Federal Preemption of Municipal Tobacco Ordinances:New York City and the Federal Cigarette Advertising and Labeling Act

Abstract

In contrast to the Family Smoking Prevention and Tobacco Act of 2009, which appears to preserve a strong role for states and cities to participate in and strengthen tobacco regulation, the Federal Cigarette Labeling and Advertising Act (FCLAA) has placed significant limitations on the anti-tobacco policies that local governments can enforce. This paper argues that cities may have unique needs not adequately addressed by federal regulations and that, as a normative matter, they should be able to pass laws that better reflect the needs and desires of their residents. Using New York City as an example, I will illustrate three cases in which city ordinances have been invalidated by federal preemption under FCLAA. I will explain the type of analysis in which judges have typically engaged in order to find preemption in these cases. These judges have tended to place a strong emphasis on the values codified by the Supremacy Clause of the United States Constitution while de-emphasizing the presumption against preemption for regulations that implicate states’ traditional police powers.