United States Court of Appeals
                       For the First Circuit

No. 13-1053

NATIONAL ASSOCIATION OF TOBACCO OUTLETS, INC.; CIGAR ASSOCIATION
   OF AMERICA, INC.; LORILLARD TOBACCO COMPANY; R.J. REYNOLDS
TOBACCO COMPANY; AMERICAN SNUFF COMPANY; PHILIP MORRIS USA INC.;
U.S. SMOKELESS TOBACCO MANUFACTURING COMPANY LLC; U.S. SMOKELESS
        TOBACCO BRANDS INC.; and JOHN MIDDLETON COMPANY,

                       Plaintiffs-Appellants,

                                 v.

  CITY OF PROVIDENCE, RHODE ISLAND; PROVIDENCE BOARD OF LICENSES;
PROVIDENCE POLICE DEPARTMENT; MICHAEL A. SOLOMON, Providence City
    Council President, in his official capacity; STEVEN M. PARÉ,
 Commissioner of Public Safety for the City of Providence, in his
official capacity; and ANGEL TAVERAS, Mayor of Providence, in his
                         official capacity,

                       Defendants-Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                               Before

                   Torruella, Dyk* and Thompson,
                          Circuit Judges.



     Michael J. Edney, with whom Miguel A. Estrada, Gibson Dunn &
Crutcher LLP, Noel J. Francisco, Jones Day, Joel Kurtzberg, Floyd
Abrams, Cahill Gordon & Reindel LLP, Kenneth J. Parsigian, Latham
& Watkins LLP, James R. Oswald, Kyle Zambarano, Adler, Pollock &
Sheehan P.C., Gerald J. Petros, Adam M. Ramos, and Hinckley, Allen


     *
      Of the Federal Circuit, sitting by designation.
& Snyder LLP, were on brief, for the appellants.
     Anthony F. Cottone, with whom Jeffrey M. Padwa and Matthew T.
Jerzyk were on brief, for appellees.
     Donald A. Migliori, with whom Vincent I. Parrett and Motley
Rice LLC were on brief, for amici curiae American Academy of
Pediatrics-RI Chapters, et al.
     Raymond A. Marcaccio, with whom Oliverio & Marcaccio, LLP,
Seth Mermin, Thomas C. Bennigson, and Public Good Law Center were
on brief, for amicus curiae Tobacco Control Legal Consortium.
     Jacqueline G. Kelly, Administrator of Legal Services, Rhode
Island Executive Office of Health and Human Services, with whom
Thomas J. Corrigan, Jr., Senior Legal Counsel, Rhode Island
Executive Office of Health and Human Services, was on brief, for
amicus curiae Rhode Island Department of Health.



                       September 30, 2013




                               -2-
        DYK, Circuit Judge. This case involves two ordinances enacted

by the City of Providence, Rhode Island, (the “City”) to reduce the

incidence of tobacco use by young people.               The ordinances (1)

restrict the City’s tobacco and cigarette retailers from reducing

prices on tobacco products by means of coupons and certain multi-

pack discounts (the “Price Ordinance”); and (2) restrict sales of

certain    flavored   tobacco    products    other   than   cigarettes    (the

“Flavor Ordinance”).      The National Association of Tobacco Outlets,

et al. (collectively “National Association”), contends that the

Price    Ordinance    violates   the    First   Amendment    and   that    both

ordinances are preempted by federal and state law.             The district

court held that the ordinances were neither preempted nor otherwise

invalid.     We affirm.

                                       I.

        On January 5, 2012, the City of Providence adopted two

ordinances concerning the sale of tobacco products.                The Price

Ordinance     prohibits   licensed     retailers     from   “accept[ing]    or

redeem[ing], [or] offer[ing] to accept or redeem . . . any coupon

that provides any tobacco products without charge or for less than

the listed or non-discounted price,” and from “sell[ing] tobacco

products to consumers through any multi-pack discounts (e.g., ‘buy-

two-get-one-free’ [offers]).” Providence, R.I., Code of Ordinances




                                       -3-
§ 14-303.1     The Flavor Ordinance prohibits most retailers from

selling flavored tobacco products (other than cigarettes), such as

flavored “cigars, pipe tobacco, snuff, chewing tobacco, dipping

tobacco,” and other flavored tobacco products.      Id. § 14-309.   It

provides that “[i]t shall be unlawful for any person to sell or


     1
             The Price Ordinance provides, in relevant part:
          No person who holds a license issued under this article,
     nor any employee or agent of same, shall:
             (1) accept or redeem, offer to accept or redeem, or cause
             or hire any person to accept or redeem or offer to accept
             or redeem any coupon that provides any tobacco products
             without charge or for less than the listed or non-
             discounted price; or
             (2) accept or redeem, offer to accept or redeem, or cause
             or hire any person to accept or redeem or offer to accept
             or redeem any coupon that provides any cigarettes without
             charge or for less than the listed or non-discounted
             price; or
             (3) sell tobacco products to consumers through any multi-
             pack   discounts   (e.g.,   “buy-two-get-one-free”)    or
             otherwise provide or distribute to consumers any tobacco
             products without charge or for less than the listed or
             non-discounted price in exchange for the purchase of any
             other tobacco product; or
             (4) sell cigarettes to consumers through any multi-pack
             discounts (e.g., “buy-two-get-one-free”) or otherwise
             provide or distribute to consumers any cigarette without
             charge or for less than the listed or non-discounted
             price in exchange for the purchase of any other
             cigarette.
Id. Though the language of the Price Ordinance does not expressly
reference a ban on offers for multi-pack discounts, the parties are
in agreement that the Price Ordinance bans both coupon and multi-
pack price offers.    See Appellant’s Br. 29; Appellee’s Br. 34
(noting that “specific offers to redeem coupons or consummate
multi-pack discount offers in the City” constitute “activity
regulated by the Price Ordinance”).

