National Ass'n of Tobacco Outlets, Inc. v. City of Providence
2013 U.S. App. LEXIS 19928
| 1st Cir. | 2013Background
- Providence enacted two tobacco price and flavor ordinances to curb youth use: Price Ordinance bans coupon usage and multi-pack discounts; Flavor Ordinance bans flavored tobacco except in smoking bars.
- National Association challenged both ordinances as First Amendment violations and preemption by federal and state law; the district court denied the challenges and upheld the ordinances.
- The City offered expert affidavits and public-health data linking pricing restrictions to reductions in youth smoking; the district court found these credible.
- The court held the Price Ordinance regulates pricing, not speech, and that the Flavor Ordinance is a permissible sale restriction preserved by the FSPTCA; no field preemption by Rhode Island law was shown.
- On appeal, National Association argued the Price Ordinance is preempted by the federal Labeling Act and the Flavor Ordinance by the FSPTCA; the First Amendment challenges were also briefed.
- The First Circuit affirmed, concluding neither ordinance was preempted and both were permissible under state licensing framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment compliance of the Price Ordinance | National Association argues it regulates speech (or conduct with expressive impact) | City asserts it regulates pricing, not speech | Not violative of the First Amendment |
| Preemption of the Price Ordinance by the Labeling Act | Coupon/multi-pack discount regulation is preempted as promotional activity | Regulation is time/place/manner, not content; §1334(c) preserves it | Preemption rejected; Ordinance deemed time/place/manner regulation not preempted |
| Preemption of the Flavor Ordinance by the FSPTCA | Flavor ban imposes a tobacco product standard; preempted | Flavor ban relates to sale, saved by § 387p(a)(2)(B) and § 387p(a)(2)(A) context | Not preempted; savings clause applies to sale regulation |
| Rhode Island licensing/preemption by state law | State field preemption and exclusive licensing authority invalidates ordinances | Licensing provision exists but challenges to it were not raised; ordinances compatible | No implied field preemption; licensing issues not before court; ordinances affirmed |
Key Cases Cited
- Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748 (U.S. 1976) (pricing information protected but not implicated here)
- 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (U.S. 1996) (price regulation alone not necessarily speech-restrictive)
- United States v. Williams, 553 U.S. 285 (U.S. 2008) (offers to engage in illegal transactions categorically unprotected)
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (U.S. 2001) (regulations with communicative components; context for O'Brien use)
- 23-34 94th Street Grocery Corp. v. N.Y.C. Bd. of Health, 685 F.3d 174 (2d Cir. 2012) (post-2009 preemption analysis under Labeling Act §1334(c))
- Jones v. Vilsack, 272 F.3d 1030 (8th Cir. 2001) (preemption of promotional activity under Labeling Act prior statute)
- Nat’l Meat Ass’n v. Harris, 132 S. Ct. 965 (U.S. 2012) (savings/standards preemption framework; distinguish sales vs. manufacturing)
- U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428 (2d Cir. 2013) (sav- ings clause and sale regulations under FSPTCA)
- Engine Mfrs. Ass’n v. South Coast Air Quality Mgmt Dist., 541 U.S. 246 (U.S. 2004) (statutory preemption analysis; standards vs. sale regulation)