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Regulatory Options for E -Cigarettes / 7
<br />18 Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, 2012 WL 6128707 at *5-7, 11.
<br />"21 C.F.R. § 1140.16(d)(1).
<br />20 The Tobacco Control Act irmnediately gave the FDA the authority to regulate cigarettes, roll year own,
<br />and smokeless tobacco and "any other tobacco products that the Secretary by regulation deems to be
<br />subject to" the Act. The Act includes a broad definition of tobacco products that would appear to include
<br />e -cigarettes and any other tobacco product that is currently on the market. However, in order to regulate
<br />those products, the FDA has to issue a regulation that deems them subject to the Act. After indicating in
<br />2011 that it intended to issue the regulations later that year, the FDA did not issue the regulations in 2011
<br />or 2012. In January 2013, the U.S. Department of Health and Hanan Services (HHS) published its
<br />Unified Regulatory Agenda, which indicates that the FDA intends to issue a notice of proposed
<br />rulemaking regarding its authority to deem other tobacco products subject to its jurisdiction in April 2013.
<br />U.S. Dep't of Health & Human Services, Regulatory Agenda, 78 Fed. Reg. 1574, 1579 (Jan. 8, 2013),
<br />available athtto://www.no.gov/fdsys/Xkg/FR-2013-01-08/Xdf/2012-3167I.Pdf.
<br />Ir See, e.g., Tobacco Control Legal Consortium, Tobacco Coupon Regulations and Sampling Restrictions
<br />— Tips and Tools (2011), available at htt ,//oublichealthlawcenter oro/sites/default/files/resources/tcic-
<br />guide tobcouoonreesandsarnoline-2011 odf.
<br />21 See U.S. Food & Drug Admin., Flavored Tobacco,
<br />http•//www fda eov/TobaccoProducts/ProtectinpKidsfrmnTobacco/FlavoredTobacco/default.htm (last
<br />visited Feb. 8, 2013) (containing links to resources related to 2009 law prohibiting the manufacture and
<br />sale of cigarettes containing certain characterizing flavors).
<br />" Minutes, U.S. Food & Drug Admin., Ctr. for Tobacco Products, Tobacco Products Scientific Advisory
<br />Committee Meeting, Dissolvable Tobacco Products Session, Testimony of Curtis Wright (July 21, 2011),
<br />available at
<br />http //www fda.gov/downloads/AdvisorvCommittees/CommitteesMeetinaMaterials/TobaccoProductsScie
<br />ntificAdvisorvCommittee/tJCM270282.1)df.
<br />24 21 U.S.C. § 387p(a)(1). See Tobacco Control Legal Consortium, Federal Regulation of Tobacco:
<br />Impact on State and Local Authority (2009), available at
<br />http•//www publichealthlawcenter orggJsites/default/files/fda-l.pdf.
<br />2s N.Y.C. CODE § 17-713, 715 (prohibiting the sale of smokeless tobacco products that have as a
<br />component part tastes or aromas relating to "any fruit, chocolate, vanilla, honey, candy, cocoa, dessert,
<br />alcoholic beverage, herb or spice.").
<br />" U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 703 F. Supp. 2d 329, 344-45 (S.D.N.Y. 2010)
<br />(denying plaintiffs' motion for a preliminary injunction, finding them unlikely to prevail on the merits of
<br />their federal preemption claim; concluding that the Tobacco Control Act gives the federal government the
<br />exclusive authority to regulate the manufacture of tobacco products, while reserving to the states the
<br />power to regulate the sale and distribution of tobacco products).
<br />2' U.S. Smokeless Tobacco Mfg. Co. v. City of New York, No. 09 Civ. 10511, 2011 WL 5569431
<br />(S.D.N.Y. Nov. 15, 2011) (affirming reasoning of preliminary injunction order that the ordinance
<br />is an allowable sales restriction, denying plaintiffs' motion for summary judgment, granting
<br />defendant's cross-motion for summary judgment, and dismissing the complaint).
<br />21 PROVIDENCE, R.I. CODE §§ 14-308, 14-309, and 14-310.
<br />29 Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, No. 12-96—ML, 2012 WL 6128707 at * 12-
<br />13 (D.R.I. Dec. 12, 2012).
<br />30 Id. at *8.
<br />Tobacco Control Legal Consortium 875 Summit Avenue, Saint Paul, MN 55105-3076 vAm.publicheallhlawcenter.org 651.290.7506
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