                                  -4-
offer for sale any flavored tobacco product to a consumer, except

in a smoking bar.”     Id.2

     The history of the Providence City Council’s (the “Council’s”)

consideration of these ordinances demonstrates that they were

designed to reduce youth tobacco use.               The Councilperson who

sponsored    the    ordinances   urged    that   they   would   reduce   the

“unacceptably high rate of youth smoking in the City.”           J.A. 492.

The Council President stated that the ordinances reflected a “pro-

active approach to try to protect our youth from the dangers of

nicotine.”    J.A. 525.

     The council heard testimony that, despite prior efforts to

curb teen smoking, 20% of high school students and 10% of middle

school students in Providence had tried tobacco. During compliance

checks conducted immediately before the ordinances were passed,

roughly one in five Providence retailers sold cigarettes to minors

(in violation of state and local laws), and 85% of Providence

retailers    were   selling   flavored    tobacco    products   other    than

cigarettes.     Over 90% of new smokers begin prior to the age of

eighteen.     The testimony and data submitted to the City Council

showed that (1) youth are particularly sensitive to tobacco price


     2
          The Flavor Ordinance defines “flavored tobacco product,”
in relevant part, as “any tobacco product or any component part
thereof that contains a constituent that imparts a characterizing
flavor.”   Id. (emphasis added).      The definition of “tobacco
product” in the Flavor Ordinance expressly excludes cigarettes.
See id.


                                    -5-
increases; and (2) such youth are vulnerable to non-cigarette

flavored   tobacco    products.3    The     Council    concluded   that   the

ordinances would be effective measures to combat youth tobacco use.

     On February 13, 2012, shortly after the Council passed the

ordinances, National Association filed suit in district court

alleging that the ordinances violated both federal and state law.

Its complaint alleged, inter alia, that both ordinances violated

the First Amendment because they were impermissible regulations of

commercial speech; that the Price Ordinance was preempted by the

Federal Cigarette Advertising and Labeling Act (the “Labeling

Act”), 15 U.S.C. § 1334(b); that the Flavor Ordinance was preempted

by   the   Family    Smoking   Prevention     and     Tobacco   Control   Act

(“FSPTCA”), 21 U.S.C. § 387p(a)(2)(A); and that, under state law,


     3
          See J.A. 518 (testimony of Matthew Stark indicating that
youth are “more sensitive to price increases”); United States v.
Philip Morris USA, Inc., 

, 639-40 (D.D.C. 2006)
(collecting evidence of youth price sensitivity to discounting and
concluding that tobacco manufacturers’ “price-related marketing
efforts, including coupons, multi-pack discounts, and other retail
value added promotions, have partially offset the impact of higher
list   prices   for   cigarettes,   historically   and   currently,
particularly with regard to young people”), further proceedings at

; id. at 640 (finding that, because tobacco
manufacturers “fully recognize[]” the “impact of price on youth
initiation,” “there is no question that this enormously successful
marketing technique had a significant effect on youth smoking
incidence”); id. at 640-45 (collecting evidence that tobacco
companies “long recognized young people’s price sensitivity” but
nonetheless “continue[d] to offer lower priced cigarettes which
contribute[d] to an increase in youth smoking”); see also Ctrs. for
Disease Control and Prevention, Preventing Tobacco Use Among Youth
and Young Adults 10 (2012) (“Tobacco companies lower prices through
coupons and other promotions so that consumers can afford to buy
their products. Teens are especially sensitive to pricing.”).

                                   -6-
the ordinances were also preempted and violated the licensing

provisions of the Rhode Island Constitution.        Both parties filed

motions for summary judgment.

      Along with its motion, the City submitted various affidavits,

including a declaration from an economics expert concluding that

“[e]xtensive economic research demonstrates that increases in

cigarette and other tobacco product prices are highly effective in

reducing cigarette smoking and the use of other tobacco products,

particularly among young people,” J.A. 530, and another from a

public health expert concluding that “the prohibition on the

redemption of coupons and multi-pack discounts as contained in the

Providence [Price Ordinance] . . . would most likely have a real

and   measurable   effect   on   smoking   behavior,”   particularly   in

decreasing smoking among young people.        J.A. 663.   The city also

submitted a 2012 report of the Surgeon General confirming that

“extensive use of price-reducing promotions has led to higher rates

of tobacco use among young people than would have occurred in the

absence of these promotions.”4     As to the Flavor Ordinance, another

declaration from a different public health expert concluded that

the “[Flavor Ordinance] would substantially reduce the sale of

flavored tobacco products to underage consumers and would reduce


      4
          United States Department of Health and Human Services,
Preventing Tobacco Use Among Youth and Young Adults: A Report of
the    Surgeon    General    527-29   (2012),    available    at
http://www.surgeongeneral.gov/library/reports/preventing-youth-
tobacco-use/full-report.pdf.

