United States District Court, N.D. Illinois, Eastern Division
INDEPENDENTS GAS & SERVICE STATIONS ASSOCIATIONS, INC., Plaintiff,
CITY OF CHICAGO, Defendant. 5827, INC. d/b/a QUICK PICK FOOD MART, Plaintiff,
CITY OF CHICAGO, Defendant.
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
The plaintiffs in this case, Independents Gas & Service Stations Associations, Inc. and Quick Pick Food Mart, have sued the City of Chicago. They allege that the city's flavored tobacco ordinance is preempted by the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), 21 U.S.C. § 387p (count 1), unconstitutionally vague under the Fourteenth Amendment of the U.S. Constitution (count 2), and both a violation of vested rights and improperly retroactive under the Due Process Clause of the Illinois Constitution (count 3). Count 4 of the complaints is not a claim in itself but rather is a request for permanent injunctive relief. The City of Chicago has moved to dismiss both complaints in their entirety for failure to state a claim. For the reasons stated below, the Court grants the city's motions.
The ordinance at issue in this case, enacted by the Chicago City Council in December 2013, regulates the sale of flavored tobacco products. The ordinance defines "flavored tobacco product" as "any tobacco product that contains a constituent that imparts a characterizing flavor." Chi., Ill., Code § 4-64-098 (2015). "Characterizing flavor, " in turn, is defined as "a distinguishable taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product, " including "tastes or aromas of menthol." Id. The ordinance aims to reduce flavored tobacco "retail density around schools, " thereby "reduc[ing] smoking among adults and youths." Chi., Ill., Ordinance O2013-9185 (Dec. 11, 2013). To this end, the ordinance amends section 4-64-180 of the Chicago municipal code to prohibit "sell[ing] . . . or otherwise deal[ing] in flavored tobacco products. . . at any location that has a property line within 500 feet of the property line of any public, private, or parochial elementary, middle, or secondary school located in the City of Chicago." Chi., Ill., Code § 4-64-180(b) (2015). Retail tobacco stores, defined as retail establishments that derive more than 80% of their gross revenue from the sale of tobacco products, are excluded from this restriction. Id. (incorporating Chi., Ill., Code § 7-32-010 by reference).
The plaintiffs are Independents Gas & Service Stations Association, Inc., an association of independent small business owners and operators of gasoline service stations holding tobacco licenses in the City of Chicago, and Quick Pick Food Mart, a convenience store that sells flavored tobacco products. As indicated earlier, plaintiffs allege that the ordinance is preempted by the FSPTCA, unconstitutionally vague under the Fourteenth Amendment of the U.S. Constitution, and both a violation of vested rights and improperly retroactive under the Due Process Clause of the Illinois Constitution. They seek declaratory and injunctive relief.
In October 2014, Independents Gas moved for a temporary restraining order barring enforcement of the ordinance. The Court denied that motion. The city has now moved to dismiss both complaints in their entirety.
To survive a motion to dismiss under Rule 12(b)(6), plaintiffs must provide "enough facts to state a claim to relief that is viable on its face, " Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), which in turn means that they must "plead[ ] 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. 662, 678 (2009). The Court accepts plaintiffs' allegations as true and draws reasonable inferences in their favor. Gruber v. Creditors' Prot. Serv., Inc., 742 F.3d 271, 274 (7th Cir. 2014).
Plaintiffs argue that the flavored tobacco ordinance is preempted by the FSPTCA, relying on an express preemption clause in 21 U.S.C. § 387p. When interpreting a statutory preemption clause, courts "begin . . . with the assumption that the historic police powers of the States" are not preempted by the federal law "unless that was the clear and manifest purpose of Congress." Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008). The ordinance at issue here is intended to promote health and general welfare and is thus an exercise of the city's police powers. See Rosin v. Monken, 599 F.3d 574, 577 (7th Cir. 2010). Accordingly, the Court assumes that the FSPTCA does not preempt the ordinance "unless Congress has made such an intention clear and manifest." Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 (2005). If the preemption clause "is susceptible of more than one plausible reading, " the Court "accept[s] the reading that disfavors pre-emption." Altria Grp., 555 U.S. at 77.
Section 387p is divided into three clauses. The first clause says that nothing in the FSPTCA is to be construed
to limit the authority of . . . a State or political subdivision of a State . . . 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 . . . .
21 U.S.C. § 387p(a)(1) (emphasis added). In short, this provision expressly preserves a local government's authority to adopt and enforce laws involving the sale of tobacco products.
The preservation clause is followed by a preemption clause. The preemption clause states that "[n]o [s]tate 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 . . . ." Id. § 387p(a)(2)(A).The phrase "tobacco product standards, " as used in the FSPTCA, encompasses a wide variety of issues, including: nicotine yields; reduction or elimination of harmful components; product testing; sale and distribution restrictions; labeling; and construction, components, ingredients, additives, constituents, and properties of the tobacco product. See 21 U.S.C. § 387g. The third clause in section 387p states that the preemption clause "does not apply to requirements relating to the sale, distribution, possession, . . . exposure to, access to, the advertising ...