the U.S. Supreme Court has rejected similar efforts by state and local governments to circumvent a federal law by banning the “sale” of the product, and not the substances in a product, NATO pointed out.

With the oral argument hearing scheduled for July 29, the U.S. Circuit Court of Appeals is expected to reach a decision within 3-6 months after the hearing.

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