                                   -7-
the attractiveness of these products to underage consumers.”           J.A.

632.

       On December 10, 2012, in a thorough and well-reasoned opinion,

the district court denied National Association’s motion and granted

the    City’s   motion,   upholding   the   ordinances   in   all   relevant

respects.5      See Nat’l Ass’n of Tobacco Outlets, Inc. v. City of

Providence, No. 12-96-ML, 

 (D.R.I. Dec. 10, 2012).

National Association appealed.

                                      II.

                                      A.

       We first consider National Association’s challenge to the

validity of the Price Ordinance under the First Amendment.

National Association argues that the ordinance violates the First

Amendment because it bans protected commercial speech (or, at

minimum, expressive conduct) and does not survive scrutiny under

either Central Hudson Gas & Electric Corp. v. Public Service

Commission, 

 (1980), or United States v. O’Brien, 

 (1968).     The City argues that the Price Ordinance merely

       5
          Because that portion of the Flavor Ordinance defining
“characterizing flavor” excluded “tobacco, menthol, mint or
wintergreen” flavors from the ban, see Providence, R.I., Code of
Ordinances § 14-308, the district court struck language from the
statute that included a ban on “concepts such as spicy, arctic,
ice, cool, warm, hot, mellow, fresh, and breeze,” id., reasoning
that this language created confusion within the statute and needed
to be struck “in order to keep the Section 14-309 ban against the
sale of flavored tobacco products intact.” Nat’l Ass’n, 

, at *8.     The City has not appealed this ruling, and
National Association on appeal has not raised a First Amendment
challenge to the Flavor Ordinance.

                                      -8-
regulates pricing and not speech and that such price regulation

falls outside the ambit of the First Amendment.

     The district court agreed with the City, concluding that

National Association “fail[ed] . . . to establish that the practice

of reducing the price of cigarettes and tobacco products through

coupons and multi-pack discounts is subject to constitutional

protection.”    Nat’l Ass’n, 

, at *5 (citing Wine &

Spirits Retailers, Inc. v. Rhode Island, 

, 49 (1st Cir.

2005)).    It concluded that Central Hudson is inapplicable because

“Section 13-303 is a means to control the price of cigarettes and

tobacco    products     in   Providence     .   .    .    without   implicating

‘commercial speech,’” and that O’Brien is inapplicable because the

regulated conduct is not “inherently expressive.”                Id.   We agree

that the Price Ordinance does not violate the First Amendment.

     Pricing information concerning lawful transactions has been

held to be protected speech by the Supreme Court.                See Va. State

Pharmacy Bd. v. Va. Citizens Consumer Council, Inc., 

,

761-64 (1976).        But the ordinance here does not restrict the

dissemination of pricing information generally.                Nothing in the

Price     Ordinance     restricts     retailers      or    anyone    else     from

communicating pricing information concerning the lawful sale price

of cigarettes. Rather, the ordinance has more limited objectives.

It (1) restricts the ability of retailers to engage in certain

pricing    practices,    namely     accepting   or   redeeming      coupons    for


                                      -9-
tobacco purchases, and selling tobacco products by way of multi-

pack discounting, and (2) bars retailers from offering to engage in

these prohibited pricing practices.     See Providence, R.I., Code of

Ordinances § 14-303.    Neither type of regulation is barred by the

First Amendment.

     In 44 Liquormart, Inc. v. Rhode Island, 

 (1996),

a majority of the Justices, in striking down the categorical ban on

liquor price advertising there, made clear that price regulations

and other forms of direct economic regulation do not implicate

First Amendment concerns. In determining the views of the court as

a whole, we may aggregate the views expressed in the various

separate opinions.    See, e.g, League of United Latin Am. Citizens

v. Perry, 

, 413-14, 431-35 (2006); Moses H. Cone

Memorial Hosp. v. Mercury Constr. Corp., 

, 17 (1983).

The principal opinion (representing the views of four Justices)

explained that “alternative forms of regulation that would not

involve any restriction on speech” could have advanced the state’s

purported interest in that case.       44 Liquormart, 517 U.S. at 507

(Stevens, J.).    It noted that “higher prices can be maintained . .

. by direct regulation,” and that “[p]er capita purchases could be

limited.”   Id.

     Justice O’Connor, joined by three justices, in this respect

agreed with the principal opinion, explaining that the state had

“other methods at its disposal” to discourage liquor consumption


                                -10-
that included “establishing minimum prices.” Id. at 530 (O’Connor,

J., concurring in the judgment).         Following the principal opinion,

she    explained      that   these   alternative    measures      would   have

accomplished the state’s goals “without intruding on sellers’

ability       to   provide   truthful,    nonmisleading     information     to

customers.” Id. Justice Thomas, moreover, noted in his concurring

opinion that regulations that would “directly ban[] a product (or

. . . control[] its price . . .)” are the types of “regulation[s]

involving no restriction on speech regarding lawful activity at

all.” Id. at 524 (Thomas, J., concurring in part and concurring in

the judgment).       These views, expressed by a majority of the Court,

make       clear   that   price   regulations    designed    to    discourage

consumption do not violate the First Amendment.

