Five Eastchester shops that sell vape products are challenging the validity of the town’s e-cigarette law.
Eastchester Tobacco and Vape Inc. on Mill Road and four gas station shops sued the town, the police department, Town Supervisor Anthony S. Colavita, and the town board, Aug. 19 in U.S. District Court, White Plains.
“Extensive federal and state regulatory schemes concerning e-cigarettes and vapor products leave no room for Eastchester to legislate in this field,” the complaint states, “and accordingly the local law is preempted.”
Colavita proposed the law in August 2019, according to the complaint. A public hearing was held one day after Labor Day, no one from the public attended, no one debated the law, and the board — Colavita, Joseph Dooley, Luigi Marcoccia, Theresa Nicholson and Sheila Marcotte — “just rubber-stamped the bill.”
The law went into effect six months later, but for a year-and-a-half — until this past spring — it was not enforced.
Since then, the shops claim, they have been ticketed and threatened with being ticketed for selling legal products.
The local law bans the sale of electronic nicotine delivery products, according to the complaint, and includes lozenges, candy and drinks that contain nicotine, as well as components such as batteries and coils.
The vape shops argue that the town has exceeded its regulatory authority. The federal Tobacco Control Act of 2009 gives the U.S. Food and Drug Administration authority over tobacco products.
Congress’s intent, according to the complaint, was to establish uniform national standards and allow availability of certain tobacco products for adults addicted to nicotine.
The federal law constrains state and local governments from establishing their own tobacco regulations, but it allows states to determine how the products are sold and distributed.
New York licenses vape dealers. It restricts sales to adults over the age of 21; bans flavored products; imposes a 20% sales tax; requires extensive labeling; and regulates how the products are advertised.
The intent of the state law, according to the complaint, is “to keep e-cigarettes and vapor products out of the hands of youth.”
Eastchester also meant to curb nicotine use by young people but instead, according to the complaint, the law is “hopelessly vague and contradictory” and leaves police and town officials “with unbridled discretion to interpret the local law.”
Eastchester could have increased enforcement against illegal sales to minors, the shops argue, but instead the town banned legal products.
The vape shops are asking the court to stop Eastchester from enforcing the local law. They want the law declared preempted by federal and state laws, and declared unconstitutional both for violating free speech rights under the First Amendment (for forbidding communications about the products) and for violating due process rights under the Fourteenth Amendment.
Colavita and the town’s legal department did not respond to an email asking for their side of the story.
The gas station shops include Eastchester Service Station, Eastchester Service Center and Scarsdale Auto Clinic, all on White Plains Road, and Chestnut Marts Inc. on New Rochelle Road in the Bronxville section of Eastchester. At least two of the shops are affiliated with CPD Energy Corp., New Paltz.
They are represented by West Harrison attorney Benjamin M. Rattner.
