U.S. Smokeless Tobacco Mfg. Co. v. City of N.Y.
| Decision Date | 26 February 2013 |
| Docket Number | Docket No. 11–5167–cv. |
| Citation | 708 F.3d 428 |
| Parties | U.S. SMOKELESS TOBACCO MANUFACTURING COMPANY LLC, U.S. Smokeless Tobacco Brands Inc., Plaintiffs–Appellants, v. CITY OF NEW YORK, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
OPINION TEXT STARTS HERE
Kenneth J. Parsigian (Abigail K. Hemani, on the brief), Goodwin Procter LLP, Boston, MA, for Plaintiffs–Appellants.
Michael Jordan Pastor, Assistant Corporate Counsel (Michelle Goldberg–Cahn, Sherrill Kurland, Larry A. Sonnenshein, Sharyn Michele Rootenberg, on the brief), for Michael A. Cardozo, Corporation Counsel, New York, NY, for Defendant–Appellee.
Before: RAGGI, NEWMAN, LYNCH, Circuit Judges.
Plaintiffs U.S. Smokeless Tobacco Manufacturing Company LLC and U.S. Smokeless Tobacco Brands Inc. (collectively, “plaintiffs”) manufacture and distribute smokeless tobacco products, including flavored smokeless tobacco. On December 28, 2009, they filed suit in the United States District Court for the Southern District of New York (Colleen McMahon, Judge ), challenging the validity of a New York City ordinance governing the sale of flavored tobacco products. Plaintiffs alleged that the ordinance, New York City Administrative Code § 17–715, is preempted by the Family Smoking Prevention and Tobacco Control Act (“FSPTCA” or “Act”), Pub.L. No. 111–31, 123 Stat. 1776 (2009), codified at21 U.S.C. § 387 et seq., and sought an injunction against its enforcement. They now appeal an award of summary judgment entered on November 15, 2011, in favor of defendant, the City of New York (“the City”). Because we conclude that the ordinance is not preempted by the FSPTCA, we affirm the judgment of the district court.
Congress enacted the FSPTCA in 2009 to grant the Food and Drug Administration (“FDA”) authority to regulate tobacco products under the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq.See21 U.S.C. § 387a(a). Under the Act, the FDA's authority extends to the regulation of “all cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco and to any other tobacco products that the [FDA] by regulation deems to be subject to [the Act].” Id. § 387a(b).
Of particular relevance to the present action is § 907 of the FSPTCA. Entitled “Tobacco Product Standards,” it sets out a “special rule for cigarettes,” which provides that “a cigarette or any of its component parts ... shall not contain, as a constituent ... or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice.” Id. § 387g(a)(1)(A). Section 907 further grants the FDA authority to revise the special rule for cigarettes, id. § 387g(a)(2), and to adopt additional product standards if “appropriate for the protection of the public health,” id. § 387g(a)(3)(A). Specifically, the FDA is authorized to establish standards “respecting the construction, components, ingredients, additives, constituents, including smoke constituents, and properties of ... tobacco product[s],” id. § 387g(a)(4)(B)(i), and to adopt provisions restricting their sale and distribution, id. § 387g(a)(4)(B)(v). The FDA may not, however, “ban [ ] all cigarettes, all smokeless tobacco products, all little cigars, all cigars other than little cigars, all pipe tobacco, or all roll-your-own tobacco products,” or “requir[e] the reduction of nicotine yields of a tobacco product to zero.” Id. § 387g(d)(3).
Before imposing “restrictions on the sale and distribution of a tobacco product,” the FDA must determine “that such regulation would be appropriate for the protection of the public health.” Id. § 387f(d)(1). In deciding whether a regulation is appropriate, the FDA must consider “the risks and benefits to the population as a whole, including users and nonusers of the tobacco product.” Id. Specifically, the FDA must take into account “the increased or decreased likelihood that existing users of tobacco products will stop using such products,” as well as “the increased or decreased likelihood that those who do not use tobacco products will start using such products.” Id. § 387f(d)(1)(A), (B). Finally, the FDA may not “prohibit the sale of any tobacco product in face-to-face transactions by a specific category of retail outlets; or ... establish a minimum age of sale of tobacco products to any person older than 18 years of age.” Id. § 387f(d)(3)(A).
