Agenda Packets - 1997/03/24 - Laserfiche WebLink

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P I rn 0 M %..aq C I li . 4 I ON • ONLy • 5. What is the impact of the FDA regulations on local ordinances? The FDA has made it clear that they want to encourage local units of government to continue to adopt and enforce local regulations that have the effect of furthering the prevention of youth access to cigarettes and tobacco. However, under the provisions of the Federal Act authorizing the regulations, any provision of a local regulation that regulates in a different manner any matter covered by the FDA regulation is preempted. Provisions that are identical or substantially similar to the language contained in the FDA regulations are not preempted, nor are provisions governing issues not directly addressed in the FDA regulations. Examples of preempted ordinance provisions include complete bans on vending machines and self-service restrictions that are not a complete ban on such transactions. On the other hand, general licensing requirements are not preempted as the FDA regulations are silent on the issue of licensure. Further, an ordinance provision prohibiting the sale of cigarettes to anyone under the age of 18 would not be preempted as such a provision mirrors the FDA requirement. Penalty provisions are also specifically exempt from preemption. A waiver process has been established to allow local regulations that are more restrictive than the FDA regulations, or for which the local unit of government can demonstrate a compelling need based on the unique circumstances of that particular entity. The League is working with 4110 representatives of the Minnesota Attorney General's office and the Minnesota Department of Health to develop a coordinated waiver application process for cities with ordinances containing preempted language. A preemption review guide and model waiver application form will be made available to cities by late March or early April. May 6, 1997 has been set as the deadline for priority review of waiver applications and it is hoped that a coordinated application on behalf of at least a majority of cities in need of a waiver can be submitted by that date. 6. Isn't there a pending lawsuit over the FDA tobacco regulations? Coyne Beahm, Inc. et al. V. United States Food& Drug Administration and David Kessler was filed in Greensboro, North Carolina seeking an injunction against the regulations as well as a finding the FDA lacks authority to regulate tobacco, and that the regulations as adopted are unconstitutional. A hearing was held on February 10 seeking a preliminary injunction blocking enforcement of the requirements but no immediate order was granted. At least a preliminary ruling is expected in April. Even if the regulations were to be enjoined or held unconstitutional in North Carolina, which is in the fourth federal judicial district, the FDA may elect to continue enforcement in other districts such as Minnesota, which is in the 8th federal judicial district, until such time as a Supreme Court ruling is issued or further successful challenges are made in other judicial districts. III -over-