The U.S. Supreme Court recently held in Lorillard v. Reilly that the Federal Cigarette Labeling and Advertising Act preempted state regulations governing outdoor and point-of-sale cigarette advertising. See Federal Preemption Now a Barrier to Local Tobacco Ordinances. However, tobacco control advocates have long been concerned about preemption in the context of state laws that prevent local municipalities from enacting laws more stringent than state law mandates.
The Supreme Court of Connecticut recently considered whether local municipalities could impose more restrictive conditions on the placement of cigarette vending machines than those mandated by state law. See Modern Cigarette, Inc. v. Town of Orange, 774 A.2d 969 (Conn. 2001). The state statute (Conn. Gen. Stat. § 12-289a) provided in part that “[n]o cigarette vending machine … may be placed in an area, facility or business which is frequented primarily by minors” and that “[a] cigarette vending machine may be placed only in (1) an area, facility or business which is accessible only to adults or (2) a [permitted] area, facility or business … the area, facility or business has a separate area accessible only to adults and the machine is placed in such area.” Finally, the statute specifically provides that “[n]othing in this section shall be construed as limiting a town or municipality from imposing more restrictive conditions on the use of vending machines for the sale of cigarettes. A municipality shall be responsible for the enforcement of such conditions.”
On May 13, 1998, the town of Orange, Connecticut adopted a municipal ordinance effectively prohibiting cigarette vending machines within its borders. The ordinance provided that “[n]o person shall dispense or cause to be dispense[d] cigarettes, tobacco or smokeless tobacco products from vending machines at any location within the Town....”
In passing the ordinance, the town said that local school officials had noticed a significant rise in teenage smoking and that “[c]urrent laws and regulations have proved ineffective and inadequate in preventing the illegal purchase of cigarettes by children under the age of [eighteen] years, particularly from cigarette vending machines....” A 1998 survey commissioned by the state department of mental health and addiction services found that minors “were successful in their efforts to purchase cigarettes from a vending machine in six out of every ten attempts.” Further, “a minor is twice as likely to be able to purchase cigarettes from a vending machine as from a convenience store or other over-the-counter outlet.”
The trial court held in favor of Modern Cigarette, Inc. (plaintiff-owners of vending machines), that the ordinance was pre-empted by the state statute. The trial court held that the language “[n]othing in this section shall be construed as limiting a town or municipality from imposing more restrictive conditions on the use of vending machines for the sale of cigarettes” only allowed a municipality to impose “more restrictive conditions (emphasis added) on the use of vending machines,” and since the statute does not use the word “prohibit,” the trial court held that the legislature had not given municipalities the power to impose an outright ban on cigarette vending machines. The trial court therefore concluded that “by banning cigarette vending machines, the ordinance prohibits that which the statute authorizes, and therefore the ordinance was ‘irreconcilably inconsistent’” with the state law.
The Connecticut Supreme Court reversed saying that the “core of plaintiff’s argument was that the power to regulate does not include the power to prohibit.” The Court acknowledged that when a local ordinance irreconcilably conflicts with a state statute, the local ordinance is preempted. Here, the Court simply felt that the local ordinance went further than the state statute, and therefore held the local ordinance was not preempted. The Court also acknowledged that the issue of youth access to tobacco “is very much a local matter.”
This case was decided shortly before the U.S. Supreme Court case of Lorillard v. Reilly. In fact, the Orange town ordinance contained advertising restrictions (in addition to the vending machine prohibition) that may be in jeopardy as a result of the Lorillard decision. However, Lorillard upheld regulations requiring retailers to place tobacco products behind counters and requiring customers to have contact with a salesperson before handling tobacco products. Therefore, the “vending machine” portions of Modern Cigarette, Inc. should be upheld in spite of the Lorillard decision.