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August 24, 2006
State Disappointed In Federal Court Decision Striking Down Tobacco Product Sampling Ban

OLYMPIA --- State officials today expressed their disappointment with the U.S. District Court's ruling striking down the tobacco product sampling ban passed during the 2006 legislative session.

"This important state law was designed to keep free cigarettes, free chewing tobacco, and other free tobacco products from easily winding up in the hands of our children," said state Attorney General Rob McKenna, the newly appointed co-chair of the National Association of Attorneys General Tobacco Committee. "We will be reviewing the decision carefully with sampling ban supporters and considering all our options as to the next steps in this litigation."

"Handing out cigarettes or other forms of tobacco encourages smoking among young people," said Governor Chris Gregoire. "I will continue to work with Attorney General McKenna to ensure that common sense public policy is not overturned by tobacco lobbyists."

Passage of the tobacco sampling legislation (Senate Bill 5048 (Chapter 14, Laws of 2006) was a high-point in the legislative career of Sen. Bob Oke, R-Port Orchard. Effective June 7, the new law prohibited distributing free samples of tobacco products in Washington state, and it is enforced by the Liquor Control Board.

"We know these samples are getting into the hands of young people and leading many to a lifetime of addiction," Oke said. "This is the most important bill I've sponsored. Sampling can take place in several places at once. This makes it impossible for the Liquor Control Board to police."

R.J. Reynolds Tobacco Company sued the state in federal court in Tacoma, seeking to enjoin the new law. The company argued the state could not pass the state sampling ban because a 1965 federal law, the Federal Cigarette Labeling and Advertising Act (FCLAA), preempted all state efforts to limit the promotion of cigarettes.

The court agreed with the company that the distribution of samples was a "promotional" activity covered by the federal law. In his August 24 decision, U.S. District Court Judge Franklin D. Burgess enjoined enforcement of the state's tobacco sampling ban entirely, finding that the "clear and express language of the FCLAA preempts any state law that imposes a prohibition based on smoking and health with respect to advertising and promotion of any cigarettes."

The case is R.J. Reynolds Tobacco Co. v. McKenna, Merritt D. Long, Vera Ing, and Roger Hoen, U.S. District Court No. C06-5223.

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Contact: Janelle Guthrie, AG Media Relations Director, (360) 586-0725


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