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65 Brooklyn Law Review 321 (1999)


This paper will examine the nature and scope of the ability of both municipalities and local public health departments to govern the local sale, use, availability and advertising of tobacco products in the context of New York state law and the recent Multistate Settlement Agreement.

Part I will begin with a description of municipalities in New York and a summary of the provisions of article 9 of the New York Constitution and section 10 of the state Municipal Home Rule Law, which delimit spheres in which municipalities may act without state interference and others in which the state may act notwithstanding local interests. Part II will examine these provisions in greater depth. The first section of Part II will focus on the specific provisions affirmatively granting municipalities the power to pass or amend laws concerning certain of their own affairs and the limits of those powers. The second section will focus on the limits that constitutional and statutory provisions place on state interference with municipal home rule powers and the narrow interpretation that the courts have given these provisions. The third section will examine the effect of this framework on the ability of New York municipalities to adopt specific tobacco control measures, in light of extant tobacco control measures at the state level and the likely effects of the MSA. Lastly, Part III will evaluate the statutory powers of local health boards to regulate local health concerns connected with the use of tobacco.