William H. Sorrell, Attorney General of Vermont: Primer on Tobacco for State AGs (January, 2011)
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Family Smoking Prevention and Tobacco Control Act (FSPTCA)
Public Anti-Smoking Initiatives
Family Smoking Prevention and Tobacco Control Act
Pub. L. No. 111-31, § 101, 123 Stat. 1776
What remains the same under FSPTCA:
- Law has no effect on state authority to restrict sale, distribution, or possession of tobacco products
- States remain free to:
- Raise tobacco taxes
- Enact smoke free laws in workplaces and public places
- Sales restrictions
- Increase funding for tobacco prevention programs
- Enhance tobacco cessation services
- Implement Counter-marketing campaigns
- Implement anti-smuggling and tax evasion measures
- Mandate minimum pack sizes for all tobacco products, to discourage initiation and usage among youth
- Prohibit the sale of non-tobacco products containing nicotine that have not been approved by FDA
- Short of prohibiting the sale of non-tobacco products containing nicotine, taxing or restricting such products.
- Implement fire-safe cigarette laws
- States can take regulatory action to prevent any new products from being marketed in such a way as to increase initiation among youth or impede cessation
What is new under FSPTCA:
- States can:
- Expand the law’s requirement that retail ads for cigarettes and smokeless tobacco products be limited to black and white text to cigar and other tobacco product advertisements (Note: This was challenged in Commonwealth Brands, Inc. v. U.S., U.S. District Court, Western District of Kentucky, Bowling Green Division where it was held that limiting advertisements to only black text on a white background was too broad an intrusion on commercial free speech. The case is likely to be appealed.)
- Restrict or eliminate the display of so-called "power walls" of cigarette packages at retail outlets, which will be the only presentation of cigarette brand logos, labels and colors permitted in retail outlets under the new law.
- Limit the number and size of tobacco ads at retail outlets.
- Require that tobacco products and advertisement be kept a minimum distance from cash registers in order to reduce impulse purchases by smokers trying to quit.
- States cannot:
- Regulate the Content of Cigarette Advertisements or Prescribe Health Warning Labels on Tobacco Product Packages
- Regulate the Content of Tobacco Products
- Federal Government preempts state and local governments from separately licensing manufactures and suppliers specifically and exclusively for tobacco product regulation purposes.
- States may ban any or all categories of tobacco products as a function of states’ authority over sales and distribution.
- States may require licenses and permits from manufacturers or other tobacco entities for any other purpose.
- The law specifically allows state and local governments to implement fire-safe cigarette laws and permits states to impose additional reporting requirements, including ingredient disclosures, on tobacco product manufacturers if that information has not already been obtained and shared by FDA
U.S. Supreme Court Justice Antonin Scalia has granted a stay
on a $270 million settlement against major tobacco companies brought by the state of Louisiana. Scalia noted that it was "significantly possible" that the Supreme Court would eventually overturn the decision and that he had concerns of constitutional issues over potential abuses of state court class-action lawsuits.
Tobacco product manufacturers brought a challenge to Massachusetts’s outdoor and point-of-sale cigarette adverting regulations. The district court determined the regulations were valid. The United States Court of Appeals for the First Circuit affirmed in part and reversed in part. Petition for writ of certiorari was granted. The issue was whether the regulations were preempted by the Federal Cigarette Labeling and Advertising Act (FCLAA), 15 U.S.C.S. § 1331 et seq. The Court held that the FCLAA preemption provisions did not allow a distinction between a concern about cigarette advertising’s affect on minors and the general concern of smoking and health in cigarette advertising. Further, a distinction between state regulation of the location as opposed to content of cigarette advertising had no foundation in the text of the pre-emption provision. As to the First Amendment issues, the court found that the attorney general failed to show that the outdoor advertising regulations for smokeless tobacco and cigars were not more extensive than necessary to advance the state's interest in preventing underage tobacco use. Also, the point-of-sale advertising regulations failed both the third and fourth steps of the Central Hudson analysis. However, the regulation barring self-service displays for tobacco withstood First Amendment scrutiny, as those regulations were narrowly tailored to prevent access to tobacco products by minors.
Phillip Morris sought an emergency temporary restraining order to prevent San Francisco Ordinance 194-08 from going into effect. Ordinance 194-08 prohibited the sale of tobacco products in stores that had pharmacies, except for general grocery stores and big box stores. The issue was whether there was sufficient likelihood that Phillip Morris would succeed on the merits of its First Amendment and federal preemption claims to support the grant of a preliminary injunction. The court found that Phillip Morris’s preemption claim was not likely to succeed on the merits because the Ordinance only regulated sales and the FCLAA did not regulate tobacco sales. The court also found the First Amendment claim was not likely to succeed because the Ordinance only prohibited conduct in the form of sales, not speech; therefore the court denied the preliminary injunction
Walgreens brought an Equal Protection challenge to San Francisco Ordinance 194-08 that banned the sale of tobacco products in retail establishments that contained a pharmacy, but exempted supermarkets and “big box” stores. The court found that the complaint adequately stated causes of action for a violation of the equal protection provisions of the federal and state constitutions.
This was a direct challenge to the 2009 Law’s restrictions on advertising. The court found as unconstitutional, the 2009 Law’s ban on color and graphics in labels and advertising and the ban on claims implying that a tobacco product is safer because of its regulation by FDA. The court upheld other advertising and marketing bans within the law.
This was an unsuccessful challenge to a flavored smokeless tobacco ban. Plaintiffs argued that the Family Smoking Prevention and Tobacco Control Act (FSPTCA) preempted a New York City Ordinance that made it "unlawful for any person to sell or offer for sale any flavored tobacco product except in a tobacco bar," and that the law violated the Commerce Clause, Due Process Clause of the 14th
Amendment. See N.Y. City Admin. Code. §§ 17-713-718
. The court held that due to the plain language of the FSPTCA, there was no conflict of law and therefore the ban was not preempted.
