Not For Sale: State Authority to End Cigarette Sales (2018)

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This journal article, written by Joelle Lester and Mark Meaney of the Public Health Law Center and published in the Mitchell Hamline Law Review, addresses 'end game' strategies, which have been proposed with the goal of eliminating tobacco smoking. Some of these strategies may prove useful for the United States, particularly reduction of the nicotine content of tobacco products and greater restrictions on sales, including bans on entire categories of tobacco products. To date, no jurisdiction in the United States has taken the next step and prohibited the sale of an entire class of tobacco products, and any jurisdiction pursuing such bold sales restrictions on tobacco products should expect vocal opposition to their efforts.

Lester and Meaney conclude that a state law that prohibits the sale of a class of tobacco products would likely survive a litigation challenge on federal preemption grounds. A local law of this nature would likely face federal, and possibly state, preemption challenges. In addition, local laws often face challenges based on whether or not the jurisdiction has adequate authority. Should such a challenge turn on federal law, the sales prohibition likely will be upheld. Challenges based on state law will have varying results depending on the relevant language in each state's constitution and statutes.