Tobacco: It's an Indian Thing


A group of cigarette distributors and retailers is challenging New York state's ban on phone, mail-order, and online tobacco sales, arguing that the 2000 law violates the Commerce Clause by creating barriers to interstate trade and by regulating commerce with Indian tribes that sell cigarettes, a congressional prerogative. Although I share the plaintiffs' antipathy to New York Attorney General Eliot Spitzer's insistence that everyone (include shippers and credit card companies) help his state collect its ridicuously high cigarette tax, the first prong of their argument seems dubious to me. The cigarette sellers cite the U.S. Supreme Court's 2005 decision overturning state laws that ban direct shipment to consumers from out-of-state wineries. But the New York and Michigan laws challenged in that case explicitly discriminated against wineries in other states, permitting direct shipments by in-state wineries. Indeed, one way of complying with the decision would be to uniformly ban phone, mail-order, and online sales of wine.