By Bernard Vaughan
NEW YORK, Feb 26 (Reuters) - The 2nd U.S. Circuit Court of
Appeals on Tuesday affirmed a district judge's decision that
upheld a New York City ordinance limiting the sale of flavored
tobacco products, saying the measure did not pre-empt federal
The ruling marks a victory for the city, which under Mayor
Michael Bloomberg has pushed several health-focused measures,
including limits on sales of supersize soft drinks in an effort
to fight obesity. The tobacco ordinance, signed into law and
approved by the city council in October 2009, prohibits the sale
of any flavored tobacco product except in a tobacco bar.
Sharyn Rootenberg of the New York City Law Department
handled the case on appeal for the city.
Kenneth Parsigian of Latham & Watkins represented the U.S.
Smokeless Tobacco Manufacturing Company LLC, whose moist
smokeless tobacco brands include Copenhagen and Skoal, and U.S.
Smokeless Tobacco Brands Inc. Both entities are units of Altria
Tuesday's decision backed a summary judgment ruling in favor
of the city granted by U.S. District Judge Colleen McMahon in
Federal law "expressly preserves localities' traditional
power to adopt any 'measure relating to or prohibiting the sale'
of tobacco products," Judge Gerard Lynch wrote for the
three-judge panel, which also included Judges Reena Raggi and
"We are disappointed with the court's decision and are
considering our options," said Brian May, a spokesman for
The City Law Department was not immediately available for
The ordinance sought to deter younger smokers often
attracted to flavored tobacco products, Bloomberg said before
signing it in 2009.
In late 2009, the plaintiffs filed a lawsuit in Manhattan
federal district court, seeking to stop enforcement of the
The plaintiffs argued that a statute that Congress passed in
2009, the Family Smoking Prevention and Tobacco Control Act,
pre-empted the city ordinance. The federal law granted the Food
and Drug Administration power to regulate tobacco products.
The city ordinance was a products standard regulation
designed to "evade express federal pre-emption ... by artful
crafting that elevates form over substance," the appellants
wrote in their brief.
But the 2nd Circuit concluded that the ordinance does not
require tobacco manufacturers to alter the properties of their
products, which would have subjected it to federal pre-emption.
"A local sales regulation that does not clearly infringe on
the FDA's authority to determine what chemicals and processes
may be used in making tobacco products does not fall within this
description and is therefore not pre-empted," Lynch wrote.
The 2nd Circuit also disagreed with the plaintiffs' argument
that the ordinance is effectively an outright ban on the sale of
flavored tobacco products.
"While the sales restriction imposed by the City's ordinance
is severe, it does not constitute a complete ban, as it permits
the limited sale of flavored tobacco products within New York
City," Lynch wrote.
The case is U.S. Smokeless Tobacco Manufacturing Company
LLC, U.S. Smokeless Tobacco Brands Inc. v. City of New York, 2nd
U.S. Circuit Court of Appeals, No. 11-5167
For U.S. Smokeless Tobacco Manufacturing Company LLC, U.S.
Smokeless Tobacco Brands Inc: Kenneth Parsigian of Latham &
For the City of New York: Sharyn Rootenberg and Michael
Pastor of the New York City Law Department.
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