We recently received a copy of the following letter that NATO (National Association of Tobacco Outlets) has sent to New York City Council members about a proposed ban on flavored tobaccos. This is just another example of government trying to stamp out our fully-legal passion for the leaf under the guise of it being “for the children.” Don’t get me started on this justification… Anyway, please read this and pass along to any New Yorkers you know and have them speak up and stop the insanity!
July 24, 2009
Proposed Flavored Cigarette Ban Superceded by New FDA Law;
Extrapolations of Studies and State Laws Do Not Support Flavored Tobacco Ban
New York City Council Members
New York City Council
City Hall, Room 5
New York, NY 10007
Dear Council Member:
The National Association of Tobacco Outlets (“NATO”) strongly opposes Proposed Introduction No. 433A that seeks to ban the sale of flavored cigarettes, flavored cigars, flavored chewing tobacco and other flavored tobacco products. While you may already have an opinion about tobacco products, I urge you to read this letter to fully understand how studies and other state statutes have been extrapolated in an illogical manner in a vain attempt to support adoption of this ban on flavored tobacco products.
As a national trade association representing tobacco retailers throughout the country, NATO’s opposition to the proposed regulations is based on the recently enacted federal law banning the sale of flavored cigarettes and the overreaching extrapolations in a Report of the Human Services Division issued on May 21, 2009 by the Committee on Health. As a note of caution, please understand that if the New York City Council proceeds next week to approve Proposed Introduction No. 433-A, the objections cited below will set the stage for a justifiable legal challenge to the flavored tobacco product sales ban.
New FDA Regulations Banning Flavored Cigarettes Supersede New York City Proposal
On June 22, 2009, a bill was signed into law by President Obama authorizing the U.S. Food and Drug Administration to regulate the manufacture, distribution and sale of tobacco products. Specifically, the new law bans the sale of flavored cigarettes nationwide (except menthol cigarettes) as of September 22, 2009 (see Section 907(a)(1) of the Family Smoking Prevention and Tobacco Control Act enacted on June 22, 2009).
That is, the proposed ban on the sale of flavored cigarettes in the City of New York is already moot since the federal law will supercede any city or state regulation. In fact, the federal ban on flavored cigarettes is more stringent than the proposed ban for New York City making the need for a city regulation unnecessary.
Lack of Rational Basis for Flavored Ban on Other Tobacco Products May Compel Litigation
The recent Report of the Human Services Division issued by the Committee on Health purports to support passage of Proposed Introduction 433-A (copies of the applicable pages of the report accompany this letter). However, the report fails to establish a rational basis for prohibiting the sale of flavored cigars and other flavored tobacco products. In fact, the report undermines the truth by inaccurately citing studies and other state statutes to assert an unfounded claim that banning flavored cigars and other flavored tobacco products is necessary to prevent or reduce tobacco use by underage youth.
The report first cites an American Lung Association study from 2006 which claims that “teenagers ages 17 to 19 were more than three times more likely to smoke flavored cigarettes than smokers over the age of 25.” Then, in the next sentence, the report extrapolates the findings of this study to assert that “Thus, flavored tobacco is a serious public health issue because of its appeal to youth.” To claim that a study regarding flavored cigarette smoking rates results in all flavored tobacco being a serious health issue is an illogical and unsubstantiated extrapolation of the study’s findings and cannot support the underlying intent of the proposed regulation.
Next, the report refers to an investigation by Attorneys General from forty states that the marketing of flavored cigarettes may have been contrary to the 1998 Master Settlement Agreement. Again, this investigation dealt with flavored cigarettes and does not lend any credence to the proposed New York City regulation to ban the sale of flavored cigars and other flavored tobacco products.
Regarding state laws, the report notes that Maine restricts the sale of flavored cigarettes and flavored cigars. What the report does not indicate is that the Maine statute allows the state attorney general to approve the continued sale of flavored cigarettes and flavored cigars if the products were on the market prior to January 1, 1985 and the flavors are not “likely to appeal to youth” (Maine Statutes, Chapter 262-A[5]). That is, Maine’s law should not be relied upon as a precedent to adopt a complete ban on flavored tobacco products.
Finally, the report states that “New Jersey bans the sale of certain flavored tobacco products with a characterizing flavor….” Here again, the author of the report confuses the issue by the use of the general phrase “certain flavored tobacco products” when in fact the New Jersey law only bans flavored cigarettes and components of a cigarette. (New Jersey Statutes, Chapter 91, C.2A:170-51.6).
In short, the report issued by the Committee on Health cannot and should not be relied upon from a legal or factual standpoint to support the passage of Proposed Introduction No. 433-A. All of the studies cited in the report are from anti-tobacco organizations or government health agencies that by any definition are not impartial or unbiased. To exacerbate this lack of scientific impartiality, the report takes far too many liberties with the factual basis of these studies and state laws to have any legal credibility. This lack of integrity found within the report will lay the groundwork for possible legal action to enjoin the administration and enforcement of the proposed regulation if it is passed into law.
For the New York City Council to adopt Proposed Introduction No. 433-A based in whole or in part on the extrapolations and inaccuracies in the Committee on Health report is an example of inappropriate public policymaking. While NATO and its members have always supported the goal of preventing underage youth tobacco use, the extraneous nature of the Committee on Health report calls into serious question whether the regulation is even necessary.
With the new FDA tobacco regulations banning flavored cigarettes across the country and the lack of credible empirical support for a ban on all other flavored tobacco products, I urge you to not proceed with a final vote on Proposed Introduction No. 433-A.
Sincerely yours,
Thomas A. Briant
Thomas A. Briant
NATO Executive Director and Legal Counsel
Copy To: Stephen Louis (New York City Council Legal Counsel)
Michael Cardozo (Corporate Counsel)