Gas station group challenges new city ordinance banning sale of flavored tobacco near schools

By Jonathan Bilyk | Oct 1, 2014

Claiming the measure serves as a disguised de facto ban on the sale of menthol cigarettes almost everywhere in the city, a group of Chicago service station and convenience store operators have asked a federal judge to strike down a local ordinance supporters said was intended to tamp down the marketing of flavored tobacco products to school children.

The Independents Gas & Service Stations Associations Inc. filed suit Sept. 27 in Chicago's federal court against the city, challenging an ordinance the city council approved last year to prohibit any retailer, other than a tobacco store, located within 500 feet of any elementary, middle or high school from selling flavored tobacco products.

The ordinance previously established a zone of 100 feet in which such sales were banned.

The plaintiff association, also known as I-GAS, identified itself in the suit as a not-for-profit corporation representing “independent small business owners and operators of gasoline service stations holding tobacco licenses in the city of Chicago.”

The ordinance at the crux of the suit was introduced and supported by Mayor Rahm Emanuel, and passed the City Council on a 48-2 vote. At the time, published reports quoting Emanuel indicated he believed the measure was needed to restrict tobacco companies from using their flavored products to “lure” children to become “addicts.”

With the ordinance set to take effect Oct. 15, I-GAS said in its suit the city has notified store operators potentially impacted by the new rule that they have until early November to get rid their stores of any products that might be in violation of the ordinance, including menthol cigarettes.

And that ban on menthol cigarettes, I-GAS asserts, is where the retailers believe the ordinance begins to fail legal and constitutional tests.

To begin, I-GAS contends in its complaint, the ordinance by regulating menthol products, violates a federal law, which, in banning most other flavored tobacco products, specifically exempts cigarettes containing menthol from the regulation.

The law, known as the Family Smoking Prevention and Tobacco Control Act, also delegates authority to regulate tobacco products to the federal Food and Drug Administration.

Since Chicago’s ordinance specifically addresses the sale of menthol cigarettes, I-GAS contends the ordinance would go beyond the authority granted it by the federal law, and is thus preempted and illegal.

But, I-GAS claims in its suit the real damage to retailers in the city would come from the lack of a grandfathering clause in the ordinance.

Since a private or parochial school could open nearly anywhere in the city, the station operators association argues the lack of a grandfathering clause could mean retailers who had been operating legally could suddenly find themselves on the wrong side of the ordinance if a school opens or acquires property within 500 feet of their property lines.

“The result of a no ‘grandfather’ provision makes is impossible for a retail operator to know where a tobacco license may be maintained continuously,” I-GAS asserts.

Further, the ordinance, the group argues, does not specify which school structures would be counted to determine the 500-foot bubble in which flavored tobacco products could be sold.

So, should a school hold an athletic field or other facility off its main campus, the retailers said the ordinance could also be construed to prohibit sales of menthol cigarettes within 500 feet of those structures, as well.

“The ordinance requires every retailer to know the boundaries of every structure owned by a school other than an actual school building and measure its location from that of the retailers with the degree of skill of a land surveyor,” I-GAS said.

As a result, the association contends, the soon-to-take-effect ordinance is “standardless,” and runs afoul of the 14th Amendment’s due process clause.

And without the grandfather clause or more defined standards regarding what is and is not a school, I-GAS contends the ordinance would serve as a “ ‘manifest destiny’ ban” on the sale of menthol cigarettes in the city.

At a minimum, the suit alleges the ordinance will cost station operators significant business, and could drive many operators all over the city out of business.

The association is being represented in the case by attorney David R. Sweis of the Sweis Law Firm in Oak Brook.

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