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Tobacco Litigation

BUFFALO, NY – April 18, 2003 – OLTRA (the Online Tobacco Retailers Association), announced that it and three of its members, along with two New York consumers, filed a lawsuit in the United States District Court for the Western District of New York against Governor George Pataki, New York Attorney General Eliot Spitzer and Commissioner of Health Antonia Novello, seeking to have New York Public Health Law §1399-ll declared unconstitutional.  The Statute prohibits interstate cigarette retailers from shipping cigarettes to consumers in the State of New York, but allows in-state retailers to sell and deliver cigarettes to those in-state consumers.

In the lawsuit, OLTRA, with a New York Indian tobacco retailer, online tobacco retailers and disabled consumers, raised constitutional challenges to the Statute. They contend that it discriminates against interstate tobacco retailers and Indian retailers and fails to accommodate the needs of the disabled, who rely on direct deliveries to their doors.

The statute, originally scheduled to take effect on November 14, 2000, was previously challenged by cigarette manufacturers, who claimed that it violated the Commerce Clause of the United States Constitution, which prevents states from impeding interstate commerce. A federal court in New York ruled in the companies’ favor, enjoining enforcement of the statute, but was reversed on appeal.  The lawsuit filed yesterday raises new legal challenges, such Indian sovereign rights, that were not addressed by the Courts in the prior lawsuit.

• Amicus Curiae Brief in Brown & Williamson v. Pataki
• Majority Decision in Brown & Williamson v. Pataki, 320 F.3d 200 (2d Cir. Feb. 12, 2003).
• Complaint in OLTRA et al. v. Pataki, 03-CV-0319 (W.D.N.Y. filed Apr. 17, 2003). (Coming Soon).