U.S. Smokeless Tobacco Manufacturing Co. v. City of New York
2013 U.S. App. LEXIS 3973
| 2d Cir. | 2013Background
- Plaintiffs U.S. Smokeless Tobacco Mfg. Co. and U.S. Smokeless Tobacco Brands challenged NYC Admin Code § 17-715, which bans sale of flavored tobacco products except in tobacco bars.
- The ordinance targets flavored non-cigarette tobacco products by prohibiting their sale in NYC.
- Plaintiffs argue the ordinance is preempted by the Family Smoking Prevention and Tobacco Control Act (FSPTCA).
- FSPTCA grants FDA authority over tobacco products but preserves state/local power to regulate sale of tobacco.
- Record shows eight NYC tobacco bars (all in Manhattan) and none sell flavored smokeless tobacco, so plaintiffs’ anticipated enforcement impact is limited.
- District court granted summary judgment for City, finding no preemption; plaintiffs appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the NYC ordinance preempted by the FSPTCA? | U.S. Smokeless argues the ordinance is a backdoor product standard. | City contends the ordinance regulates sale, not manufacturing, thus saving clause applies. | Not preempted; ordinance is a sale regulation, saved by § 387p(a)(2)(B). |
| Whether the ordinance is a product standard or a sale regulation under § 916 | Ordinance functions as a manufacturing standard to evade preemption. | Ordinance regulates sale of a flavored category, not production standards. | Sale regulation; not a product standard under § 916. |
| Whether saving clause § 387p(a)(2)(B) protects a sale-regulation even if it resembles a ban | Saving clause does not permit sales bans. | Saving clause covers sale-related requirements; complete ban is not required to be unpreempted. | Saving clause applies; ordinance is a sale-related restriction, not an outright ban. |
Key Cases Cited
- Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005) (presumption against preemption; federal law preempts only where intended)
- Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (highly contextual preemption analysis; state action preserved when compatible)
- N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 2010) (preemption framework in Second Circuit; express clause focus)
- 29 34 94th St. Grocery Corp. v. N.Y. City Bd. of Health, 685 F.3d 174 (2d Cir. 2012) (guides interpreting preemption and local health regulations)
- Ass’n of Intl. Auto. Mfrs., Inc. v. Abrams, 84 F.3d 602 (2d Cir. 1996) (interpretation of express preemption provisions; agency powers)