CHICAGO --The Independents Gas & Service Stations Associations Inc. has filed a federal lawsuit against the City of Chicago seeking to overturn the city's ordinance that bans the sale of all flavored tobacco products, including menthol cigarettes, within 500 feet of any public, private or parochial elementary, middle or secondary school in the city.
The lawsuit claims that the Chicago ordinance is pre-empted by the Family Smoking Prevent and Tobacco Control Act, the law passed by Congress that granted the Food and Drug Administration (FDA) the authority to regulate tobacco products.
Specifically, the FDA law allows the agency to establish "product standards" for regulated tobacco products and prohibits a state or city from enacting a product standard that is different from, or in addition to, the federal product standard. Since the federal product standard allows menthol cigarettes to be sold, the Independents Gas & Service Stations Associations argument is that the Chicago ban on the sale of menthol cigarettes within 500 feet of a school is different from, and in addition to, the federal product standard.
The trade association also claims that the Chicago ordinance should be struck down because it is unconstitutionally vague. The main issue with vagueness is the uncertainty whether existing retail stores located within 500 feet of a school will be able to obtain a tobacco license. There is no "grandfather clause" that protects a current retail store in the event that a school opens at some time in the future within 500 feet. The lawsuit states that "[t]he result of a no 'grandfather' provision makes it impossible for a retail operator to know whether a tobacco license may be maintained continuously."
From an economic standpoint, the lawsuit also states that most gas stations operate on low profit margins and rely on the sale of other products, including flavored tobacco products, to make a profit and remain in business. The Chicago flavored tobacco ban will result in those retail stores within 500 feet of a school losing the ability to sell all flavored tobacco products while competing stores located outside the 500-foot prohibition zone being allowed to sell all flavored tobacco products. This places those retailers within the prohibition zone at a severe competitive disadvantage to those retailers located more than 500 feet from a school.
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