Eastchester Tobacco & Vape Inc. v. Town of Eastchester

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EASTCHESTER TOBACCO & VAPE INC., EASTCHESTER SERVICE STATION INC., EASTCHESTER SERVICE CENTER INC., CHESTNUT MARTS INC., and SCARSDALE AUTO CLINIC, INC., Plaintiffs, v. TOWN OF EASTCHESTER, EASTCHESTER TOWN BOARD, ANTHONY S. COLAVITA, JOSEPH DOOLEY, LUIGI MARCOCCIA, THERESA NICHOLSON, SHEILA MARCOTTE, and TOWN OF EASTCHESTER POLICE DEPARTMENT, Defendants.

No. 21 CV 6996 (VB)

United States District Court, S.D. New York

August 1, 2022

OPINION AND ORDER

BRICCETTI, J.:

Plaintiffs Eastchester Tobacco & Vape Inc. (“ETV”) Eastchester Service Station Inc. (“ESS”) Eastchester Service Center Inc. (“ESC”), Chestnut Marts Inc. (“CM”), and Scarsdale Auto Clinic Inc. (“SAC”), bring this action against defendants the Town of Eastchester (the “Town”), the Eastchester Town Board, Anthony S. Colavita, Joseph Dooley, Luigi Marcoccia, Theresa Nicholson, Sheila Marcotte, and the Town of Eastchester Police Department. Plaintiffs allege the Town's Electronic Nicotine Delivery Product Law (the “Local Law”), which prohibits “[t]he sale, offer for sale, or distribution of Electronic Nicotine Delivery Products,” is preempted by federal and state law, violates the First Amendment, and is unconstitutionally vague.

Now pending is defendants' motion to dismiss the amended complaint pursuant to Rule 12(b)(6). (Doc. #22).

For the reasons set forth below, the motion is GRANTED.

BACKGROUND

For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the amended complaint and draws all reasonable inferences in plaintiffs' favor, as summarized below.

On September 3, 2019, the Town enacted the Local Law. (Doc. #21 (“Am. Compl.”) ¶ 38). The Local Law prohibits “[t]he sale, offer for sale, or distribution of Electronic Nicotine Delivery Products . . . within the Town of Eastchester,” Local Law § 3, and it directed all persons to “cease all sales of such products within the Town of Eastchester within six (6) months of' the Local Law's enactment. Id. § 4.

The Local Law provides it is to be enforced by the Town of Eastchester Police Department, and that “[a]ny Person who violates' the “Local Law shall be guilty of a violation punishable by a fine not exceeding $1,000.00 for each offense.” Local Law §§ 5-6.

Under the Local Law, “Electronic Nicotine Delivery Products' are defined as:

Any article or product, not including cigarettes, cigars, pipe tobacco, or chewing tobacco, made wholly or in part of a tobacco substitute or otherwise containing nicotine that is expected or intended for human consumption, but not including a tobacco substitute prescribed by a licensed physician or a product that has been approved by the United States Food and Drug Administration for sale as a tobacco use cessation or harm reduction product or for other medical purposes and which is being marketed and sold solely for that approved purpose. Electronic Nicotine Delivery Products include, but are not limited to, e-cigarettes, vapes, vaporizers, vape pens, lozenges or other candy, drinks, liquid nicotine or other e-liquids or inhalers.

Local Law § 2.

Plaintiffs are businesses within the Town that either have been cited for violations of the Local Law, have lost business because of the Local Law, or seek to sell products potentially banned by the Local Law. (Am. Compl. ¶¶ 7-11). ETV also alleges it has been cited for offering to sell component parts of Electronic Nicotine Delivery Products, such as a coil or battery, which do not contain tobacco, a tobacco substitute, or nicotine. (See Id. ¶¶ 45-48).

DISCUSSION

I. Legal Standard

In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under “the two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).^[1] First, a plaintiff's legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.

To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).

II. Federal Preemption

Defendants contend plaintiffs have not plausibly alleged the Local Law is preempted by federal law.

The Court agrees.

A. Legal Standard

The Supremacy Clause provides that federal law is “the supreme Law of the Land.” U.S. Const. art. VI, § 2. Thus, “state and local laws that conflict with federal law are without effect.” N.Y. SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d 97, 103 (2d Cir. 2010). A plaintiff may invoke federal subject-matter jurisdiction when it alleges a local law is federally preempted and seeks injunctive and declaratory relief. Concerned Citizens of Cohocton Valley, Inc. v. N.Y.S. Dep't of Env't Conservation, 127 F.3d 201, 206-07 (2d Cir. 1997).

The relevant type of federal preemption here is “express preemption,” when “Congress has expressly preempted local law.” N.Y. SMSA Ltd. P'ship v. Town of Clarkstown, 612 F.3d at 104. “Preemption analysis is guided by the presumption that a federal statute does not displace the local law unless Congress has made such an intention clear and manifest,” especially when “a locality seeks to exercise its police powers to protect the health and safety of its citizens.” U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d 428, 432 (2d Cir. 2013).

Here, plaintiffs contend the Local Law is expressly preempted the federal Family Smoking Prevention and Tobacco Control Act (the “FSPTCA”). Because plaintiffs seek injunctive and declaratory relief (Am. Compl. ¶¶ 76, 84), the Court possesses subject-matter jurisdiction over this claim. Concerned Citizens of Cohocton Valley, Inc. v. N.Y.S. Dep't of Env't Conservation, 127 F.3d at 206-07.

The FSPTCA empowers the Food and Drug Administration (“FDA”) to regulate “[t]obacco products.” 21 U.S.C. § 387a(a). This includes “all cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco,” Id. § 387a(b), as well as nicotine delivered by “electronic nicotine delivery systems,” such as “e-cigarettes.” Deeming Tobacco Products to Be Subject to the Federal Food, Drug, and Cosmetic Act, 81 Fed.Reg. 28,973, 28,975 (May 10, 2016). To that end, the FSPTCA permits the FDA to promulgate “tobacco product standards,” which regulate, for example, additives in and nicotine yields of tobacco products. See 21 U.S.C. § 387g.

Section 387p of the FSPTCA includes a preservation clause, a preemption clause, and a saving clause.

The preservation clause states:

Except as provided in [the preemption clause], nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of a Federal agency (including the Armed Forces), a State or political subdivision of a State, or the government of an Indian tribe to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the State, or measures relating to fire safety standards for tobacco products.

21 U.S.C. § 387p(a)(1).

The preemption clause states:

No State or political subdivision of a State may establish or continue in effect with respect to a tobacco product any requirement which is different from, or in addition to, any requirement under the provisions of this subchapter relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.

21 U.S.C. § 387p(a)(2)(A).

The saving clause states that the preemption clause “does not apply to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age, or relating to fire safety standards for tobacco products.” 21 U.S.C. § 387p(a)(2)(B). “In other words,” the FSPTCA “distinguishes between manufacturing and the retail sale of finished products; it reserves regulation at the manufacturing stage exclusively to the federal government, but allows states and localities to regulate sales and other consumer-related aspects of the industry in the absence of conflicting federal regulation.” U.S. Smokeless Tobacco Mfg. Co. v. City of New York, 708 F.3d at 434.

The Second Circuit has suggested in dicta that a municipality's “complete” sales ban of a category of tobacco products might be preempted by the FSPTCA because complete sales bans are not within the scope of the FSPTCA's saving clause. U.S. Smokeless Tobacco Mfg....