(2008)

¶1Dear Peter Franchot

¶2You 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.

¶3In our opinion, the proposed regulation is not preempted by State law.

¶4

¶5 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;

¶6 B. a retailer from selling, reselling, distributing, dispensing, or giving *150 away to any person a package of cigars unless in the original packaging from the product manufacturer; and

¶7 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.

¶8See Baltimore City Health Department, Proposed Regulation Banning theSale 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.

¶9Explaining the need for the regulation, the Health Commissioner noted that, although State law requires the sale of cigarettes in packs of 20 or more, ² no similar State law addresses the 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.

¶10

¶11There 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.

¶12There 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 Advertisingof Baltimore, Inc. v. Mayor and City Council of Baltimore,862 F. Supp. 1402, 1420-21 (D.M d. 1994), aff'd, 63 F.3d 1318, 1324-25 (4^th Cir. 1995), vacated and remanded on othergrounds, 518 U.S. 1030 (1996), adopted as modified on othergrounds, 101 F.3d 332 (4^th Cir. 1996) (local ordinance concerning cigarette advertising not preempted by State law underAllied 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").

¶13In contrast to the extensive regulation of cigarettes under the Commercial Law Article³ and Title 16 of the Business Regulation 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 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).⁴ While not itself 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/Se n ate B ill 2 3 (20 07 Special Session); House Bill 609 (2008).

¶14In 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:

¶15 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.

¶1678 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).

¶17With 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 *153 as Baltimore City, from exercising its authority to regulate the sale of cigars in packages of less than five.⁵

¶18

¶19 Douglas F. Gansler Attorney General

¶20 Brian Oliner Assistant Attorney General

¶21 Robert N. McDonald Chief CounselOpinions and Advice

¶22¹ Baltimore City Code, Health Article, §§ 2-104, 2-105(5), and 5-101(b).

¶23²See Annotated Code of Maryland, Commercial Law Article, § 11-5A-01et seq.

¶24³See Annotated Code of Maryland, Commercial Law Article, § 11-501et seq. (Cigarette Sales Below Cost Act), § 11-5A-01 et seq. (restricting sales of cigarettes to packs of at least 20 cigarettes).

¶25⁴ The proposed City regulation would not affect the applicable tax or the collection and remission of that tax. Nor is it at odds with the State restrictions on vending machines or sales to minors.

¶26⁵ We express no opinion as to the Health Commissioner's regulatory 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.*154