Gen. 149] 149

 Baltimore City Code, Health Article, §§2-104, 2-105(5), and 5- 1

101(b).

TOBACCO REGULATION

BALTIMORE CITY – WHETHER BALTIMORE CITY HEALTH CODE

REGULATION CONCERNING SALES OF CHEAP CIGARS IS

PREEMPTED BY STATE LAW

October 8, 2008

The Honorable Peter Franchot

Comptroller of Maryland

You have asked our opinion whether a proposed Baltimore

City regulation prohibiting the sale of cigars in packages of less than

five would be preempted by State law.

In our opinion, the proposed regulation is not preempted by

State law.

I

Background

Your request was prompted by a proposed Baltimore City

Health Department regulation. Citing to his authority under the

Baltimore City Health Code, the Baltimore City Health 1

Commissioner determined that cheap, individually sold cigars pose

a public health hazard and nuisance. Pursuant to §2-106 of the

Baltimore City Health Code, he proposed to adopt a regulation

banning the sale of cheap cigars in very small quantities. The

proposed regulation would prohibit:

A. a retailer from purchasing from a

tobacco product manufacturer or

wholesaler or sell, resell, distribute,

dispense, or give away to any person

a package of cigars containing less

than 5 cigars;

B. a retailer from selling, reselling,

distributing, dispensing, or giving
150 [93 Op. Att’y

 See Annotated Code of Maryland, Commercial Law Article, §11-5A- 2

01 et seq.

away to any person a package of

cigars unless in the original

packaging from the product

manufacturer; and

C. a wholesaler from selling, reselling,

distributing, dispensing, or giving

away to any person in Baltimore City

a package of cigars containing less

than 5 cigars.

See Baltimore City Health Department, Proposed Regulation

Banning the Sale of Single Cheap Cigars in Baltimore City (May 28,

2008) at p.10. Excepted from the regulation are tobacconists and

premium cigars that are rolled in whole leaf tobacco and sold for at

least $2 each at wholesale. Id. 

Explaining the need for the regulation, the Health

Commissioner noted that, although State law requires the sale of

cigarettes in packs of 20 or more, no similar State law addresses the 2

sale of cigars. Id. at 1. As a result, according to the Health

Commissioner, individual cigars are sold widely in Baltimore City.

He noted that vendors often open packages of 5 or 20 cigars and sell

the contents individually. Id. He suggested that the availability of

cheap cigars in small quantities is responsible in part for a national

trend of increased use of cigars by young people, in contrast to a

decline in cigarette use by the same age group over the same period

of time. Id. at 4-8.

II

Preemption Analysis

You have asked whether the proposed City ordinance is

preempted by State law. The doctrine of preemption is predicated on

the ground that the General Assembly may reserve to itself exclusive

dominion over an entire field of legislative concern. As we recently

noted, a local law may be preempted by State law expressly, by

conflict, or by implication. 93 Opinions of the Attorney General

126, 130 (2008). 
Gen. 149] 151

 See Annotated Code of Maryland, Commercial Law Article, §11-501 3

et seq. (Cigarette Sales Below Cost Act), §11-5A-01 et seq.(restricting

sales of cigarettes to packs of at least 20 cigarettes).

There is no express provision in State law prohibiting a local

jurisdiction from enacting a health regulation related to cigars.

Neither is there any State law or regulation that is in direct conflict

with the proposed City regulation. Thus, the answer to your

question depends on whether or not the proposed regulation is

implicitly preempted by State law.