       Nonetheless, National Association argues that certain sales

practices have an “inherently expressive” component that implicates

the First Amendment, and that this triggers O’Brien scrutiny.

National Association relies on Lorillard Tobacco Co. v. Reilly, 

 (2001).          There, the Supreme Court concluded that the

O’Brien test might apply to Massachusetts’ regulations of certain

tobacco sales practices, but ultimately held that these practices

withstood First Amendment Scrutiny.             See id. at 567-70.6        The


       6
          In   separate  portions   of   the  opinion   involving
restrictions on the location of outdoor and point-of-sale
advertising for smokeless tobacco and cigars, the Supreme Court
held that those restrictions violated the First Amendment under a
Central Hudson analysis. See Lorillard, 533 U.S. at 556-67.

                                     -11-
regulations were directed toward cigarette, smokeless tobacco, and

cigar retailers and “bar[red] the use of self-service displays and

require[d] that tobacco products be placed out of the reach of all

consumers in a location accessible only to salespersons.”           Id. at

567.       The Supreme Court recognized that these provisions regulated

conduct that “may have [had] a communicative component,” id. at

569, because the regulated activity pertained to the display and

dissemination of information to consumers.        But Lorillard did not

decide that the displays did in fact have a communicative component

or reject the views expressed in 44 Liquormart. We therefore agree

with the district court that the regulation of prices, without

more, does not rise to the level of regulation of “inherently

expressive” conduct subject to O’Brien scrutiny.         See Nat’l Ass’n,

, at *5.7

       Finally,     National   Association   argues   that   even   if   the

restrictions on pricing do not violate the First Amendment, the

       7
          National Association points to Discount Tobacco City &
Lottery, Inc. v. United States, 

 (6th Cir. 2012), which
applied the Central Hudson framework to restrictions on the
distribution of free samples of tobacco products and free gifts
associated with continuity programs.     The court held that “the
Act’s regulation of sampling and continuity programs [wa]s an
attempt to regulate the ‘communicative impact’ of the activity, not
the activity itself,” and held these regulations invalid. Id. at
539.   Similarly, National Association also relies on Bailey v.
Morales, 

 (5th Cir. 1999), which applied Central Hudson
to invalidate a ban on chiropractor solicitations via “distributing
promotional gifts and items,” resting on the communicative impact
of those solicitations. Id. at 321. We need not here consider the
persuasive value of those cases for they did not involve price
regulation, but rather the provision of free samples and
promotional gifts.

                                    -12-
ordinance’s restriction on offers to accept these coupons or to

engage in multi-pack discounting is barred by the First Amendment.

We disagree.     In Central Hudson, the Supreme Court made clear that

“[t]he government may ban . . . commercial speech related to

illegal activity.”      447 U.S. at 563-64; see also Pittsburgh Press

Co. v. Pittsburgh Comm’n on Human Relations, 

, 388

(1973).   More recently, in United States v. Williams, the Supreme

Court further established that “[o]ffers to engage in illegal

transactions     are   categorically   excluded   from   First   Amendment

protection.”     

, 297 (2008) (emphasis added).       This is

based on the “principle that offers to give or receive what it is

unlawful to possess have no social value,” and, accordingly,

“[m]any   long   established   criminal   proscriptions—such      as   laws

against conspiracy, incitement, and solicitation—criminalize speech

(commercial or not) that is intended to induce or commence illegal

activities.”     Id. at 298.

     Here, the “offers” and other forms of allegedly commercial

speech restricted by the Price Ordinance are offers to engage in

unlawful activity; that is, sales of tobacco products by way of

coupons and multi-pack discounts, which are banned by the Price

Ordinance itself.       We agree with the district court that “the

provision only precludes licensed tobacco retailers from offering

what the Ordinance explicitly forbids them to do,” and that offers

to engage in banned activity may be “freely regulated by the


                                  -13-
government.”    Nat’l Ass’n, 

, at *6-7.   The Price

Ordinance does not violate the First Amendment.

                                B.

     National Association alternatively argues that both the Flavor

Ordinance and the Price Ordinance are preempted by federal law.

“[F]ederal preemption . . . is a question of statutory construction

that we review de novo.”   DiFiore v. Am. Airlines, Inc., 

, 85 (1st Cir. 2011). “[T]he purpose of Congress is the ultimate

touchstone” in determining whether a particular state or local law

is preempted.   Altria Grp., Inc. v. Good, 

, 76 (2008)

(internal quotation marks omitted).   “When addressing questions of

express or implied pre-emption, [the Court] begin[s] [its] analysis

with the assumption that the historic police powers of the States

[are] not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.”      Id. at 77 (internal

quotation marks omitted).     These historic powers include the

protection of the health and welfare of the state’s citizens.

