Could a Maryland charter county or town require tobacco products to be kept behind the counter in 2000?

Plain-English summary

A Maryland delegate asked whether a charter county or municipality could require licensed tobacco retailers to keep tobacco products behind counters, in overhead racks, or in locked cases, with exclusions for vending machines and tobacco specialty stores. The Attorney General agreed in 2000 that this proposed ordinance fell within local police power and was not barred by the cited federal labeling law, the First Amendment, or implied state preemption under the stated vending machine condition.

The official PDF says the proposed ordinance “would be within the police power of a charter county or municipality” and “would not be preempted by Section 5(b) of the Federal Cigarette Labeling and Advertising Act.”

Currency note

This opinion was issued in 2000. 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: Did the 2000 AG say local governments could require behind the counter tobacco displays? A: Yes, for the proposed form of ordinance described in the request, with the stated exemptions.

Q: Why does the vending machine exception matter?
A: The signed opinion expressly conditioned its conclusion about implied state preemption on excluding vending machines.

Background and statutory framework

The PDF is a short signed opinion agreeing with two earlier advice letters. It identifies 15 U.S.C. §1334(b), the First Amendment, and state implied preemption as issues considered. The public PDF directs readers to request the attached letters rather than including them, so this page reports only the signed opinion's stated conclusions.

Citations and references

• 15 U.S.C. §1334(b), the federal labeling law provision identified in the opinion.

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/search-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/2000/00-033.pdf

Original opinion text

Cite as: Opinion No. 00-033 (December 18, 2000)] (unpublished)

TOBACCO REGULATION ) COUNTIES ) MUNICIPALITIES ) LOCAL ORDINANCE REGULATING DISPLAY OF TOBACCO PRODUCTS NOT PREEMPTED BY STATE OR FEDERAL LAW

December 18, 2000

The Honorable Shane Pendergrass
Maryland Delegate

You have asked whether a charter county or municipality may require licensed tobacco retailers to display tobacco products only in an area that is normally inaccessible to customers, such as an area behind the counter, in an overhead rack, or in a locked case, if the proposed law provides an exemption for vending machines and stores specializing in tobacco products.

The question that you pose was addressed in a recent letter of advice by Assistant Attorney General Kathryn M. Rowe dated October 25, 2000, as well as in an earlier letter of advice dated July 14, 1999, by Assistant Attorney General Robert A. Zarnoch. Copies of both letters are attached.

Ms. Rowe and Mr. Zarnoch concluded that such an ordinance would be within the police power of a charter county or municipality. In addition, they concluded that such an ordinance would not be preempted by Section 5(b) of the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. §1334(b), or barred by the First Amendment. Nor would it be

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impliedly preempted by State law, if vending machines were excluded from the ordinance. We have carefully reviewed their analysis and agree with those conclusions.

J. Joseph Curran, Jr.
Attorney General

Robert N. McDonald
Chief Counsel
Opinions & Advice

For a copy of the attachments email: [email protected]