Chapter 6On January 15, 2013, the North Dakota state legislature passed the “Open Plains Pure Air Restoration Act” (“OPPARA”), citing public health concerns potentially affecting all state residents. The Governor signed this measure into law on February 1, 2013. Implementation of this statute was scheduled to begin on July 4, 2013. OPPARA banned the advertisement, importation, and sale of cigarettes within North Dakota, with the exception of marijuana cigarettes medically prescribed for the alleviation of pain experienced by terminally ill patients. OPPARA also required that all members of pro-smoking organizations residing in North Dakota register with the newly-created Tobacco Control Board, a state agency with limited law enforcement powers. The ban also applied to smokeless tobacco, but did not extend to cigars or pipe tobacco. Under OPPARA, cigarette smoking and the use of smokeless tobacco was banned in “all public places, including restaurants, hotels, public conveyances, state and local government facilities, public streets and sidewalks, parks, and other recreational facilities.” Any individual violating these restrictions would be subject to a fine of not less than $100 or more than $500.Your law firm represents two clients, each gravely concerned about OPPARA and wishing to challenge various provisions on constitutional grounds. The first of these clients, Snuffy Smythe, a smokeless tobacco addict, contacts your firm on April 1, 2013. He maintains that the law discriminates against him, claiming that it arbitrarily prosecutes otherwise law-abiding citizens who use chewing tobacco. The other client, Cigarettes ‘R’ Us, Inc., a Delaware corporation doing business in North Dakota, South Dakota, and two other western states, contacts your firm on July 10, 2013, asserting that enforcement of OPPARA is likely to force it out of business altogether. In addition the corporation contends that OPPARA is preempted by an act of Congress requiring all retail businesses selling tobacco products to register with the Bureau of Alcohol, Tobacco, and Firearms and to pay an annual registration renewal fee of $500.As a junior associate in the firm, you are now asked to prepare a memorandum for the senior partners identifying and discussing all constitutional issues posed by the enactment and potential implementation of OPPARA. The partners are interested in possible Commerce Clause issues but also want to know what other constitutional questions are likely to arise in connection with this statute.
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