Can a New York county ban all free tobacco product samples within its borders, despite state law that allows some distribution at private functions and trade shows?

Plain-English summary

Rockland County was considering a local law that would ban distribution of free promotional samples of tobacco products to anyone within the county. State law (Public Health Law § 1399-bb) addressed the same topic but allowed sampling at private social functions, conventions, and trade shows under controlled conditions. The county attorney asked whether Rockland could enact its complete county-wide ban anyway.

The AG said no. The Adolescent Tobacco-Use Prevention Act (L. 1992, ch. 799) included an unusually direct preemption clause: "The provisions of sections 1399-bb of article 13-F of the public health law as added by section three of this act, shall govern and take precedence over the provisions of any local law, ordinance, rule, regulation, resolution, charter or administrative code hereafter enacted by any political subdivision of the state." That language closed the door on local laws on this subject.

The Court of Appeals had already enforced the preemption clause in Vatore v. Commissioner of Consumer Affairs. Vatore involved a different section of article 13-F (§ 1399-dd, on vending machine placement) and concluded the broader Act did not preempt the field by implication. But the court explicitly described § 1399-bb's preemption clause as a "narrow express preemption provision" with preclusive effect.

Because the proposed Rockland County ban would prohibit distribution that the state expressly allowed at private functions and trade shows, the local law conflicted with the state scheme and was preempted. Home rule did not save it.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How does express preemption differ from implied preemption in New York?
A: Express preemption is on the face of the statute. The Legislature includes a clause stating that the state law overrides any inconsistent local law. Implied preemption is judicial inference from a declaration of state policy or from a comprehensive regulatory scheme. The AG cited Gernatt Asphalt Prods. and New York State Club Assoc. for those two paths.

Q: Why did the legislature preempt local action here?
A: The Adolescent Tobacco-Use Prevention Act was a coordinated state policy on access to tobacco products by minors. Allowing each county to pile on extra restrictions would have produced a patchwork that the legislature wanted to avoid. The AG cited the Court of Appeals' reading in Vatore for the preemptive scope.

Q: Could Rockland County have done anything to address tobacco sampling?
A: Not by direct prohibition of distribution under § 1399-bb. Other tools (zoning, restrictions on retailers, public-event permitting requirements) might survive depending on how they were drawn, but a flat county-wide sampling ban was off limits.

Q: What does § 1399-bb permit and prohibit?
A: It generally bans the distribution of free tobacco product samples in public places, with carve-outs for private social functions, conventions, and trade shows complying with the statute. The Rockland proposal would have removed those carve-outs within the county.

Q: Did the AG comment on whether the state law was a good policy?
A: No. The opinion focused on the preemption question only. Rockland would have to take its policy disagreement to Albany.

Background and statutory framework

The Adolescent Tobacco-Use Prevention Act, enacted as Laws of 1992, ch. 799, added article 13-F to the Public Health Law. Article 13-F contains several discrete prohibitions and registration requirements, including § 1399-bb (free tobacco sample distribution), § 1399-cc (sales to minors), and § 1399-dd (vending machine placement). The Act's section 6 contains the express preemption clause limited to § 1399-bb specifically.

In Vatore v. Commissioner of Consumer Affairs, 83 N.Y.2d 645 (1994), the Court of Appeals addressed whether a New York City ordinance restricting vending machine placement was preempted. The court held it was not, because the Act's overall scheme did not occupy the field and the preemption clause did not reach § 1399-dd. But the court explicitly characterized § 1399-bb's preemption clause as narrow and express.

The AG's opinion applies Vatore's reading: a county may not regulate free tobacco sample distribution because the state has occupied that specific corner of the field. The general home rule and police power authority in N.Y. Const. art. IX, § 2(c) and Municipal Home Rule Law § 10(1)(ii)(12) yields to express state preemption.

Citations and references

Statutes and constitutional provisions:

• N.Y. Const. art. IX, § 2(c) (home rule)
• Municipal Home Rule Law § 10(1)(ii)(12) (police power authority)
• Public Health Law art. 13-F, § 1399-bb (free tobacco sample distribution)
• L. 1992, ch. 799 (Adolescent Tobacco-Use Prevention Act, with § 6 preemption clause)

Cases:

• Vatore v. Commissioner of Consumer Affairs, 83 N.Y.2d 645 (1994) (express preemption clause and § 1399-bb)
• New York State Club Assoc. v. New York, 69 N.Y.2d 211 (1987) (home rule and preemption framework)
• Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668 (1996) (express vs. implied preemption)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2002-15_pw.pdf

Original opinion text

N.Y. CONST., ART. IX, § 2(c); MUNICIPAL HOME RULE LAW § 10(1)(ii)(12); PUBLIC HEALTH LAW, ART. 13-F, § 1399-bb; L. 1992, CH. 799.

