Whether the Town of Johnston, Rhode Island, has the authority to enact an ordinance that removes flavored tobacco products from general stores and requires that they be sold in vape shops or smoking bans, and that prohibits tobacco retailers from accepting coupons or providing discounts for any tobacco product.
In June 2017, the Town of Johnston, Rhode Island, enacted a tobacco control ordinance that removes flavored tobacco products from general stores and requires that they be sold in vape shops or smoking bans, and also prohibits tobacco retailers from accepting coupons or providing discounts for any tobacco product. To enforce this ordinance, Johnston requires tobacco retailers to obtain licenses and then to withdraw licenses if monetary penalties fail to compel compliance. Tobacco retailers challenged the ordinance, arguing that the municipality lack home rule authority to license tobacco retailers under state law.
On January 22, 2019, the Public Health Law Center filed an amicus brief at the Providence Superior Court in support of Johnston’s authority to enact the tobacco ordinance. Our brief focused on Rhode Island municipalities’ authority under state law to pass regulations that assure the health and safety of their inhabitants unless those regulations are preempted by state law. We argued that local control over matters of public health, including licensing dangerous merchandise or activities, is part of the fundamental legal framework that allows local governments to pass health and safety regulations, and that enacting this ordinance is well within the Town’s home rule authority.
Two other Rhode Island communities (Barrington and Middletown) have also been involved recently in tobacco-related litigation regarding local authority to regulate tobacco sales. Each of these cases is significant because many tobacco policies (including Tobacco 21, flavor restrictions, and coupon redemption restrictions) are components of licensing laws in Rhode Island, so a decision in favor of the plaintiffs in any case could have significant implications for local licensing authority throughout Rhode Island. On July 19, 2018, a court found against the Town of Barrington’s tobacco ordinance in a decision that may be appealed. In October 2018, a court found against the Town of Middletown’s tobacco ordinance.
The litigation is ongoing.