Challenge to New York City Health Code Article 181.19 which required that “any person in the business of selling tobacco products face-to-face to consumers in New York City” post graphic health warning signs “at each location where tobacco products are displayed” or “on or within 3 inches of each cash register”. The issues argued were whether the ordinance was preempted by federal regulation, whether it was valid under the First Amendment, and whether the Vity Board of Health exceeded its authority under New York’s separation of powers doctrine. The court held that Article 181.19 was preempted by the preemption clause of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1334. The City is appealing the decision.
Oregon’s Attorney General reached a settlement with Smoke Everywhere, an e-cigarette manufacturer, and was the first to successfully ban the sale and distribution of e-cigarettes in the state.
California’s Attorney General reached a settlement with Sottera Inc., one of the largest e-cigarette distributors, and succeeded in restricting Sottera from marketing or selling e-cigarettes to minors.
The distributors successfully enjoined the FDA from regulating electronic cigarettes as a drug-device combination and from denying entry of those products into the United States. The case raised for the first time the issue of whether FDA had the authority under the Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C.S. § 301 et seq., to regulate electronic cigarettes as a drug-device combination. The court found that there was no basis for FDA to treat electronic cigarettes as a drug-device combination when all they purported to do was offer consumers the same recreational effects as a regular cigarette.
This was an appeal from Smoking Everywhere, Inc. v. FDA in whichSottera Inc., an e-cigarette distributor, successfully enjoined the FDA from regulating e-cigarettes as a drug-device under the Federal Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 351 et seq., instead of regulating e-cigarettes as tobacco products under the Family Smoking Prevention and Tobacco Control Act of 2009 (the "Tobacco Act"), Pub. L. 111-31, 123 Stat. 1776.
Public Anti-Smoking Initiatives
The Center for Disease Control and Prevention used funding from the American Recovery and Reinvestment Act for a Prevention and Wellness Initiative that includes the Communities Putting Prevention to Work program, which targets communities at that county and city level.
Jefferson County, AL
Los Angeles County and Santa Clara County, CA
District of Columbia
DeKalb County, GA
Linn County and Ringgold County, IA
St. Louis, MO
South Nevada Health District, NV
New York City, NY
Cherokee Nation, OK
Horry County and Florence County, SC
Austin/Travis County, TX
King County, WA
Great Lakes Interior Tribal, WI
The Prevention and Wellness Initiative also included 3 state-level grants. All states received funds from a general award for efforts in nutrition, physical activity, and tobacco control. Another state-level award went to all states for Tobacco Cessation through Media and Quitlines.
The third award at the state level was a competitive award to implement one or more high-impact policies or strategies targeting either obesity or tobacco. Of the 13 states that received the third award, 5 were initiatives towards tobacco control:
- Delaware: To educate leaders and decision-makers about the benefits of increasing the price of other tobacco products such as cigars and smokeless tobacco to equal the price of cigarettes.
- Massachusetts: Increae restrictions on retail and outdoor advertising by including cigars in an outdoor adertising ban within 1000ft of schools, parks, and playgrounds; including all tobacco products in advertising restrictions; and requiring a health manager for every tobacco message in a retail store
- Michigan: Reduce exposure to second-hand smoke, including partnering with Native Americans
- Mississippi: Engage in a 2-year campaign that results in passage and implementation of a comprehensive, statewide smoke-free air policy.
- Oregon: Integrate tobacco control into other health department programs and include a counter-advertising campaign targeted to vulnerable Oregonians; support a policy proposal to increase tobacco prices.
CDC’s Office on Smoking and Health (OSH) created the National Tobacco Control Program (NTCP) in 1999 to encourage coordinated, national efforts to reduce tobacco-related diseases and deaths. The program provides funding and technical support to state and territorial health departments.
NTCP-funded programs are working to achieve the objectives outlined in OSH’s Best Practices for Comprehensive Tobacco Control Programs.
CDC’s Healthy Communities Program is engaging communities and mobilizing national networks to focus on chronic disease prevention. Communities are working to change the places and organizations that touch people’s lives every day—schools, work sites, health care sites, and other community settings—to turn the tide on the national epidemic of chronic diseases.
Synar Amendment Enforcement
In July 1992, Congress enacted the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act (P.L. 102-321), which includes the Synar Amendment (section 1926), aimed at decreasing youth access to tobacco. This amendment requires States to enact and enforce laws prohibiting the sale or distribution of tobacco products to individuals under 18 years old. To determine compliance with the legislation, the amendment requires each State and U.S. jurisdiction to conduct annual, random, unannounced inspections of retail tobacco outlets and to report the findings to the Secretary of the U.S. Department of Health and Human Services (DHHS). States that do not comply with the requirements set forth in the amendment are subject to a penalty of 40 percent of their Federal Substance Abuse Prevention and Treatment (SAPT) Block Grant funding.
The Substance Abuse and Mental Health Services Administration (SAMHSA) was charged with implementing the Synar Amendment. In January 1996, SAMHSA issued the Synar Regulation to provide guidance to the States. The regulation stipulates that to comply with the Synar Amendment, each State must have in effect a law prohibiting any manufacturer, retailer, or distributor of tobacco products from selling or distributing such products to any individual under age 18.
States measure their progress in reducing youth access to tobacco via annual, random, unannounced inspections (also known as the Synar survey). SAMHSA, through its Center for Substance Abuse Prevention (CSAP), Division of State Programs, annually reviews each State’s Synar survey and results, and provides technical assistance to help States comply with the requirements.
State Legislation on New Tobacco Products