It took less than one day for the city of Edina to be sued after a June 16 vote to ban the sale of flavored tobacco products.
Alleging an unconstitutional overreach, a group of businesses including R.J. Reynolds Tobacco Company filed the suit June 17 in the wake of the Edina City Council’s unanimous vote.
Effective Sept. 1, the ban was approved in light of concerns over the use of vaping products among youth. In seeking to prevent the ban’s implementation, the lawsuit calls the decision an “overboard reaction to legitimate public health concerns about youth vaping.”
Edina is not the first city in Minnesota to enact restrictions on flavored tobacco, but the ban follows the city’s recent leadership in banning tobacco sales to buyers under the age of 21. In 2017, Edina became the first city in the state to enact such a restriction, starting a trend that led to the same measure becoming state law in May.
Edina’s ban on flavored tobacco defines the product category as any tobacco-related product that contains taste or smell other than tobacco. That includes flavors like menthol, mint, wintergreen, and varieties of fruit and candy.
Four other Minnesota cities – Golden Valley, Mendota Heights, Lilydale and Arden Hills – had completely prohibited the sale of flavored tobacco products before the Edina ordinance was approved, according to the Association for Nonsmokers-Minnesota. Sixteen cities in the state, including Edina, have approved some sort of restrictions on flavored tobacco sales, the organization adds.
A December memo from the Edina Community Health Commission predicted that other cities would follow in Edina’s footsteps in enacting a full ban on flavored tobacco products. “The Commission anticipates that other nearby municipalities may follow suit, as they did with the Edina Tobacco 21 initiative, until momentum is sufficient to lead to action at the state or federal level,” the memo states.
The suit filed in reaction to Edina’s ban includes two Edina businesses – Vernon BP and Lang’s One Stop Market. Filed in U.S. District Court, the suit argues the ordinance goes beyond concerns about youth vaping.
The legal action cites the Supremacy Clause in the U.S. Constitution, arguing the ban is preempted by U.S. law. In January, the FDA moved to ban most flavored pod-based vaping products such as those sold under the popular Juul brand. The ban did not include menthol flavoring, however.
“Congress and FDA have made the judgment that certain tobacco products, particularly menthol cigarettes and menthol-flavored ENDS (electronic nicotine delivery system) products, should remain available to adult users of tobacco products,” the suit states, arguing that Edina’s ban conflicts with federal goals.
The suit also argues that banning flavored vaping products could cause former smokers who now vape to revert to cigarettes. The plaintiffs, stating they agree with the goal of reducing vaping among youth, contend the city could have pursued that end by focusing on public health campaigns and the enforcement of age restrictions.
The Edina Community Health Commission memo notes that flavoring tobacco products reduces the burning sensation otherwise associated with tobacco consumption and thereby makes the products more attractive to youth. “Although not a solution as a single measure, a ban of flavored vaping liquids may lead to a reduction in the number of young people who take up e-cigarettes,” the memo reads.
Leading up to the June 16 vote at Edina City Hall, several public-health advocates sent letters to the city council approving of the ban. Backers included Minnesota Department of Health Commissioner Jan Malcom, the American Cancer Society, the American Lung Association, the American Heart Association and the Association for Nonsmokers.
Council members said they had also received correspondence from interest groups in opposition to the measure. Such criticism came from the likes of the Minnesota Service Station and Convenience Store Association. In a letter to the editor published in the Edina Sun Current in May, the organization’s executive director, Lance Klatt, argued the ordinance would reflect a double standard by banning flavored tobacco products while allowing city-owned liquor stores to continue selling flavored alcohol products.
City Manager Scott Neal responded to that reasoning by arguing there is a fundamental difference between tobacco and alcohol products. “The products we sell in liquor stores, when used as directed, are not going to kill you,” Neal said.
Aside from claiming the double standard, Klatt also warned of detrimental effects on businesses. “Convenience stores and service stations rely on gasoline sales and tobacco sales to remain in business. Without tobacco sales, the business model for these retailers no longer works,” he wrote.
The suit against the city also bemoans the fact that no public hearing preceded the council’s vote in favor of the ban. Because of the level of correspondence the city was already receiving on the proposed ban, council members judged that a public hearing would not have to precede their vote. A public hearing did, however, precede the council’s vote on Tobacco 21 in 2017.
Regarding that listening session, “I became much more well educated,” Mayor Jim Hovland said at a June 2 council meeting. The hearing, he continued, “allowed us to make a really solid decision on Tobacco 21.”
But makers and sellers of tobacco products had already been given fair chance to weigh in, Councilmember Mary Brindle observed. “Clearly, the industry knew about this for a while,” Brindle said. “ … I don’t think a public hearing’s going to give us anything more than we already have.”
– Follow Andrew Wig on Twitter @EdinaSunCurrent