Also central to this appeal is the Act's preemption provision, set out in § 916. The section is composed of three parts. First, a preservation clause states, in relevant part:
Except as provided in [the preemption clause], nothing in this subchapter ... shall be construed to limit the authority of ... a State or political subdivision of a State ... to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age....
Id.§ 387p(a)(1). A preemption clause then establishes an exception to this broad preservation of states' authority, providing:
No State or political subdivision of a State may establish or continue in effect with respect to a tobacco product any requirement which is different from, or in addition to, any requirement under the provisions of this subchapter relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.
Id.§ 387p(a)(2)(A). Finally, a saving clause carves out an exception to the exception, stipulating that the preemption clause “does not apply to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age.” Id.§ 387p(a)(2)(B).
New York City Administrative Code § 17–715 prohibits the sale in New York City of “any flavored tobacco product except in a tobacco bar.” A flavored tobacco product is any item, not including cigarettes, that contains both tobacco and “a constituent that imparts a characterizing flavor.” Id. § 17–713(e). A characterizing flavor is “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.”Id. § 17–713(b). A tobacco product is not deemed to have a characterizing flavor “solely because of the use of additives or flavorings or the provision of ingredient information,” id., but any “public statement or claim made or disseminated by the manufacturer of a tobacco product ... that such tobacco product has or produces a characterizing flavor shall constitute presumptive evidence that the tobacco product is a flavored tobacco product,” id. § 17–713(e).
Although the City's ordinance applies to all flavored non-cigarette tobacco products, there is no indication in the record that flavored cigars or non-cigarette products other than smokeless tobacco constitute a commercially significant product category, and in any event plaintiffs do not seek to challenge the ordinance insofar as it relates to products other than the flavored smokeless tobacco products they manufacture and distribute. Smokeless tobacco products are, as the term suggests, tobacco products used by means other than smoking. They include chewing tobacco, dip, and snuff, and, according to plaintiffs, they are typically consumed by adults, primarily in the South.
Plaintiffs represent, and the City does not contest, that there are only eight tobacco bars in New York City, all of which are in Manhattan and none of which sells flavored smokeless tobacco. Accordingly, we assume for purposes of this decision that such products are unavailable for purchase anywhere in the city.
“We review de novo a district court's application of preemption principles.” N.Y. SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 103 (2d Cir.2010). “To determine whether a state or local law is preempted by federal law, we look to Congress's intent.” 23–34 94th St. Grocery Corp. v. N.Y. City Bd. of Health, 685 F.3d 174, 180 (2d Cir.2012). Where the federal statute contains an express preemption provision, we begin with the wording of that provision, CSX Transp. Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), but we must also consider the statute as a whole to determine whether the local ordinance actually conflicts with the overall federal regulatory scheme, Altria Grp., Inc. v. Good, 555 U.S. 70, 76–77, 129 S.Ct. 538, 172 L.Ed.2d 398 (2008). Where, as here, Congress has specifically addressed the preemption issue, our task is primarily one of interpreting what Congress has said on the subject. See Ass'n of Int'l. Auto. Mfrs., Inc. v. Abrams, 84 F.3d 602, 607 (2d Cir.1996) ().
Preemption analysis is guided by the presumption that a federal statute does not displace the local law “unless Congress has made such an intention clear and manifest.” Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449, 125 S.Ct. 1788, 161 L.Ed.2d 687 (2005) (internal quotation marks omitted). This assumption is particularly strong where, as here, a state or locality seeks to exercise its police powers to protect the health and safety of its citizens. Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); see N.Y. State Restaurant Ass'n v. N.Y. City Bd. of Health, 556 F.3d 114,...
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