National Association of Tobacco Outlets: State, federal laws prohibit Missoula tobacco ban

The following letter was sent to the Missoula City Council and Missoula Mayor John Engen:

Dear Mayor Engen and City Council Members:

As the Executive Director and Legal Counsel for the National Association of Tobacco Outlets, Inc., I am submitting these legal comments on behalf of the association and its member retail stores located in the City of Missoula. These comments respond to the proposed ordinance being considered by the Missoula City Council that would ban the sale of flavored tobacco 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 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, 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, and 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, and vapor products, then a local government is pre-empted from adopting an ordinance that bans the sale of flavored tobacco products, flavored alternative nicotine products, and flavored vapor products because such prohibitions are more restrictive than the state law.

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 17595 Kenwood Trail, Minneapolis, MN 55044 1-866-869-8888 www.natocentral.org 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 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.

Helena Tobacco Ordinance Does Not Support Banning Flavored Tobacco Products

According to our information, it appears that the Missoula City Council may have been presented with the proposed ordinance to ban the sale of flavored tobacco products because the City of Helena considered a similar restriction. On October 15, 2018, the Helena City Commission did consider a local ordinance that would have banned the sale of flavored tobacco products, except in those stores and establishments that only allow adults to be present. During the Helena City Commission’s discussion of the proposed ordinance and as reported in the meeting minutes, Helena City Attorney Thomas Jodoin reported to the Commission members that “the sale of flavored tobacco being limited to establishments where only adults are allowed may be challenged on the basis that the city does not have the authority to regulate flavored tobacco products or where such products may be sold.” After public comment on the ordinance, the ordinance was amended to delete the provision banning the retail sale of flavored tobacco products.

This amendment of the Helena ordinance demonstrates that the Helena City Commission abided by the state pre-emption law as explained by City Attorney Jodoin and did not proceed with banning the sale of flavored tobacco products. Similarly, the Missoula City Council needs to act as the Helena City Commission did by removing the ban on flavored tobacco products, alternative nicotine products, and vapor products from the proposed ordinance. Such action would also coincide with Legal Opinion 2020-007 dated February 7, 2020 and issued by your office to the Missoula Mayor and Missoula City Council which concludes that pursuant to Section 16-11-311 of Montana Code Annotated, “a local government may by ordinance adopt regulations that are no more stringent than the provisions of the Youth Access to Tobacco Products Control Act.”

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 the City of Missoula’s categorical ban on flavored tobacco products. Under the Tobacco Control Act, Congress authorized the FDA to adopt “product standards” for tobacco products. (21 United States Code, Section 387). A tobacco “product standard” is the power to eliminate or restrict the use of an additive or ingredient in a tobacco product or tobacco product smoke. 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. The proposed Missoula ordinance’s ban on flavored tobacco products is a product standard because it regulates the ingredients and 17595 Kenwood Trail, Minneapolis, MN 55044 1-866-869-8888 www.natocentral.org additives in, and the properties of, tobacco products. For this reason, the Tobacco Control Act expressly preempts the Missoula flavor ban ordinance.

In addition, federal law also impliedly preempts the ordinance because the City of Missoula’s 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. The City’s proposed ordinance, however, conflicts with those federal goals and must give way to the federal law.

In conclusion, the City of Missoula 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. Accordingly, the Missoula City Council should not proceed with any further consideration nor adoption of the proposed flavored tobacco product sales ban ordinance.

Thank you for your consideration of these legal comments and including these comments in the public record.

Sincerely, Thomas Briant NATO Executive Director and Legal Counsel