Ask most people what the word “preemption” means and chances are good they will think of television - a favorite show being moved to make way for a special program or delayed for a football game gone to double overtime.
But as a matter of law, preemption means that local jurisdictions cannot pass legislation more restrictive than state law. Here at the Cigar Association of America, it’s more than a matter of law; it’s a matter of common sense. In the case of cigars, preemption is a principle that protects our industry and customers from efforts by anti-cigar lobbyists from pushing hundreds of local jurisdictions to tax and regulate our product in hundreds, if not thousands, of new ways.
It works like this: If the anti-cigar forces in a given state fail to get legislators to pass laws banning cigar sales or cigar smoking, or can’t convince state government to continually raise taxes and push new regulations, they turn their efforts to city, county and other local governments. Several states have been targeted for this approach and CAA staff and advocates work continuously to track and fight these efforts. It’s a high-stakes battle, state by state, and so far, we’ve been successful.
Most recently CAA, cigar retailers, and Maryland consumers won a tremendous victory when Maryland’s highest court ruled that Prince George’s County lacked the legal authority to enact and enforce ordinances banning the sale of cigars in packages of fewer than five.
The decision by the Court of Appeals puts an end to a case that lasted five years and would have had a tremendous and negative effect on cigar retailers and consumers.
Writing the decision in Altadis, et al v. Prince George’s County, Judge John C. Eldridge noted that Maryland specifically reserves the right to regulate how cigars and other tobacco products are packaged. The ruling means individual counties can’t strip the states of the responsibility to set uniform laws and regulation.
Here’s why the Maryland victory is worth the five-year battle CAA and our partners waged and why we are engaged and active across the country: Imagine the landscape without preemption. For the adults who enjoy our products, a drive from their home to a cigar shop or retailer nearby could be like a trip through the Twilight Zone; on one side of the street, one set of laws governing availability, display or price. And across the street in another town or county, completely different laws.
That’s the customer experience. Imagine the cigar businesses in a given town or county targeted aggressively by anti-cigar lobbyists, forced to compete against businesses a few blocks or a few miles away under an entirely different set of laws.
Beyond that, it’s a threat to the livelihoods of tens of thousands of men and women who work in the cigar industry – the ultimate targets of anti-cigar forces, working to tax and regulate our products completely out of business.
It’s ironic, but some of the push to increase local regulation of cigars is the result of our success at the state level across the country. In the state capitals, where we augment our small staff with some of the best advocates and lobbyists in the business, we have been very successful in halting a variety of restrictive regulation, including proposals to ban flavored cigars.
Faced with defeat, anti-cigar forces sometimes look at preemption as a fallback, saying, in effect, “if we can’t get the state to change the law, let’s eliminate the right of the states to make the law at all.”
In one state recently, the anti-cigar forces combined the issues directly, lobbying for the state to impose regulations that would keep 70 percent of all cigars off the store shelves, while it’s committee witnesses delivered appeals to hand authority for regulation over to the counties.
As I wrote recently, CAA and our allies went 9-0 in regulatory fights over flavorings in state legislatures last year. But as the battle expands or shifts to subjects like legal jurisdiction, we will maintain our focus to protect the industry and our adult customers to keep the full variety of cigars available nationwide.