State and Local Regulation of Tobacco Products—A Scattershot Approach: “Policy Lab” or Policy Gone Wrong?

Beth G. Oliva & Philip Z. Langer


In the United States, the tobacco industry, already one of the most heavily regulated industries in the world, is subject to a panoply of varied laws and regulations at state, county, and city levels relating to taxes, pricing, packaging, flavors, and licensing, among other requirements. These laws and regulations often (and appropriately) vary by product type but lack any measure of uniformity between jurisdictions. Despite increasing regulation of tobacco products at the federal level, there is still a challenging patchwork of inconsistent laws across state and local lines, making compliance an enormously challenging task. Such inconsistency also creates consumer confusion and enables economic gamesmanship based on geography. Although preemption clauses at the federal and state level were ostensibly adopted to address potential discrepancies, these clauses have failed to address these concerns. In this Article, we examine two specific areas of tobacco product regulation at the state and local level— cigar pack-size/pricing restrictions and flavor bans. We discuss the varying approaches taken by states and localities on these issues, sometimes resulting in the invalidation of ordinances by federal and state courts. Finally, the Article explores approaches to the regulation of tobacco products that would promote what should be an important aim of regulation—to allow responsible businesses selling a legal product to exist in the marketplace while continuing the effort to further reduce youth usage of all tobacco products.