Napier v. Atl. Coast Line R.R. Co., 

, 610 (1926).

                                1.

     We first consider the preemptive effect of the Labeling Act on

the Price Ordinance.     The purpose of the Labeling Act was to

“establish a comprehensive Federal program to deal with cigarette

labeling and advertising.”    15 U.S.C. § 1331.     The preemption

provision of the Labeling Act provides that “[n]o requirement or


                               -14-
prohibition based on smoking and health shall be imposed under

State law with respect to the advertising or promotion of any

cigarettes[,] the packages of which are labeled in conformity with

the provisions of this chapter.”            15 U.S.C. § 1334(b).8         It is

undisputed    that    the    Price   Ordinance      is   a   “requirement    or

prohibition based on smoking and health.”

     Even    though   the    Price   Ordinance      itself    refers   to   the

regulation of coupons that are used for “promotional purposes,” see

Providence, R.I., Code of Ordinances § 14-300 (definition of

“coupon”), the City argues that the Price Ordinance does not relate

to the “advertising or promotion” of cigarettes under § 1334(b),

because it relates to the regulation of conduct, rather than the

communication of information relating to smoking and health.

National Association argues that the Price Ordinance regulates

promotional activity.        Cases from other circuits interpreting §

1334(b) have held that “discounting” and “distribution of coupons”

are “promotional” activities under the statute. 23-34 94th St.

Grocery Corp. v. N.Y.C. Bd. of Health, 

, 182 (2d Cir.

2012); Jones v. Vilsack, 

, 1035-36 (8th Cir. 2001).

We can assume, without deciding, that this is correct.

     Building    on    the    conclusion     that    such    activities     are

“promotional,” in 2001, Jones v. Vilsack determined that § 1334(b)

     8
          The parties dispute whether § 1334(b) would affect those
portions of the Price Ordinance that regulate tobacco products
other than cigarettes.     Because we conclude that the Price
Ordinance is not preempted, we need not reach this issue.

                                     -15-
of the Labeling Act preempted an Iowa statute that banned retailers

from,     inter     alia,   “provid[ing]     free    articles,     products,

commodities, gifts, or concessions in any exchange for the purchase

of . . . tobacco products.”       Iowa Code § 142A.6(6)(b); see Jones,

272 F.3d at 1039.      National Association urges that under Jones v.

Vilsack coupon and multi-pack discount regulation is preempted by

the Labeling Act.      But Jones v. Vilsack was decided under the pre-

2009 statute.

        In 2009, Congress enacted an exception to the § 1334(b)

preemption provision that permits some restrictions on promotional

activity. See Family Smoking Prevention and Tobacco Control Act,

Pub. L. 111-31, § 203, 123 Stat. 1776, 1846 (2009) (codified at 15

U.S.C § 1334(c)).      This exception states that:

             Notwithstanding [§ 1334(b)], a State or locality may
             enact statutes and promulgate regulations, based on
             smoking and health, that take effect after the effective
             date of the [FSPTCA], imposing specific bans or
             restrictions on the time, place, and manner, but not
             content, of the advertising or promotion of any
             cigarettes.

15 U.S.C. § 1334(c).

        Notably, § 1334(c) was enacted in response to a portion of the

Lorillard Supreme Court decision (separate from the First Amendment

portion discussed above), which held that various Massachusetts

regulations       restricting   outdoor    and   point-of   sale   cigarette

advertising were preempted by the Labeling Act. See Lorillard, 533

U.S. at 551.      This portion of Lorillard concluded that any tobacco


                                    -16-
advertising regulation motivated by concerns relating to smoking

and health was preempted by the Labeling Act, even though the

regulations merely “govern[ed] the location [i.e., place], and not

the content, of [the] advertising.”            Id. at 548-49.         National

Association   admitted    at   oral    argument,   and      commentators    have

agreed, that this provision was designed to “essentially reverse”

the Lorillard preemption ruling.9

     The 2009 amendment imposed two requirements for the exception:

(1) the regulation must be content-neutral; and (2) it must be a

regulation of the time, place, or manner of the advertising or

promotion.     National    Association       argues    that    the   ordinance

incorporates First Amendment standards for determining what is

content-neutral and what is a time, place, and manner regulation.

The preemption provision cannot be read in this limited fashion

because   under   that   interpretation      the   exception      would    have

virtually no application.         National Association, for example,

argues that the Price Ordinance is not content-neutral because it

singles out coupons and discounts that reference tobacco.               But on

its face, the preemption exception to the Labeling Act extends to

regulations   that   single    out    tobacco.        The   exception     refers

specifically to “bans or restrictions on the . . . advertising or

promotion of cigarettes.”       15 U.S.C. § 1334(c).            The § 1334(c)

     9
          See, e.g., Christopher N. Banthin & Richard A. Daynard,
Room for Two in Tobacco Control: Limits on the Preemptive Scope of
the Proposed Legislation Granting FDA Oversight of Tobacco, 11 J.
Health Care L. & Pol’y 57, 69 (2008).

