Judge cuts part of new tobacco law

JEFFERSON CITY, Mo. -- A new state law banning the sale of certain less-expensive tobacco products was enacted improperly, a judge ruled in striking it down Wednesday.

The prohibition on so-called gray market cigarettes -- which are manufactured for sale abroad -- was passed by the Legislature last year as part of a bill dealing mainly with sales of tobacco products to minors.

But the Missouri Constitution requires that an individual bill address only the matter stated in its title, Cole County Circuit Judge Thomas Brown said Wednesday, citing a 1994 ruling by the Missouri Supreme Court.

Brown threw out the ban on sale of gray market cigarettes, ruling it was unconstitutionally included in the bill on underage smoking. The ban had been scheduled to take effect Feb. 1, but the judge had stayed it temporarily.

"They put something in there that went beyond the sale of tobacco to minors," Brown said of the Legislature. "They should be encouraged to use specific titles."

Gray market cigarettes are often are produced overseas, where it is cheaper to make them, then brought to the United States to be sold at lower prices than domestic cigarettes.

The ban on their sale in Missouri had been challenged by Dirt Cheap Cigarettes and Beer, a 13-store retail chain in the St. Louis area.

Fred Teutenberg, president of Dirt Cheap, said the law allowed large tobacco companies to have too much control over the distribution and sale of cigarettes.

"We think it's a victory for small businesses against Big Tobacco," Teutenberg said after Brown ruled.

Constitutional muster

Ron Molteni, an assistant attorney general who was defending the state law, argued that the legislation passed constitutional muster.

"The title is not a perfect title but it's not a defective title," Molteni said. "Everything in the provision relates to the sale of tobacco."

Jim Owen, an attorney for Dirt Cheap, said the gray market provisions should never have been put in a bill that deals with underage smokers.

"The Legislature was forced to vote for two things," Owen said. "They weren't given any option."

Molteni said the attorney general's office has not decided whether to appeal.

Sen. Bill Kenney, R-Lee's Summit, the bill's sponsor, said he hoped that the case would be appealed.

"This wasn't a surprise, but I don't know that I agree with the judge's decision. I'm sure it's going to be appealed," said Kenney, who is considering filing legislation to deal with the gray market tobacco issue separately.

Sen. Ronnie DePasco, who filed a constitutional objection to the bill last year, said Wednesday he was glad the court agreed with his view.

"I think the bill was designed to prevent underage smoking, not to limit sales of cigarettes," said DePasco, D-Kansas City.