Second, Section 916 of the law provides an explicit, statutory preemption provision that, while ambiguous in important respects explored in this article, gives preemptive effect to certain tobacco products subjected to FDA premarket review.4 At issue in that preemption provision is the laws authorization for modified risk tobacco products (MRTPs) and associated branding and labeling which, as the public health rationale goes, help current tobacco users consume products with less nicotine or fewer toxic contaminants and therefore reduce their risk of disease or death.5 Authorized under Section 911 of the Tobacco Control Act, these products include but are not limited to, low-carcinogen cigarettes, devices that heat tobacco to release nicotine, smokeless tobacco, and novel nicotine products. There is considerable controversy within the public health community as to the justification for giving legal sanction to MRTPs
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