                                      -17-
exception would make no sense if it were read not to exempt

regulations from preemption simply because they were directed

toward tobacco use.      So too all regulations that fall under §

1334(b) necessarily pertain to “smoking and health,” so Congress

must have assumed that provisions validated by the § 1334(c)

exception would pertain to “smoking and health,” and in this

respect did not need to be content-neutral.

     National Association also argues that the ordinance is not

content-neutral because it bars certain price advertising. Just as

the content prohibition of § 1334(c) does not bar regulation of

time, place, and manner because it is directed toward tobacco or

concerned only smoking and health, we do not think it bars such

regulation of pricing. We read the “content” restricting provision

as concerned with “content” relating to health claims or requiring

specific health information.    This is consistent with the overall

purpose of the Labeling Act’s preemption provision, which is to

ensure that federal regulation in this respect is “not impeded by

diverse,   nonuniform,    and   confusing    cigarette   labeling   and

advertising regulations with respect to any relationship between

smoking and health.”     15 U.S.C. § 1331.

     In 23-34 94th Street Grocery (the only post-2009 court of

appeals case addressing the Labeling Act’s preemption provision),

the Second Circuit agreed.        It held that a regulation which

required tobacco retailers to “prominently display tobacco health


                                 -18-
warning and smoking cessation signage produced by the [New York

City] Department [of Health]” was preempted.                 685 F.3d at 179

(internal quotation marks omitted, second alteration in original).

The court explained that “[t]he legislative scheme [of the Labeling

Act] contemplates that Congress, and only Congress, will amend the

content of warnings required of manufacturers to educate consumers,

see   S.   Rep.   No.   98-177,   at    6-7;   FSPTCA    §   201(a),      without

interference      of    supplementary     efforts   by       state   or    local

authorities.”     Id. at 185.     Such health warnings are the type of

“content” for which Congress sought to preserve preemption under §

1334(c).    Here, in contrast, the Price Ordinance merely regulates

certain types of price discounting and offers to engage in such

price discounting.        It does not regulate “content” relating to

health claims or warnings.        The ordinance is content neutral.

      The remaining question is whether the ordinance qualifies as

a time, place, or manner regulation.           On this issue, the district

court held that

            Section 14-303 regulates the “time, place, and manner” of
            how cigarettes may be purchased in the City of
            Providence.    As such, the Ordinance falls into the
            category of conduct specifically excluded from preemption
            by Subsection 1334(c) and provides no conflict with the
            intended purpose of the Labeling Act regarding uniform
            cigarette labeling and advertising.

Nat’l Ass’n, 

, at *11.

      At the time of the 2009 enactment of § 1334(c), minimum price

laws were common.       See 59 Ctrs. for Disease Control & Prevention,


                                       -19-
Morbidity & Mortality Weekly Report 389 (Apr. 9, 2010), available

at http://www.cdc.gov/mmwr/pdf/wk/mm5913.pdf (noting that as of

2009 “25 states had minimum price laws for cigarettes” requiring

certain markups to be added to the wholesale or retail prices of

cigarettes).    We are aware of no case after the 2009 amendments

that has suggested that § 1334(b) of the Labeling Act was designed

to preempt pricing regulations.                Indeed, National Association

conceded at oral argument that minimum price statutes would not now

be preempted by the Labeling Act.             We see no material difference

between price regulations generally and the regulation of multi-

pack    discounts   and     coupons.          Price   regulations,   including

regulations    of   price    offers,    are     regulations   concerning   the

“manner” of promotion, and are not preempted.

                                        2.

       We next consider preemption of the Flavor Ordinance. National

Association argues that the FSPTCA preempts the Flavor Ordinance,

even though the relevant portion of the FSPTCA only regulates

cigarette products, and the Flavor Ordinance only regulates non-

cigarette tobacco products.            National Association relies on 21

U.S.C. § 387p(a)(2)(A), which reads

       No State or political subdivision may establish or continue in
       effect with respect to a tobacco product any requirement which
       is different from, or in addition to, any requirement under
       the provisions of this subchapter relating to tobacco product
       standards, premarket review, adulteration, misbranding,
       labeling, registration, good manufacturing standards, or
       modified risk tobacco products.


                                       -20-
Id.    (emphasis added).        However, this provision was meant to

prohibit state regulation narrowly and only with respect to the

“specified and limited areas” listed in the statute.               See H. Rep.

111-58, 2009 USSCAN 468, 493 (2009). National Association contends

that    the    Flavor   Ordinance,     by     effectively   banning   flavored

smokeless tobacco, imposes an additional “tobacco product standard”

or “good manufacturing standard” in violation of this provision.

       For this argument, National Association primarily relies on a

recent Supreme Court case involving a preemption provision banning

state requirements “‘with respect to . . . [the] operations’” of

slaughterhouses.        Nat’l Meat Ass’n v. Harris, ___ U.S. ___, ___,

, 969 (2012) (quoting 21 U.S.C. § 678).               There, the

Supreme Court held that a state regulatory ban on the sale of meat

products from nonambulatory animals effectively regulated the

“operations” of slaughterhouses and was therefore preempted.              Id.

at 972-73.      Similarly, National Association argues that the Flavor

Ordinance’s sales restrictions effectively and impermissibly impose

a new product or manufacturing standard in violation of the

preemption provision.        We disagree.

