U.S. Smokeless Tobacco seeks to enjoin the City of New York from imposing tobacco product standards..

January 7, 2009 - Joseph H. McKinley Jr., a federal district-court judge in Bowling Green, Kentucky ruled on Reynolds, the second-largest U.S. cigarette maker, and Lorillard Tobacco Co., the third-biggest, sued in August 2009 to block the marketing restrictions of tobacco regulation law.

Meanwhile, a second 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. The ordinance bans all "flavored tobacco products," which are defined as all tobacco products, other than cigarettes, that contain a constituent or additive that imparts a "characterizing flavor," other than tobacco, menthol, mint or wintergreen. (New York City - ban on flavored tobacco products becomes law..)

Ironically, the lawsuit cites the Family Smoking Prevention & Tobacco Control Act in USST's defense. "FDA is the only agency with the right combination of scientific expertise, regulatory experience and public-health mission to oversee these [tobacco] products effectively," the lawsuit states, quoting the Act.

Thomas Briant, executive director of the National Association of Tobacco Outlets (NATO), was not surprised by the lawsuit, and in fact had warned New York City council members of the possibility in a July letter. "We told them they were going to get sued," he said, reiterating that the proposed ban was superceded by the new FDA regulations. "The city-elected officials simply do not understand that they have overstepped their authority by adopting such a broad and sweeping ban on flavored tobacco products. Moreover, the ban does violate the commerce clause of the U.S. constitution, which grants only Congress the powers to make laws that impact interstate commerce."

Briant also outlined another concern that makes the impending ruling so important. "This could be utilized or seen as a stepping stone by anti-tobacco advocates in other parts of the country to adopt a similar flavored-tobacco prohibition law," he says. "I have seen new anti-tobacco strategies adopted on the East or West Coast and then move inward covering other states, so all retailers across the country should be very concerned about this New York City ban."

Reference: Tobacco Trials Two court challenges could reshape tobacco sales and promotion by Linda Abu-Shalback Zid, Convenience Store / Petroleum (CSP) Daily News, 1/7/2010.