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THE COMPLAINT ADEQUATELY ALLEGED DEFENDANT VIOLATED THE CIGARETTE MARKETING STANDARDS ACT (CMSA) BY OFFERING REBATES WHICH EFFECTIVELY LOWERED THE PRICE OF CIGARETTES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action for the violation of the Cigarette Marketing Standards Act (CMSA) by offering rebates which effectively lowered the price of cigarettes:

… [T]he CMSA and its regulations make clear that rebates which directly or indirectly serve to reduce prices below legal minimums constitute violations of the prohibition on offers to sell or sales of cigarettes at less than minimum prices (see Tax Law § 484[a][1]). The Supreme Court therefore erred in directing dismissal of the complaint on the basis that the alleged conduct involved the provision of rebates. Contrary to [defendant’s] contention, the complaint sufficiently pleaded that these rebates resulted in prices below the legal minimum (see 20 NYCRR 84.1[b][2]).

The Supreme Court also erred in determining that the good faith “meeting competition” exception to the CMSA applied as a matter of law. The exception permits an agent or wholesale dealer to sell cigarettes “at a price made in good faith to meet the price of a competitor who is rendering the same type of services and is selling the same article at cost to him [or her]” … . …

… [T]he complaint sufficiently pleads that [defendant] did not offer the rebates in good faith to meet the prices of a competitor selling cigarettes at its cost … . The complaint alleges that [defndant] lowered its prices to beat, not meet, legal competition. Moreover, it alleges that [defendant’s] sales manager was aware that such rebates violated the CMSA … . Amsterdam Tobacco Co., Inc. v Harold Levinson Assoc., LLC, 2022 NY Slip Op 00390, Second Dept 1-26-22

 

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