       To understand National Association’s argument, it is necessary

to     set    forth   the   relevant    statutory    provisions.       Section

387p(a)(1), the FSPTCA’s preservation clause, permits regulations

“relating to or prohibiting the sale . . . of tobacco products,”

but this provision is subject to subparagraph (A) of the preemption


                                       -21-
provision, which bars “any requirement relating to tobacco product

standards” or “good manufacturing standards,” as noted above.                           21

U.S.C.    §    387p(a)(2)(A).           Subparagraph        (B)    of   the   preemption

provision, the savings clause, overrides the standards preemption

but allows only regulations “relating to” the sale of tobacco

products.          Id. § 387p(2)(B).       National Association argues that the

savings       clause       must    be      read     as   not    allowing      regulation

“prohibiting” sale and that the Flavor Ordinance is not a provision

“relating to” sales but rather is a “prohibition” on sales.                           Again

we disagree.

     The Flavor Ordinance makes it “unlawful for any person to sell

or offer for sale any flavored tobacco product to a consumer,

except in a smoking bar.”               Providence, R.I., Code of Ordinances

§ 14-309 (emphasis added). It is not a blanket prohibition because

it allows the sale of flavored tobacco products in smoking bars.

Rather, it is a regulation “relating to” sales specifically allowed

by the savings clause, which overrides the standards provision.

See Nat’l Ass’n, 

, at *13.

     This      difference         easily    distinguishes         National    Meat.      In

National Meat, the state preemption statute—in contrast to the

statute       in    this   case—did     not       contain   a   savings      clause    that

expressly exempted regulations “relating to the sale” of the

product from preemption.             See 21 U.S.C. § 678.10          Significantly, in

     10
          National Association also relies on Engine Mfrs. Ass’n v.
South Coast Air Quality Mgmt. Dist., 

 (2004). The case

                                             -22-
U.S. Smokeless Tobacco Manufacturing Co. v. City of New York, 

 (2d Cir. 2013), the Second Circuit held that a virtually

identical New York City provision was not preempted by the FSPTCA.

The   provision   at   issue   there,   like   the   one   at   issue   here,

“prohibit[ed] the sale . . . of ‘any flavored tobacco product

except in a tobacco bar.’”        Id. at 431 (quoting New York City

Administrative Code § 17-715).11

involved a preemption provision in the Clean Air Act (“CAA”) that
prohibited “state or local ‘standard[s] relating to the control of
emissions from new motor vehicles or new motor vehicle engines.’”
Id. at 251 (quoting 42 U.S.C. § 7543(a)). In Engine Manufacturers,
a Los Angeles air quality management district adopted “Fleet Rules”
which regulated the types of vehicles (and engine types) that fleet
operators must purchase or lease when adding or replacing public
vehicles. Id. at 249-50 & n.1-3. Though the provision did not
expressly adopt emissions standards and was a regulation with
respect to the sale and purchase of vehicles, the Court held that
the provision was preempted because, in its view, “a standard is a
standard even when not enforced through manufacturer-directed
regulation.” Id. at 254. However, the statutory scheme at issue
there, like that in National Meat, did not contain a preservation
clause that directly exempted sales regulations from preemption.
And indeed, the Court made clear in Engine Manufacturers that
“[n]either the manufacturer-specific interpretation of ‘standard’
nor the resulting distinction between purchase and sale
restrictions finds support in the text of [the preemption
provision] or the structure of the CAA.” Id. at 252. Here, in
contrast, the distinction between sales and manufacturing
regulations is clearly supported by 21 U.S.C. § 387p(a)(1).
      11
          While we agree with the ultimate decision reached in U.S.
Smokeless, we disagree with its reasoning to the extent it suggests
that, under some circumstances, a sales regulation may be an
effective regulation on manufacturing. See U.S. Smokeless, 708
F.3d at 434 (“Certainly, any purported sales ban that in fact
functions as a command to tobacco manufacturers to structure their
operations in accordance with locally prescribed standards would
not escape preemption simply because the City framed it as a ban on
the sale of tobacco produced in whatever way it disapproved.”
(internal quotation marks and citations omitted)). Given Congress’
decision to exempt sales regulations from preemption, whether those

                                   -23-
                                 C.

     The final issues concern National Association’s argument that

the Price Ordinance is preempted by state law, and its argument

that both the Price Ordinance and Flavor Ordinance violate the

Rhode Island Constitution in regulating tobacco licensing.

     National Association argues that, while there is no express

preemption, the Price Ordinance is impliedly preempted by state law

because, in its view, Rhode Island law comprehensively regulates

the offering and redemption of coupons and other discounts for

tobacco products.    It is true that, under Rhode Island law, the

Price Ordinance would be preempted by state law “if the Legislature

intended that its statutory scheme completely occupy the field of

regulation on a particular subject.”    Town of Warren v. Thornton-

Whitehouse, 

, 1261 (R.I. 1999).   It is also true that

field preemption “may be implied in the legislative scheme.”    See

State ex rel. City of Providence v. Auger, 

, 1230 n.9

(R.I. 2012).   However, there must be a “clear indication . . . that

the General Assembly intended to occupy the field.”      El Marocco

Club, Inc. v. Richardson, 

, 1232 (R.I. 2000).

