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Regulatory Options for E -Cigarettes / 4 In 2009, New York City enacted an ordinance prohibiting the sale of flavored non - cigarette tobacco products with a characterizing flavor other than menthol, mint, or wintergreen, except in certain "tobacco bars. ,25 Smokeless tobacco companies sued the city, arguing that the ordinance imposed manufacturing standards on their products in conflict with federal law. In 2010, the federal district court for the Southern District of New York ruled in favor of the city, denying the tobacco companies' request to delay enforcement of the law. 26 The court stated that the Tobacco Control Act gives the federal government exclusive authority over tobacco product manufacturing standards, but preserves state and local authority to regulate the sale and distribution of tobacco products. The court then found that the New York City ordinance was a sales restriction, not a product standard. In 2011, the court affirmed the reasoning of its previous decision and dismissed the complaint. 27 In early 2012, Providence, Rhode Island enacted a similar ordinance prohibiting the sale of flavored tobacco products, except in "smoking bars."28 Several tobacco industry stakeholders sued the city, arguing that the ordinance was preempted by the Tobacco Control Act because it attempted to establish a product standard, and also violated the First Amendment because it limited their ability to describe their products. Like the New York court, the federal district court in Rhode Island concluded that the ordinance was a sales restriction, not a product standard, and thus was not preempted under the Tobacco Control Act 29 The court also concluded that Providence's ordinance did not limit the plaintiffs' First Amendment rights, finding that it was simply an economic regulation on the sale of a particular product. 30 Although both of these decisions are on appeal and, even if upheld, would not be precedential in all jurisdictions, their promising initial results may help support similar state or local laws to prohibit or restrict the sale of flavored tobacco products, including flavored e -cigarettes Youth Access Regulatory Gap: Under federal law, retailers cannot "sell cigarettes or smokeless tobacco to any person younger than eighteen years of age.i31 As explained above, the FDA has yet to assert jurisdiction over electronic cigarettes and extend restrictions like this to e -cigarettes. Also, many state and local youth access laws do not include e- cigarettes.32 • Regulatory Options: State and local governments could consider passing stronger, more comprehensive youth access laws to prohibit the sale of e -cigarettes to minors, require these products to be kept behind the counter, allow them to be sold only in places adults are permitted to enter, or raise the minimum legal age to purchase them. 33 Use Restrictions • Regulatory Gap: Many smoke-free laws define the act of "smoking" as inhaling or carrying a lighted tobacco or plant product intended for inhalation. E -cigarettes, which Tobacco Control Legal Consortium 875 Summit Avenue, Saint Paul, MN 55105-3076 www.publichealthlawcenter.org 651.290.7506