United States

After the enactment of the Family Smoking Prevention and Tobacco Control Act by the U.S. government in 2009, Plaintiff tobacco companies challenged a New York City law prohibiting the sale of “any flavored tobacco product except in a tobacco bar.”  The law did not include cigarettes or flavors of tobacco, menthol, mint or wintergreen.  Plaintiffs asserted the New York City law was preempted by the federal act and was thus invalid.  This opinion of the Court of Appeals for the Second Circuit was delivered after the trial court ruled against the plaintiffs on summary judgment.  Plaintiffs argued the New York law was a “veiled attempt to regulate the manufacture of tobacco products” instead of a restriction on the retail sale of products with a specific characteristic.   The court held the law fit within the federal law because it invoked powers reserved for states and fell within the federal laws exemption clause for preemption that allowed states to enact laws restricting retail sales.  The court thus affirmed the lower court’s judgment and dismissed the appeal.