Tobacco Companies, Trade Groups Fight Rhode Island Measures

PROVIDENCE, R.I. -- Two trade associations and seven tobacco companies are teaming up to fight tobacco ordinances passed recently by lawmakers in Providence, R.I. Yesterday, they took the battle to the legal arena.

The National Association of Tobacco Outlets Inc. (NATO) and the Cigar Association of America Inc. (CAA), along with Lorillard Tobacco Co., R.J. Reynolds Tobacco Co., American Snuff Co., Philip Morris USA Inc., U.S. Smokeless Tobacco Manufacturing Co. LLC, U.S. Smokeless Tobacco Brands Inc. and John Middleton Co., filed a federal lawsuit in the U.S. Federal District Court in Rhode Island seeking a temporary restraining order, and preliminary and permanent injunctions against the enforcement of two tobacco-related ordinances adopted on Jan. 5 by the Providence City Council.

The first measure highlighted in the suit bans adult consumers from redeeming tobacco product coupons and also prohibits retailers from offering certain promotionally priced tobacco products, such as "buy-one, get-one free" offers. The second measure bans the sale of virtually all flavored cigars, smokeless tobacco and pipe tobacco products in the city, according to NATO. Both of these ordinances are scheduled to take effect March 1.

"The ordinances raise serious federal and state constitutional questions while also being pre-empted by federal and state laws," stated NATO President Andrew Kerstein.

The lawsuit seeks a judgment declaring, among other things, that:

• The ban on coupons and promotionally priced tobacco products, as well as the prohibition on the sale of flavored tobacco products, are an unconstitutional violation of both the U.S. Constitution and the Rhode Island Constitution;
• The ordinances are pre-empted by federal laws regulating tobacco products; and
• The ordinances are void because the city failed to give the mandatory 48-hour public notice of the meeting at which the ordinances were adopted.

Specifically, the legal action contends that the anti-promotion ordinance limits the ability of retailers and manufacturers to communicate tobacco product prices to adult consumers and is pre-empted by federal law because the ordinance attempts to regulate the advertising and promotion of cigarettes.

According to NATO, the ordinance violates the Rhode Island Constitution because it improperly attempts to regulate tobacco retailers, an authority which is reserved exclusively for the state. In addition, the city was required to give at least a 48-hour public notice of the upcoming adoption of the ordinance, but provided only 29 hours notice. This failure to give the proper public notice invalidates the ordinance, the association stated.

The lawsuit also contends that the second ordinance, relating to flavored tobacco products, is unconstitutional because it severely limits how retailers and manufacturers may describe the taste or aroma of tobacco products to consumers. This ordinance is also pre-empted by federal law. In addition, as with the first ordinance, this ordinance violates the Rhode Island Constitution by adopting licensing requirements that are the exclusive province of the state. Just like the first ordinance, the city lawmakers failed to provide the minimum 48-hour prior public notice, invalidating the ordinance, according to NATO.