March 26, 2010 - In an order dated Monday, March 22nd and made public Tuesday, March 23rd, U.S. District Judge Colleen McMahon in Manhattan has rejected a move to temporarily stop the implementation of a new law restricting the sale of flavored tobacco products in New York City. The judge rejected a motion for a preliminary injunction by U.S. Smokeless Tobacco Manufacturing Company LLC, the maker of moist smokeless products Skoal and Copenhagen, and U.S. Smokeless Tobacco Brands Inc. Both companies are part of Altria Group Inc. (MO).
On Wednesday October 28, 2009, Mayor Michael R. Bloomberg signed legislation on to prohibit the sale of most forms of flavored tobacco products in New York City. The new law is more extensive than the federal Food and Drug Administration’s ban on candy- and fruit-flavored cigarettes, which took effect last month. (New York City - ban on flavored tobacco products becomes law..)
A legal challenge was filed Dec. 28, 2009, by U.S Smokeless Tobacco Manufacturing Co. LLC and U.S. Smokeless Tobacco Brands Inc. (USST), both Altria subsidiaries. The companies seek to enjoin [for a court to order that someone either do a specific act, cease a course of conduct or be prohibited from committing a certain act] the City of New York from imposing tobacco product standards for smokeless and certain other types of "flavored tobacco products," as outlined in an ordinance signed into law by Mayor Michael Bloomberg on Oct. 28, 2009. (U.S. Smokeless Tobacco seeks to enjoin the City of New York from imposing tobacco product standards..
In response to the suit, New York City Council Speaker Christine Quinn, health care advocates and several members of the City Council gathered at City Hall to let “big tobacco” know they wouldn’t be backing down, settling or negotiating anytime soon. (NY City Council not backing down as US Smokeless Tobacco files lawsuit against city..)
The tobacco companies had argued in part that the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA) pre-empts local laws that establish a product standard with respect to characterizing flavors in cigarettes and delegates authority for adopting additional tobacco product standard to the U.S. Food & Drug Administration.
"Plaintiffs' gloss on the FSPTCA overlooks several of the Act's key provisions, the lack of an actual conflict between the federal and local law, and the judicial presumption against preemption in matters of health and safety, " the judge said. "Therefore, the Court finds it highly unlikely that plaintiffs will ultimately prevail on the merits, and their motion for a preliminary injunction is denied."
In October 2009, New York City Mayor Michael Bloomberg signed an ordinance into law that bans the sale of flavored tobacco products, other than cigarettes. Flavored tobacco products can be sold in tobacco bars in the city, of which there are a limited number.
The smokeless tobacco maker sued in December.
The city law describes a "characterizing flavor" as a "distinguishable taste or aroma, other than the taste or aroma of tobacco, menthol, mint or wintergreen, imparted either prior to or during consumption of a tobacco product or component part thereof, including, but not limited to, tastes or aromas relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice."
The ordinance had been set to go into affect Feb. 25.
"The court correctly upheld this important new law," said New York City Corporation Counsel Michael A. Cardozo in a statement. "Mayor Bloomberg, the City Council and the Health Department have made huge strides in working to protect the health of New Yorkers, and we applaud Judge McMahon for her common- sense ruling."
A lawyer for the tobacco companies didn't immediately respond to a request for comment.
Reference: Judge Rejects Bid To Stop NYC Ban On Flavored Tobacco Products by Chad Bray (chad.bray@dowjones.com) Of DOW JONES NEWSWIRES, 3/26/2010.
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