     Here, it is apparent that the General Assembly has not

occupied the field of tobacco regulation as it relates to pricing

generally or coupons and multi-pack discounts in particular.

National Association cites statutes that prohibit the sale of


regulations have an impact on manufacturing is irrelevant.

                                -24-
tobacco products to minors, the distribution of free tobacco

products to minors, and unfair sales practices laws that bar

misleading price advertising. See R.I. Gen. Laws §§ 11-9-13.8, 11-

9-13.10, 6-13-11. We note also that the state sets minimum prices

for the sale of tobacco products.         See R.I. Gen. Laws § 6-13-2(2).

But National Association cannot point to any text of these statutes

that suggests an intent to occupy the field of tobacco price

regulation.    Indeed, the Rhode Island Supreme Court has clearly

established that, in contrast to other regulatory contexts, “the

General Assembly [has] at no time disclosed, by implication or

otherwise, its intent to occupy exclusively the field of regulating

smoking.”   Amico’s Inc. v. Mattos, 

, 908 (R.I. 2002).

We thus agree with the district court that the statutes do not

impliedly preempt the ordinances.                Further, although National

Association also argues that the General Assembly declined to enact

statutes akin to the Price Ordinance, we do not see why such

inaction would evince an intent to occupy the relevant field.                  We

thus agree with the district court’s conclusion that this inaction

“is   simply   insufficient      to     support    an   inference     that     the

Legislature    intended   to    preempt       completely    the   regulation   of

tobacco product sales.”        Id.

      Alternatively, National Association argues that both the Price

Ordinance   and   the   Flavor       Ordinance    violate   the   Rhode   Island

Constitution because “municipalities lack authority to regulate


                                       -25-
businesses through licensing schemes.”                Appellants’ Br. 51.         The

Rhode Island Constitution “grant[s] and confirm[s] to the people of

every city and town in [Rhode Island] the right of self government

in all local matters.”           R.I. Const. Art. XIII, § 1.              But Rhode

Island Supreme Court decisions suggest that the Rhode Island

Constitution     grants      exclusive     “power     [to]   the    legislature    to

regulate and control by licensing the conduct of business within

the   state,”    and    that    local     licensing      measures   are   therefore

prohibited absent delegation from the state.                   Nugent v. City of

East Providence, 

, 762-63 (R.I. 1968); Amico’s Inc.,

789 A.2d at 904.

        Section 14-301 of the Providence Code of Ordinances requires

all tobacco dealers in Providence to obtain a license from the

Providence      Board   of     Licenses    (“Licensing       Board”).      National

Association admits that it has not challenged this provision,

either here or before the district court.                  As the district court

concluded,      therefore,     “the     question    of    whether   the   licensing

requirement set forth in Section 14-301 of the Tobacco Dealers

Ordinance is an unauthorized overreaching by the City is not before

the Court.”      Nationa’l Ass’n, at *15.

        Because the licensing provision is unchallenged, there is no

basis for invalidating the Price Ordinance or the Flavor Ordinance.

These    ordinances     only     implicate      licensing     in    two   pertinent

respects.     First, the ordinances are directed generally toward


                                         -26-
license-holders and contemplate enforcement by the Licensing Board.

The Price Ordinance is directed toward “a person who holds a

license under this article,” Providence, R.I., Code of Ordinances

§ 14-303.    The enforcement provisions empower the Licensing Board

to impose the fines for violations of the ordinances.               See id. §

14-310.     Given that National Association is not challenging the

overall licensing scheme, we do not think that these provisions are

an issue here.

     Second,      the    ordinances    permit      license    revocation     for

violations of the ordinances.          Id.   National Association argues

that this feature is incompatible with the state legislature’s

exclusive authority over licensing.             See Nugent, 

;

Amico’s,    

.   However,     the    basic    validity   of   the

licensing scheme has been conceded, and none of the appellants

purports to have lost its license as a result of the ordinances.

As the district court noted, “licensing is implicated only if a

violation occurs,” and “[t]he Ordinances have not yet been enforced

and no suspension or revocation of a license has yet occurred in

connection with an alleged violation of either Ordinance.”                 Nat’l

Ass’n, at *15.     Thus, the District Court was correct in declining

to reach this question.

                                      III.

     Because the Price Ordinance is an appropriate regulation of

pricing, it falls outside the ambit of the First Amendment and is


                                      -27-
not   the   sort   of   regulation   preempted   by   the   Labeling   Act.

Moreover, because the Flavor Ordinance is an appropriate sales

regulation that is expressly preserved by the FSPTCA, it also is

not preempted.     Neither ordinance, moreover, conflicts with state

law because Rhode Island has not occupied the field of tobacco

regulation, and National Association has not raised a direct

challenge to the relevant licensing provision that bears on the

ordinances’ enforcement.       Therefore, the judgment of the district

court is affirmed.

                                     COSTS

      Costs to the City of Providence.




                                     -28-