There is preemption by implication when an entire field of law

is comprehensively occupied by legislative action by the General

Assembly. See Allied Vending, Inc. v. City of Bowie, 332 Md. 279,

631 A.2d 77 (1993). For example, in Allied Vending, two

municipalities had enacted ordinances restricting the location of

State-licensed cigarette vending machines. The Court of Appeals

extensively reviewed the “comprehensive provisions” in State law

regulating the sale of cigarettes through vending machines in

Maryland. 332 Md. at 288-94. It held that “in light of the

comprehensive state-licensing scheme for cigarette vending

machines provided [in State statutes], ... the sale of cigarettes

through cigarette vending machines is one of those ‘area[s] in which

the Legislature has acted with such force that an intent by the State

to occupy the entire field must be implied....’” Id. at 300 (citations

omitted). However, the Court’s holding in Allied Vending does not

preclude all local regulation of tobacco products. See Penn

Advertising of Baltimore, Inc. v. Mayor and City Council of

Baltimore, 862 F. Supp. 1402, 1420-21 (D.Md. 1994), aff’d, 63 F.3d

1318, 1324-25 (4 Cir. 1995), vacated and remanded on other th

grounds, 518 U.S. 1030 (1996), adopted as modified on other

grounds, 101 F.3d 332 (4 Cir. 1996) (local ordinance concerning th

cigarette advertising not preempted by State law under Allied

Vending); 78 Opinions of the Attorney General 359, 362 (1993)

(“Allied Vending itself neither holds nor suggests that any other kind

of tobacco-related local enactment is preempted by State law”). 

In contrast to the extensive regulation of cigarettes under the

Commercial Law Article and Title 16 of the Business Regulation 3

Article (“BR”) and the corresponding regulations, there is relatively

little regulation of the sale of “other tobacco products,” a category

that includes cigars, under State law. Apart from the imposition of

taxes and the prohibition on sales to minors, the General Assembly

has not extended State regulation of tobacco products to encompass

sales of cigars. See Annotated Code of Maryland, Tax-General
152 [93 Op. Att’y

 The proposed City regulation would not affect the applicable tax or 4

the collection and remission of that tax. Nor is it at odds with the State

restrictions on vending machines or sales to minors.

Article, §12-101(c) (cigars included in definition of “other tobacco

products” for purposes of taxation); BR §16-3A-01(c) (cigars

included in definition of “tobacco product” for purposes of State law

limiting access of minors to tobacco product vending machines);

Criminal Law Article, §§10-107, 10-108 (prohibiting sales of

“tobacco products,” including cigars, to minors). While not itself 4

dispositive of the question of preemption, it is notable that the

General Assembly recently declined to enact proposed legislation

that would have specifically regulated the sale of cigars in small

quantities. See House Bill 20/Senate Bill 23 (2007 Special Session);

House Bill 609 (2008). 

In analogous circumstances, prior opinions of this Office have

analyzed whether local ordinances restricting smoking in public

places or in private residences would be preempted by State law. A

1993 opinion surveyed the “disparate group” of State statutes

restricting smoking and concluded:

The Legislature has simply not addressed

the question of smoking in a host of public

places not encompassed by any of these

enactments. We discern no evidence of

legislative intent to preclude local

governments with home rule power from

exercising that authority as to the unaddressed

problem of smoking in public places

generally.

78 Opinions of the Attorney General 359, 372-73 (1993). A similar

conclusion was reached as to local regulation of smoking in private

residences. 87 Opinions of the Attorney General 167 (2002). 

With respect to sales of cigars, there is “no indicia of a

legislative purpose to preempt an entire field,” nor has the General

Assembly “acted with such force that an intent by the State to

occupy the entire field must be implied.” Allied Vending, Inc., 332

Md. at 299, 300 (citations omitted). In our view, the General

Assembly has not preempted local regulation by implication.

Accordingly, the limited regulation of the sale of cigars under State

law does not prevent a local jurisdiction with home rule power, such
Gen. 149] 153

 We express no opinion as to the Health Commissioner’s regulatory 5

authority under the City Charter or ordinances – an issue of local law on

which we traditionally defer to the opinion of the attorney for the local

jurisdiction.

as Baltimore City, from exercising its authority to regulate the sale

of cigars in packages of less than five.5

III

Conclusion

In our opinion, the proposed regulation is not preempted by

State law.

Douglas F. Gansler

Attorney General

Brian Oliner

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice