RJ Reynolds Wants Rehearing On LA’s Flavored Tobacco Ban

R.J. Reynolds Tobacco Co. and two other companies have asked the Ninth Circuit to reconsider a March decision backing Los Angeles County’s ban on the sale of flavored tobacco products, arguing the ban is clearly preempted by the Tobacco Control Act (TCA).

R.J. Reynolds, American Snuff Co. and Santa Fe Natural Tobacco Co. Inc. argued for rehearing en banc that a split Ninth Circuit panel incorrectly found that a lower court was right to rule that state and local governments can control the sale of tobacco products within their borders.

The companies said L.A. County’s flavor ban “falls in the heartland” of a preemption clause in the TCA that preempts any state or local requirements that impose additional or different “tobacco product standards,” which the companies argued includes flavor bans. They also argued that because the county’s ban is broader than the federal one — because it prohibits menthol flavors, which federal law allows — it is “squarely within the act’s preemption clause.”

The companies argued the panel’s decision “not only imposes a limitation found nowhere in the statutory text, but also conflicts with the Supreme Court’s admonition that localities cannot circumvent preemption by calling their laws ‘sales bans.'”

The companies said that under the majority panel’s interpretation, every state and county can regulate any property of a tobacco product — including the amount of nicotine in cigarettes or the length of cigars — by banning the sale of products that do not meet local standards.

However, a preservation clause included in the TCA allows states and local authorities to enact regulations concerning tobacco products that are more stringent than the TCA itself. Therefore, L.A. County’s ban “does not pose an impermissible obstacle” to the purposes or objectives of the TCA, and the ban is not preempted.

On March 18, a three-judge panel voted 2-1 to affirm a California federal judge’s dismissal of the companies’ suit, with the majority finding that the TCA authorizes the U.S. Food and Drug Administration to regulate tobacco products while preserving state and local regulatory authority over tobacco.

Los Angeles County adopted the ordinance in September 2019 as it grappled with a wave of severe lung illnesses related to vaping and an increase in youth tobacco use. The policy expressly bans store sales of all flavored tobacco products, including menthol, in the majority of the county. The ordinance went into effect on May 1, 2020.

The tobacco companies filed suit against the county in June 2020, following an earlier suit challenging the ordinance brought by the trade group CA Smoke and Vape Association. That case was dismissed in August 2021.

LAW360: https://www.law360.com/productliability/articles/1480232/rj-reynolds-wants-rehearing-on-la-s-flavored-tobacco-ban

Leave a Reply

%d bloggers like this: