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HomeMy WebLinkAbout01-25-21 Public Comment - T. Briant, NATO - Potential Flavored Tobacco Product BanFrom: Thomas Briant To: Agenda Subject: NATO: Letter Regarding Potential Flavored Tobacco Product Ban Date: Monday, January 25, 2021 1:03:22 PM Attachments: Letter to Bozeman City Commission.pdf NATO DATE: January 25, 2021 TO: Mayor Cyndy Andrus and City Commissioners FROM: Thomas Briant, Executive Director and Legal Counsel The National Association of Tobacco Outlets (NATO) represents retail stores located in Bozeman that sell tobacco products and electronic cigarettes/nicotine vapor products. Based on recent news in the media, I am sending the attached letter which explains why a local government in Montana is not allowed to adopt a local law that is more restrictive than the state law regarding the sale tobacco products and electronic cigarettes/nicotine vapor products. We urge you not to consider an ordinance banning flavored tobacco products and flavored electronic cigarettes/nicotine vapor products. Thank you for your consideration. Contact Information: Thomas Briant NATO Executive Director 17595 Kenwood Trail Minneapolis, MN 55044 952-683-9270 info@natocentral.org 17595 Kenwood Trail, Minneapolis, MN 55044 1-866-869-8888 www.natocentral.org January 25, 2021 Mayor Cyndy Andrus Bozeman City Commissioners 121 North Rouse Avenue Bozeman, MT 59715 RE: Pre-Emption of a Local Ban on the Sale of Flavored Tobacco/Vapor Products Dear Mayor Andrus and City Commissioners: As the Executive Director and Legal Counsel for the National Association of Tobacco Outlets, Inc., I am submitting this letter on behalf of the association and its member retail stores located in the City of Bozeman. This letter and the legal analysis below responds to recent media reports that the Bozeman City Commission may consider banning the sale of flavored tobacco products and/or flavored electronic nicotine/vapor products. Montana State Law Pre-Empts More Restrictive Local Tobacco Regulations The Montana Youth Access to Tobacco Products Control Act as codified in Montana Code Annotated Sections 16-11-301 to 16-11-311 regulates the licensing and sale of tobacco products, alternative nicotine products, and electronic cigarette/vapor products. In Section 16-11-302, tobacco products are defined as including cigarettes, cigars, snuff, smoking tobacco, and smokeless tobacco. Then, under Section 16-11-303, a retailer is required to obtain a license from the Montana Department of Revenue to sell such tobacco products, including alternative nicotine products, electronic cigarettes, and vapor products. In Section 16-11-311, the Montana legislature limited a local government to adopting ordinances regarding tobacco products, alternative nicotine products, electronic cigarettes, and nicotine vapor products that are no more restrictive than the provisions of the Montana Youth Access to Tobacco Products Control Act. Since this Montana state law specifically allows a retailer to obtain a license to sell cigarettes, cigars, snuff, smoking tobacco, smokeless tobacco, alternative nicotine products, electronic cigarettes, and nicotine vapor products, then a local government is pre-empted from adopting an ordinance that bans the sale of such products because a prohibition would be more restrictive than the state law. 17595 Kenwood Trail, Minneapolis, MN 55044 1-866-869-8888 www.natocentral.org That is, there is no limiting language under the Youth Access to Tobacco Products Control Act that in any way restricts or prohibits a retailer from selling any kind of tobacco product, alternative nicotine product, or vapor product, whether flavored or unflavored. In the absence of any restriction or exclusion, the state statute would allow a licensed retailer to sell any kind of tobacco product, alternative nicotine product, electronic cigarette, or nicotine vapor product while at the same time preventing a local government from enacting a regulation restricting or banning the sale of the flavored versions of these products because doing so would be more stringent than the state law. Federal Law Pre-empts Local Ordinances that Would Ban Flavors in Tobacco Products In addition to the Montana state pre-emption, the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), the law that Congress passed authorizing the U.S. Food and Drug Administration (FDA) to regulate tobacco products, would expressly and impliedly pre-empt a local government from banning flavors in tobacco products. The Tobacco Control Act expressly preempts a ban on flavored tobacco products and flavored electronic cigarette products. Under the Tobacco Control Act, Congress authorized the FDA to adopt “product standards” for tobacco products (21 United States Code, Section 387). A “product standard” is the power to eliminate or restrict the use of an additive or ingredient in a tobacco product. Section 387 of the Tobacco Control Act goes on to prohibit state and local governments from adopting product standards that are different from, or in addition to, the federal government’s product standards. A ban on flavored tobacco products is a product standard because it regulates the ingredients and additives in, and the properties of, tobacco products. For this reason, the Tobacco Control Act expressly preempts a local flavor ban ordinance. In addition, federal law also impliedly preempts a local ordinance because any ban stands as an obstacle to the purposes of federal law. Congress authorized the FDA to promulgate tobacco product standards that, in appropriate circumstances, can establish uniform, national standards for the manufacture of tobacco products and the ingredients used in such products. Congress and FDA have made the judgment that certain tobacco products should remain available to adult users of tobacco products. A potential ban of flavored products conflicts with these federal goals and must give way to the federal law. In conclusion, the City of Bozeman is expressly pre-empted from adopting an ordinance banning the sale of flavored tobacco products and flavored electronic nicotine products by Montana Code Annotated Section 16-11-311 and the Federal Tobacco Control Act, while also being impliedly pre-empted by this federal law. For this reason, I urge the Bozeman City Commission not to proceed with any further consideration of ban on the sale of flavored tobacco products or flavored electronic cigarette/nicotine vapor products. Thank you for your consideration of these comments. Sincerely, Thomas Briant NATO Executive Director and Legal Counsel