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Just Say No: 1st Cir. Upholds Providence's Anti-Tobacco Laws

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By Aditi Mukherji, JD on October 03, 2013 10:01 AM

The First Circuit Court of Appeals did D.A.R.E proud and unanimously upheld Providence, Rhode Island's anti-tobacco laws, reports the Providence Journal.

The pair of ordinances prohibits tobacco companies from selling flavored products and offering price discounts -- two Big Tobacco tactics that are notorious for luring children.

Providence Tobacco Ordinance

In 2009, a federal law went into effect under the Obama Administration that enabled the Food and Drug Administration to enforce a ban on candy, fruit and other flavored cigarettes that have a propensity to attract children. But the FDA's ban does not extend to other tobacco products.

In 2012, Mayor Angel Taveras and the Providence City Council passed two ordinances to fill the FDA's gap.

Targeting kid-friendly price discounts and promotional strategies, the first ordinance prohibits the use of coupons and multi-pack discounts (e.g., "buy-two-get-one-free") that make tobacco products cheaper and more appealing to kids.

A second ordinance cracks down on kid-friendly flavors by banning the sale of flavored tobacco products, including cigars, smokeless tobacco (like snuff and chewing tobacco), and other non-cigarette tobacco products, except in certain adult facilities like smoke bars.

Not surprisingly, a slew of tobacco companies and organizations -- including the National Association of Tobacco Outlets, Philip Morris, R.J. Reynolds, Lorillard and the Cigar Association of America -- filed a lawsuit, claiming that the ordinances violated their free speech rights under the First Amendment and were preempted by federal and state law.

The Rhode Island Department of Health, the Tobacco Control Legal Consortium and more than 20 local and national community-based and public health organizations filed amicus briefs in support of the city's anti-tobacco ordinances, according to Providence Business News.

First Circuit Ruling

A three-judge panel of the First Circuit Court of Appeals unanimously affirmed a U.S. District Court ruling from December 2012 that upheld the Providence ordinances.

The panel held that the restrictions are reasonable regulations that advance the city's legitimate goal of reducing smoking and other tobacco use, especially among kids.

The panel held the price ordinance is a regulation of pricing and therefore falls outside the ambit of the First Amendment. Regulation on multi-pack discounts and coupons are not preempted by the Federal Cigarette Labeling and Advertising Act, the panel ruled.

Citing support from the Second Circuit Court of Appeals, the panel held the flavor ordinance was an appropriate sales regulation that was not preempted by the Family Smoking Prevention and Tobacco Control Act.

Finally, neither ordinance, according to the panel, conflicts with state law because Rhode Island has not occupied the field of tobacco regulation.

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