Judge Rules New York City Flavor Ban is Allowed Under FDA Law

By Thomas A. Briant

Tobacco E-News

New York City – November 29, 2011— A federal district court judge has issued an order upholding aNew York City ordinance that bans the sale of all flavored tobacco products, except cigarettes, that contain a constituent or additive that imparts a characterizing flavor other than the taste or aroma of tobacco, menthol, mint or wintergreen.

Specifically, the ordinance bans flavored tobacco products that have a taste or aroma relating to any fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb or spice. There is a very limited exception in the ordinance, which allows flavored tobacco products to be sold in several existing “tobacco bars” in the city.

Shortly after the New York City Council adopted the ordinance in October of 2009, a lawsuit was filed in December of 2009 by U.S. Smokeless Tobacco Manufacturing Company and U.S. Smokeless Tobacco Brands Inc., seeking to overturn theNew York Cityflavor ban ordinance. Then, in March of 2010, the same federal judge denied a motion by the U.S. Smokeless Tobacco companies seeking a temporary injunction to block the enforcement of the ordinance.

The new court order issued on November 15, 2011, is in response to a motion for summary judgment by the U.S. Smokeless Tobacco companies to declare that theNew York Cityordinance is preempted by the 2009 FDA tobacco regulatory law known as the Family Smoking Prevention and Tobacco Control Act. In the court order, the judge relied on Section 916 of the FDA regulatory law.

This section of the law, titled “Preservation of State and Local Authority,” reads as follows:

“…nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of…a state or political subdivision of a state [i.e., a city, town or county]…to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age. …”

As stated in the court opinion, this means that “with respect to regulations relating to, or even prohibiting sales of tobacco products, local governments are free to go above any federal floor set either by the Family Smoking Prevention and Tobacco Control Act or by the FDA acting pursuant to it.” In other words, even though the FDA has not acted to ban the sale of flavored tobacco products, the court determined that a city could adopt such a restrictive law prohibiting the sale of a “subclass of tobacco products,” because Section 916 allows local governments to take that kind of action. The judge did state that the Family Smoking Prevention and Tobacco Control Act grants the FDA the exclusive power to regulate the manufacturing and fabrication of tobacco products, but the law reserved to states and cities the authority to adopt stricter regulations over and above any federal laws relating to the promotion, distribution, and sale of tobacco products.


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400-Year-Old Personalized Pipes Found at Jamestown


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New York Legislature OKs raising cigarette tax $1.60 to U.S. high $4.35 A PACK and Cigar Tax to 75%

The New York Legislature on Monday night narrowly approved boosting the state’s tax on cigarettes by an additional $1.60 – to a national-high $4.35 a pack. Factoring in city and federal levies, a single pack is taxed to the tune of $6.85, which translates to a counter price of $12 – $13 for New York City smokers.

The tax hike came as part of an emergency spending plan to keep New York government running for another week.

Pols now have seven days to cut a deal on a permanent budget, or risk Gov. Paterson putting a year’s worth of spending – and painful education cuts – into an emergency must-pass plan.

The new tobacco levy will also drive up the tax charged on cigars and chewing tobacco to 75% of its wholesale price – a 29% jump

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Tobacco Taxes Finance Terrorism – Interesting Article by Deroy Murdock

NEW YORK — The next terror attack on America could be a self-inflicted wound – specifically a cigarette burn.

Politicians expand tobacco taxes to discourage smoking and feed their own nicotine-like addiction to public spending. Like so many others, this government action smolders with unintended consequences. Tobacco taxes create a perfect arbitrage opportunity that radical Muslims exploit to collect money for terrorist groups that murder Americans and our allies. Tobacco taxes should be cut, or at least frozen, before they fuel further Islamic-extremist violence.

Read the complete article at http://www.humanevents.com/article.php?id=37363

Deroy Murdock
Mr. Murdock, a New York-based commentator to HUMAN EVENTS, is a columnist with the Scripps Howard News Service and a media fellow with the Hoover Institution on War, Revolution and Peace at Stanford University.

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Here we go again…New York State wants to raise cigar tax to 90%..no cap!

New York Gov. David A. Paterson has proposed a $620 million plan aimed at bridging the gap in the New York state budget. One of the ways he intends to raise that money is via a huge increase in the state’s tobacco taxes.  Paterson proposed a near doubling of the tax on cigars, pipe tobacco and chewing tobacco. The tax on those items currently stands at 46 percent of the wholesale price. Paterson’s plan calls for that tax to soar to 90 percent. Most premium cigars are priced at keystone, meaning the wholesale price is 50 percent of the suggested retail price. A consumer buying a cigar with a $10 suggested retail price in a New York store currently pays $4.60 in tobacco taxes to the state. If Paterson’s plan goes through as proposed, that tax would soar to $9.  Needless to say, this cannot happen. Can Paterson not see that he should reduce spending NOT increase taxes? Wait….that remark was not meant to be insensitive! New Yorkers….start bombarding your representatives and stop this madness!

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‘Godfather’ of Cuban tobacco dead at 91

Havana, Cuba — Alejandro Robaina, considered a legend among Cuban tobacco growers, died Saturday, according to Cuban cigar company Habanos S.A., which produced cigars named for him.

