8th Circ. Asked To Follow The 9th In Flavored Vape Ban Case

A Minnesota city that wants to ban sales of flavored vape tobacco products urged the Eighth Circuit to consider another circuit’s recent 2-1 decision affirming a municipality’s rights to block such sales while R.J. Reynolds pressed the judges to focus on that case’s dissent instead.

The Minneapolis-area suburb of Edina is currently awaiting a decision from the Eighth Circuit on whether the city’s ban on flavored tobacco ran afoul of the federal Family Smoking Prevention and Tobacco Control Act, as tobacco giant R.J. Reynolds Tobacco Co. argued in its bid to overturn the ban.

The Eighth Circuit heard arguments on the matter last May, but has not yet issued a decision. In the meantime, the Ninth Circuit ruled 2-1 last week in favor of Los Angeles County, California, which enacted a similar ban on flavored vapes. The majority in that case found that local governments can control the sale of tobacco products within their borders.

The two cases are similar in that they both involve questions of preemption under the Tobacco Control Act and both came about after R.J. Reynolds and other tobacco companies appealed a district court’s decision that dismissed their challenges to the local bans.

More than two dozen nonprofit health groups, including the American Cancer Society and the American Heart Association, filed a friend-of-the-court brief in December 2020, urging the Eighth Circuit to uphold Edina’s ban.

The ban is therefore a regulation “relating to or prohibiting the sale” of certain tobacco products, which the Tobacco Control Act explicitly allows state and local governments to impose. Edina is one of 300 local jurisdictions and two states to use that authority to curb youth smoking by banning flavored tobacco.

LAW360: https://www.law360.com/articles/1360520/la-s-flavored-vape-ban-unconstitutional-9th-circ-hears

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