Marion Preparing to Take On Big Tobacco

The Marion Board of Health has decided to move forward with a regulation to restrict the sale of flavored tobacco products, but Marion will be the very first municipality in the United States to include menthol cigarettes in its restriction.

The regulation would restrict the sale of menthol cigarettes and flavored tobacco products to adult-only stores, of which there are none in Marion.

Law firm Jones Day, representing R. J. Reynolds Tobacco Company, among others, wrote a letter to the Board of Health dated September 26, telling the board that the flavor ban violates the Supremacy Clause of the U.S. Constitution.

“[W]e urge Marion to refrain from adopting the proposed regulation,” reads the letter. “If Marion instead chooses to adopt these provisions, we will have no choice but to consider the initiation of litigation challenging the regulation.”

The board was also in receipt of a letter from the Coalition for Responsible Retailing (CRR) dated September 19, representing retail trade associations that represent retail stores located in Marion. The letter asked the board to refrain from adopting such a restriction on flavored tobacco and menthol cigarettes citing a “severe financial impact on law-abiding retailers that have demonstrated 100% retail compliance in preventing the sale of tobacco to minors,” and furthermore calling the regulations “outside the scope of the Board of Health’s statutory authority.

The CRR cited the article from The Wanderer when Cheryl Sbarra warned the board of the risk of a lawsuit should it adopt such a restriction on menthol cigarettes, stating in the letter, “The assessment of the litigation risk is a reasonable one.

On October 3, the Board of Health met with a number of individuals representing several anti-tobacco entities that pledged their support should the board proceed with the regulation.

Christopher Banthin, program director of the Public Health Advocacy Institute (PHAI) of Northeastern University offered his and the PHAI’s pro bono support, should the tobacco industry initiate a lawsuit against the town all the way through the appellate level.

Banthin spoke with Town Counsel Jon Whitten, suggesting the town appoint Banthin as special counsel, saying, “[Whitten] was satisfied that, as long as a law firm would be willing to shoulder the defense of the case, he would feel comfortable moving forward…”

Banthin said his organization has ample experience defending a health regulation such as the one Marion is pursuing.

“We are focused on this issue,” said Banthin. “We know that this regulation would advance public health and protect millions of lives, so we are eager to help you and defend you at no cost.”

Also at the table with the Board of Health that night was Cheryl Sbarra, an attorney from the Massachusetts Association of Health Boards, Southeast Tobacco-Free Community Partnership Program Manager Kathleen Wilbur, and Bob Collett, director of the Cape Cod Regional Tobacco Control Program.

Sbarra said everyone willing to support the town through research assistance and legal representation is passionate about the issue; however, all parties must not move ahead in haste because much work is involved in preparing for this type of litigation risk.

“I would respectfully suggest that instead of moving forward with this as quickly as we are, this will suck up a lot of research time on our part,” Sbarra said. “This has the capability of taking on a life of its own.”

Sbarra said she would prefer to see a public hearing later rather than sooner so that they can be properly prepared.

“Because the industry will be,” said Sbarra.

Board of Health member Jason Reynolds concurred.

“I agree that it’s something that we probably need to be very purposeful [towards],” said Reynolds, adding, “It’s not just aimed at improving the health of the youth of our community, but it’s also aimed at improving the health of the entire community.”

The board voted to allow Banthin and his colleagues to meet with the town administrator and town counsel to draft a written agreement appointing Banthin as the special counsel to the tobacco matter.

The board also canceled its scheduled October 11 public hearing to vote on the flavored tobacco regulation.

The next meeting of the Marion Board of Health is scheduled for October 25 at 4:30 pm at the Marion Town House.

By Jean Perry

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