Robaina was 91. He was diagnosed with cancer last year and died on his farm in the western Cuban province of Pinar del Rio, said Habanos spokesman Jose Antonio Candia.

Robaina’s tobacco leaves are considered some of the best in the world. In Cuba, he was called “The Godfather.” His deeply wrinkled face smiled out from billboards, T-shirts and boxes of Vegas Robaina cigars, among Cuba’s finest. A box of premium Vegas Robaina cigars can fetch more than $500 on the international market.

But the man behind the smile was also a simple country farmer who got up at the crack of dawn every day to survey his fields until cancer slowed him down.

“I wouldn’t say I’ve triumphed, but I’ve done something with my life,” he told CNN in 2008. “The first thing is to love the land, take care of the land.”

Robaina’s family have farmed tobacco continuously since 1845 on the plantation. Under Robaina, business flourished, and the plantation had some of the best yields in the region, producing highly-prized wrapper leaves used for the outer layer of cigars.

Cigar aficionados around the globe called him the dean of Cuba’s cigar industry and every year thousands of visitors made the two-hour trek from Havana, hoping to share a stogie and a glass of rum with “the Don.”

Robaina kept his lands even when many ranches were nationalized after the 1959 revolution led by Fidel Castro.

“I had a very strong conversation with Fidel 18 or 20 years ago,” Robaina said in 2008. “He asked if I would join a big cooperative since I had so many workers, and I told him no.

“For me tobacco growing had to be in the family, done with love. Because in the big cooperatives, everyone’s the boss, nobody worries as much as the grower.”

Now, almost all of Cuba’s tobacco farms are private, according to the Agriculture Ministry. And they generally take their lead from Robaina, planting and harvesting on the same days he did.

“I like to sow during a waxing moon, and harvest in a waning moon,” he said.

Robaina said he’d been smoking cigars since he was 10 years old. “When I get really old, I’ll stop smoking the strong stuff,” he said.

In 1997, Cuba launched the Vegas Robaina brand, named in his honor. They’re made from the golden wrapper leaves grown on Robaina’s plantation but are rolled in a separate factory.

Like most of Cuba’s cigars, they’re largely exported. Because of the U.S. trade embargo, however, Cuban cigars are off-limits in America.

Robaina said in 2008 he hoped that policy would end during his lifetime.

“Of course I have hope they’ll open up the market,” he said. “Cuba’s willing to send cigars and they’re willing to smoke them. They’re going crazy because they can’t smoke cigars from here.”

Robaina will be buried Sunday, said Candia.

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Parade Magazine Runs “Junk Science” Study Article April 12, 2010

A Recent Press Release by the IPCPR:

Parade Magazine Runs “Junk Science” Study Article April 12, 2010–Following the recently released “study” linking Chronic obstructive pulmonary disease (COPD) to pipe and cigar smoking, last month, your trade association immediately rebutted the study with a nationally-distributed press release.

Parade Magazine ran a related article in their April 11th print edition and on the magazine’s website.

We wanted to again share with all of you the IPCPR’s release and our position –that the study, and others like it, prove flawed, based on misinformation.

Conclusions made by a new study of cigar and pipe smoking by researchers at the Columbia University Medical Center are not supported by the study’s findings, says the International Premium Cigar & Pipe Retailers Association, a non-profit group of premium cigar retailers and manufacturers.

The study, published in the Feb. 15 issue of Annals of Internal Medicine, was funded primarily by grants from the National Heart, Lung, and Blood Institute and the National Institutes of Health. The study concludes that “physicians should… counsel cessation of pipe and cigar smoking….”

“Nothing in the study justifies this erroneous conclusion. It is prejudicial and preconceived, thereby justifying the labeling of such surveys as corrupt misuse of junk science,” said Chris McCalla, legislative director of the IPCPR which is comprised largely of some 2,000 neighborhood mom-and-pop retail stores and family-owned manufacturers of premium cigars, pipes, tobacco and related accoutrements. McCalla cited several features of the study that he said support his group’s position:

  • Of 3,528 participants in the study, only 58 had ever smoked cigars or pipes and not cigarettes, and only 428 had smoked pipes or cigars along with cigarettes.
  • Only 47 of the subjects were current cigar smokers, of which only 16 were current cigar smokers who had never smoked cigarettes. Of the cigar smokers, 95 percent were male, but only 34 percent of non-smokers were men.
  • There was no effort in the study to determine the type of cigar smoked – machine-made or premium, hand-made cigars. The study showed no clinical effect on lung function in cigar smokers.
  • There were no differences in airflow obstruction between cigar smokers and non-smokers.
  • Cotinine levels (a form of nicotine) were similar in cigar smokers and non-smokers.

 “The study found no clinical differences between cigar smokers and non-smokers and to draw conclusions to the contrary is to participate in a conspiracy of public misinformation and deception,” McCalla said.

You may find this email an invaluable resource when writing a letter to the editor of your local paper or state representatives. You may also find it a good source for future testimony, or other uses. Please refer to this email and information provided if your customers or others may comment or ask you questions related to the orginial study.

The International Premium Cigar & Pipe Retailers Association is a not-for-profit trade association organized as the advocate for the independent retail tobacconist and recognized as the “Voice of Authority and Reason” on premium tobacco related issues. International Premium Cigar & Pipe Retailers Association (IPCPR) Chris McCalla Legislative Director

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