Proposed local legislation that would institute a complete ban on the distribution of free promotional samples of tobacco products to any person within a county, is expressly preempted by section 1399-bb of the Public Health Law, which governs the distribution of tobacco products without charge.

September 19, 2002

Charles Apotheker, Esq.
County Attorney
County of Rockland
Department of Law
Allison-Parris County Office Building
11 New Hempstead Road
New City, New York 10956

Informal Opinion
No. 2002-15

Dear Mr. Apotheker:

You have inquired whether a proposed Rockland County local law instituting a complete ban on the distribution of free promotional samples of tobacco products to any person within Rockland County is preempted by section 1399-bb of the Public Health Law of the State of New York, entitled "Distribution of tobacco products or herbal cigarettes without charge", which also bans such distribution, but includes a number of exceptions to its general prohibition, such as allowing distribution at private social functions and conventions and trade shows in compliance with the statute. We conclude, based on an express preemption provision applicable to section 1399-bb and a New York Court of Appeals decision recognizing the provision's preemptive effect, that section 1399-bb expressly preempts the proposed Rockland County law.

The New York Constitution's home rule provision confers broad police powers upon local governments relating to the welfare of their citizens. See N.Y. Const. art. IX, § 2(c); see also Municipal Home Rule Law § 10(1)(ii)(12). However, it places two firm restrictions on the use of these powers: (1) the local government may not exercise its police power by adopting a local law inconsistent with constitutional or general law; and (2) the local government may not exercise its police power inconsistent with the State's interest, when the Legislature has restricted such an exercise by preempting the area of regulation. See New York State Club Assoc. v. New York, 69 N.Y.2d 211, 217 (1987). Such preemption can either be express or implied. The former occurs when the State Legislature expressly assumes full regulatory responsibility in a field by including a preemption clause in a statute. See generally Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 680-681 (1996). Implied preemption occurs where "the Legislature has impliedly evinced its desire to [preempt the field] and that desire may be inferred from a declaration of state policy by the Legislature or from the legislative enactment of a comprehensive and detailed regulatory scheme in a particular area." New York State Club Assoc., 69 N.Y.2d at 217.

Section 1399-bb, the provision at issue here, is part of The Adolescent Tobacco-Use Prevention Act (Public Health Law art. 13-F, L. 1992, ch. 799) ("the Act"). Chapter 799, § 6 contains an express preemption provision which provides: "The provisions of sections 1399-bb of article 13-F of the public health law as added by section three of this act, shall govern and take precedence over the provisions of any local law, ordinance, rule, regulation, resolution, charter or administrative code hereafter enacted by any political subdivision of the state." This provision preempts a local law such as the one you are considering governing the distribution of tobacco products without charge.

Moreover, in Vatore v. Commissioner of Consumer Affairs, 83 N.Y.2d 645, 650 (1994), the Court analyzed the preclusive effect of a different section of article 13-F of the Public Health Law, section 1399-dd, which concerns the placement of tobacco product vending machines. The Court found that while the Act had no general, implied preemptive intent, it did contain "a narrow express preemption provision . . . giving preclusive effect to section 1399-bb of article 13-F, governing the distribution of tobacco products without charge." Id. The Court of Appeals, pursuant to the expressly preclusive language in Chapter 799, § 6, has recognized that section 1399-bb preempts local legislation regarding distribution of tobacco products without charge. See Vatore, 83 N.Y.2d at 651.

In sum, because the proposed local legislation would prohibit conduct which the State would allow, the proposed Rockland County legislation is expressly preempted by section 1399-bb of the Public Health Law, which governs the distribution of tobacco products without charge. See Vatore, 83 N.Y.2d at 649. Thus, Rockland County does not have the authority pursuant to its home rule power to enact the proposed law.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.

Very truly yours,

LAURA ETLINGER
Assistant Solicitor General
in Charge of Opinions

By:____
ALLISON PENN
Assistant Solicitor General