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Cigar letter called error

Comptroller Peter Franchot scrambled yesterday to offer his support for a proposed city ban on the individual sale of cheap cigars days after his office wrote a letter to Baltimore officials arguing that the ban would be illegal.
A June 30 letter, which aides to Franchot said was sent in error, states that the city's proposal to restrict the sale of certain types of cigars - sometimes called "blunts" or "loosies" - would be illegal because only the state may regulate tobacco sales.
After receiving questions about the letter from The Sun, Franchot's office released a statement in support of the ban. Aides said that Franchot never approved the letter, that he did not agree with it and that he would quickly seek a more formal opinion from the attorney general.
"I have been a strong supporter of the fight to reduce teen smoking and limit the access of cigarettes and other tobacco products to our youth," Franchot said in a statement. "I strongly support Baltimore city's effort."
But the letter and subsequent backpedaling raised questions about whether the city's proposal - which, if implemented, would be the first of its kind in the nation - would stand up to the lawsuit that at least one opponent has threatened to file.
"I would hope that the comptroller's comments and position would bring Baltimore City to [its] senses," said Bruce C. Bereano, a lobbyist representing the Maryland Association of Tobacco and Candy Distributors. "This is a proposal that is illegal on their part."
Asked about a possible legal challenge, Bereano said: "They will be sued."
Sold under brand names such as Black & Mild, White Owl and The Game, the cheap cigars are exempt from laws that prohibit the sale of individual cigarettes. Neighborhood shops sell the cigars, which can be repacked with marijuana, for as little as 50 cents apiece.
Popularized by hip-hop stars, the smokes pack more tobacco than a cigarette and come in flavors such as cherry and grape that appeal to a younger crowd. It is this dangerous mingling of status symbol, sweet taste and high tobacco content that has city officials worried.
Mayor Sheila Dixon and city Health Commissioner Dr. Joshua M. Sharfstein held a news conference May 28 to announce the proposal, which would require shop owners to sell the cigars in packs of five or more.
City officials said that could discourage youths because a pack would be more expensive. Health officials received public comment on the proposal through July 1.
The letter from the comptroller's office, which collects state taxes on tobacco, was submitted to the city health department as part of that public comment process. The letter argued, in part, that because the state has exclusive power to tax tobacco it also has exclusive power to regulate it.
"I respectfully request that the proposed regulation be withdrawn, because the sale of cigars is an area of state pre-emption," read the letter, which was signed by an attorney in the motor-fuel, alcohol and tobacco tax regulatory division.
The regulation, which will not require City Council approval, would not apply to premium cigars.
Kathleen Hoke Dachille, director of the Center for Tobacco Regulation at University of Maryland School of Law, who worked with the health department in support of the proposal, said her interpretation of the law is that the city may regulate such businesses if the state has not done so aggressively. She said there are few state regulations on the books for cigar sales.
Dixon spokesman Sterling Clifford said the city will work with the comptroller's office and the city law department to ensure that whatever regulation is approved would pass legal muster.
A 2007 study by public health researchers at the Johns Hopkins University found that nearly 24 percent of Baltimoreans ages 18 to 25 had smoked the cigars within the past 30 days.
Economic research by the U.S. Department of Agriculture suggests that small cigars have been the fastest-growing segment of the expanding cigar market since 1998.
Similar legislation on small cigars introduced in the Maryland General Assembly this year died in committee.

Source: Baltimore Sun