Hearing Set on Providence, R.I., Coupon Ban, Flavored Tobacco Sales Prohibition

Thomas A. Briant, NATO Executive Director

During the first six months of this year, NATO has monitored and/or responded to some 60 local tobacco restrictive ordinances across the country. One of the most important local issues is the pending court appeal of the two ordinances adopted by the City of Providence, R.I.

The U.S. Circuit Court of Appeals has scheduled an oral argument for Monday, July 29, 2013, in Boston regarding the appeal of a federal district court decision upholding the Providence, R.I. ordinances that ban retailers from redeeming tobacco product coupons, prohibit multi-pack tobacco product discount pricing, and not allow the sale of certain flavored tobacco products.

NATO, the Cigar Association of America, Lorillard Tobacco Co., R.J. Reynolds Tobacco Co., American Snuff Company, Philip Morris USA, Inc., U.S. Smokeless Tobacco Manufacturing Co., and John Middleton Co. are the plaintiffs and appellants in the litigation.

The first Providence ordinance bans the redemption of tobacco product coupons and prohibits discounts and promotional pricing on multi-pack tobacco products. There is a longstanding federal law called the Federal Cigarette Labeling and Advertising Act, which plainly reserves to the federal government, not a state or city government, the authority to regulate the advertising and promotion of cigarettes. Since federal courts have issued decisions that advertising and promotion include product coupons and product discounts, then the Federal Cigarette Labeling and Advertising Act should pre-empt the Providence coupon and price promotion ordinance.

The second Providence ordinance bans the sale of certain tobacco products that have a characterizing flavor other than menthol, mint or wintergreen. This ordinance attempts to go beyond the flavored cigarette ban passed by Congress as a part of the federal law that authorizes the FDA to regulate tobacco products. However, this federal law provides that Congress and the FDA shall establish national tobacco product standards, including federal standards regulating what flavored tobacco products may be sold in the United States. While the City of Providence attempts to claim that it is not regulating the composition of tobacco products, just the sale of flavored products within the city’s borders, the U.S. Supreme Court has rejected similar efforts by state and local governments to circumvent a federal law by banning the “sale” of the product, and not the substances in a product.

With the oral argument hearing scheduled for July 29, the U.S. Circuit Court of Appeals should issue a decision within three to six months after the hearing.