November 8, 2014

Stanton A. Glantz, PhD

Chicago's ban on sale of flavored tobacco products (including menthol) survives first court test

The City of Chicago has gone way beyond then FDA and prohibited the sale of flavored tobacco products (not just cigarettes) within 500 feet of schools.  Pro-tobacco forces immediately sued, making the usual claims that the law was unconstitutional, would destroy business, and was preempted by federal law and requested a temporary restraining order (TRO) prohibiting the city from enforcing the law.  (The two industry filings are here and here.)
 
The city vigorously defended the law (responses here and here) and the judge refused to grant the TRO.
 
Two things about the decision were especially encouraging:
 
1. The judge noted that the plaintiffs had not presented a shred of evidence to support the claim that the law law was creating economic chaos.  When considering industry suits against smokefree restauant and bar laws courts often accepted these kinds of unsubstantiated claims of adverse economic effects.  It was nice to see the judge wanting to see more than empty rhetoric.
 
2. The judge noted that the Family Smoking Prevention and Tobacco Control Act was specifically not preemptive.  One wonders if the tobacco lawyers assumed that the judge (and the city's attorneys) would not bother reading what the law actually said.
 
Another important thing that the ordinance does is that it defines a “flavored tobacco product” (something the FDA has not done).  Section 4-64-098 of the ordinance defines 'flavored tobacco product' as

"any tobacco product that contains a constituent that imparts a characterizing flavor. As used in this definition, the term ‘characterizing flavor’ means a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product, including, but not limited to, tastes or aromas of menthol, mint, wintergreen, chocolate, vanilla, honey, cocoa, any candy, any dessert, any alcoholic beverage, any fruit, any herb, and any spice; provided, however, that no tobacco product shall be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information. A public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate such statements, that a tobacco product has or produces a characterizing flavor shall establish that the tobacco product is a flavored tobacco product."
 
Thanks to Chicago for its leadership.

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