City’s only tobacco store sues Arden Hills over ban on flavored products


Arden Hills Tobacco, the city’s sole adult-only tobacco store, is suing the city over a recently-approved ban on the sale of flavored tobacco and nicotine products set to go into effect Dec. 31. The business, located in the 3600 block of Lexington Avenue, has operated in the city for over a decade. (file photo)

Arden Hills Tobacco filed suit against the City of Arden Hills Sept. 9, asking that a new ban on the sale of flavored tobacco and nicotine products be declared void. 

Among other things, the complaint claims that the city lacks the proper jurisdiction and that the ordinance is in violation of the Minnesota Constitution.

As the city’s sole adult-only tobacco store, Arden Hills Tobacco claims it stands to lose significant revenue and likely go out of business when the city’s ban on the sale of flavored tobacco and nicotine products takes effect Dec. 31.

Passing the ordinance in March, the council voted to both raise the tobacco purchasing age to 21 and ban the sale of flavors citywide, regardless of a customer’s age — the second action being what the store now says it didn’t see coming and hopes to challenge.

John Ella, attorney for Arden Hills Tobacco, said in an interview that the suit would only impact the proposed flavor ban. “The age has already gone up, and that is not anything we’re challenging in the lawsuit.”

Although more than 40 local governments statewide have raised the purchasing age and many have sought flavor restrictions, the suit claims Arden Hills is the only one with a preexisting adult-only tobacco store that has passed a complete ban on the sale of flavored products.

The business is asking for a declaratory judgment, finding that the ordinance is invalid and unenforceable. It is also asking that a judge prevent the ordinance from going into effect during the course of litigation, and to permanently prevent the ordinance from going into effect at the conclusion of the lawsuit.

Additionally, the business is seeking upwards of $50,000 from the city as compensation for lost business and inventory that the store says it will now be unable to sell or lawfully transport out of the city. 

According to Arden Hills City Administrator Dave Perrault, the city has received the complaint and is reviewing it with its attorneys. Ella said the city is required to respond within 20 days of the suit’s Sept. 6 date of service.

Mayor David Grant declined to comment, due to the ongoing nature of the lawsuit.

 

Claims of vagueness, lack of jurisdiction

In asking the court to find the ordinance invalid, Arden Hills Tobacco cited five primary rationales: the ordinance’s vagueness, its preemption by federal law, the fact that the business was never given a judicial trial, a lack of a legitimate government interest and a lack of proper notice given to Arden Hills Tobacco by the city.

In detailing the accusation of vagueness, the complaint alleges that, “it is unclear based on conflicting conditions, how broadly the ban may be enforced.”

In the ordinance, flavored products are defined as, “Any licensed product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer.”

The suit claims that, “Types of tobacco ‘flavors’ could include Light, Western, Camel Turkish Blend, Marlboro select, etc.”

According to the complaint, affected businesses may not know what is required of them. The suit also says that lack of clarity could lead to arbitrary and potentially discriminatory enforcement.

Another primary claim is that by banning flavored tobacco products entirely, the City of Arden Hills goes outside of its jurisdiction to set a product standard.

“Under the Family Smoking Prevention and Tobacco Control Act ... only the United States Food and Drug Administration has the power to regulate tobacco product standards, including prohibiting the use of flavors, including menthol, in all tobacco products,” the complaint says.

Ella said recent headlines have demonstrated the FDA’s jurisdiction in this area. According to the Centers for Disease Control, nearly 400 cases of severe lung illness — likely linked to the use of e-cigarettes — have been reported across the U.S. Six deaths, including one in Minnesota, have prompted the federal government to move toward a nationwide ban on the sale of most flavored e-cigarettes.

 

Singled out

The fact that Arden Hills Tobacco is the sole preexisting adult-only tobacco store in the city — and the only business in Arden Hills that gets more than 90% of its sales from tobacco and nicotine products  — has led to the claim that it was singled out.

The business’ suit uses this fact to say that the new ordinance is a bill of attainder, a form of law banned under the Minnesota Constitution. “A bill of attainder is a law that legislatively inflicts punishment upon an identifiable individual without the protections of a judicial trial,” states the complaint, with Arden Hills Tobacco being the individual.

Additionally, the suit claims the ordinance violates the Equal Protection Clause of the Minnesota Constitution, without being rationally-related to a legitimate government goal.

The stated purpose of the city’s amended tobacco ordinance reads, “This ordinance is intended to regulate the sale of tobacco, tobacco-related devices, electronic delivery devices, and nicotine or lobelia delivery products to protect the public, especially youth and young adults.”

Meanwhile, the suit says that the city accomplishes its goal of protecting youth from the harms of tobacco and nicotine products by increasing the purchasing age.

“It doesn’t serve the stated purposes, it’s unnecessary and it has two other consequences,” said Ella. He said it would put his client out of business and also “deprive citizens of Arden Hills from being able to buy a lawful product if they’re over 21.”

 

Getting to the ordinance

At the local level, the suit claims that Arden Hills Tobacco did not receive proper notice for an initial city council work session on the topic, which took place Aug. 20 of last year. While it gave the time and place, the business claims that the notice did not mention any possibility of regulating flavored products.

“There was a notice of public meeting sent that said, ‘We’re going to discuss raising the age to buy tobacco to 21.’ My client did get that and said, ‘We don’t need to go to that,’” explained Ella. “The notice was defective because it didn’t state that a flavor ban would also be discussed.”

According to the Aug. 20 work session minutes, a representative from the Association for Non-Smokers was in attendance and presented to the council on raising the purchasing age. Council members then discussed an age change, as well as the possibility of restricting the sale of flavored products.

“[They] had a head start by the time my clients were involved. It was a one-sided debate in the first meeting,” said Ella. The council met again to discuss both the age increase and possible flavor restrictions on several occasions before approving the ordinance on March 25.

After that initial passage, the council considered an exemption for Arden Hills Tobacco, which it ultimately voted down at its July 8 meeting.

– Bridget Kranz can be reached at bkranz@lillienews.com or 651-748-7825

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