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New Yorkers who purchase theircigarettes online may be saved from a New York statute which would end
Internet tobacco sales to New York consumers. OLTRA (the Online Tobacco
Retailers Association), announced that OLTRA 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 section 1399-ll declared
unconstitutional.
The statute was originally scheduled to take effect on November 14, 2000,
but was challenged in October 2000 by two cigarette manufacturers who claimed
that the statute violated the Commerce Clause of the United States
Constitution. The United States District Court for the Southern District of
New York ruled in their favor, enjoining enforcement of the statute. The
State appealed, and on February 13, 2003, the United States Court of Appeals
for the Second Circuit reversed the decision of the District Court and upheld
the Statute against the legal challenges raised by those plaintiffs.
In the suit filed yesterday, OLTRA, along with an Indian tobacco retailer,
online tobacco retailers located outside New York State, and two disabled
consumers, have raised new constitutional challenges against the statute

They contend that the statute discriminates against both out-of-state online
tobacco retailers and Indian retailers, to the benefit of local convenience
stores.
"The New York statute clearly discriminates against our members, some of
whom are Indian retailers in the state of New York. Additionally New York
residents will be deprived of the freedom to purchase tobacco on the
Internet," said Ali Davoudi, President of OLTRA. "OLTRA, as the industry
trade association, has promulgated a series of age verification requirements
that it is enforcing among its members, including a prohibition against sales
to individuals under the age of 21. These requirements are strictly enforced
and ensure that the risk of sale of tobacco products by our members to minors
is minimized."

 

 

A Senate bill (S. 1177) on this issue passed by unanimous consent in the closing moments of the last session after the bills sponsors, Senate Judiciary Committee Chairman Orrin Hatch (R-Utah) and committee member Sen. Herb Kohl (D-Wis.), worked out a compromise with the chairman of the Senate Indian Affairs Committee, Sen. Ben Nighthorse Campbell (R-Colo.), and the panels ranking Democrat, Sen. Daniel Inouye (Hawaii), over provisions that would affect Indian tribes.Campbell and Inouye voiced concerns raised by tribes that the bill would broaden states abilities to enforce laws on Indian lands.
We''re not opposed to enforcement of tobacco taxes, said John Dossett, a lobbyist for the National Congress of American Indians. Were objecting to state governments enforcing federal laws in Indian country.

Lobbyists and congressional aides expect tribal issues to dominate debate over the House bill much as they did on the Senate side. The 2002 GAO report found that 59 percent of the Internet tobacco sites surveyed with Web addresses such as www.notaxsmokes.com and www.senecasmokeshop.com were connected with Indian tribes.

Rep. Richard Pombo (R-Calif.), chairman of the House Resources Committee, which has jurisdiction over Indian

Backers of Green-Meehan would like to avoid Resources, where they expect the bill to be modified to favor tribes.In the Senate, the Judiciary and Indian Affairs committees were able to achieve agreement among tribes, public health groups and industry representatives by inserting language explicitly stating that the bill would not alter tribal sovereignty and by placing a greater emphasis on federal enforcement over state enforcement.

We think the bill passed by the Senate is a good, strong bill that will address tobacco-tax evasion and prevent and reduce underage smoking, said Eric Lindblom, manager for policy research at the Campaign for Tobacco-Free Kids. Public-health groups favor enforcing state tobacco taxes to discourage smoking through higher prices.

A spokesperson for Meehan said that he was hoping to work out an agreement with tribal groups either during consideration of the bill in the Judiciary Committee or during conference. He also wanted to add a provision that elevated the penalty for violations of the Jenkins Act which allows states to enforce tobacco excise taxes from a misdemeanor to a felony, which would parallel a measure in the Senate-passed bill.

 

The Senate bill contained provisions that would ban commercial shipping of tobacco products through the U.S. mails and would require private shippers such as United Parcel Service and FedEx to verify that appropriate state taxes had been paid on tobacco shipments.