Initial Injunction Against NYC Flavored Ban Denied

The U.S. Federal District Court denied a request by U.S. Smokeless Tobacco Manufacturing Company and U.S. Smokeless Tobacco Brands for a preliminary injunction against a recently enacted New York City ordinance that bans the sale of virtually all flavored tobacco products except in “tobacco bars,” the National Association of Tobacco Outlets (NATO) reported.

The USST companies filed a lawsuit against New York City claiming that the city ordinance was pre-empted by the federal FDA regulatory law known as the Family Smoking Prevention and Tobacco Control Act, violated the Commerce Clause of the U.S. Constitution, and violated the Due Process Clause.  Although the preliminary injunction was denied, the motion for the injunction was only brought on the pre-emption claim.  The lawsuit is still pending in Federal District Court.

“We continue to believe that the City lacks the authority to adopt this ordinance because it imposes product standards that are different from or in addition to those imposed by the FSPTCA,” said a USST spokesperson in a statement.  “The City should allow the FDA to consider these issues in due course in the context of a regulatory process that allows for public comment and agency consideration of scientific evidence.  It is important to note that today’s decision is not final ruling on the merits of our claim. We will continue our challenge to the ordinance in the courts.”

Also in New York, the State Senate passed an emergency spending resolution on Monday to keep the government operating and rejected the $1.00 per pack cigarette tax increase.  Also, the New York State Appellate Division Court restored a restraining order to prevent the state from collecting recently enacted tobacco retailer registration fees raised from $100 per year to as much as $1,000 per year and as high as $5,000 per year, NATO reported.







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