Today (February 27, 2023), in an important victory for public health, the U.S. Supreme Court denied a petition to review a Ninth Circuit opinion upholding Los Angeles County’s ban on the sale of flavored tobacco products. The Supreme Court’s decision to deny the petition preserves the clear authority of state and local governments to prohibit the sale of deadly products like flavored tobacco.

For nearly a century, the tobacco industry has used menthol and other flavors to predatorily target many structurally disenfranchised populations, including the African American community and the LGBTQ+ community, with a goal of addicting a new generation of tobacco users. That is why states like California and Massachusetts, as well as nearly 400 local governments throughout the country, have restricted the sale of flavored tobacco products. As studies show, such laws can decrease tobacco use among children, young adults, and the communities most often targeted by the tobacco industry, and are an important public health tool in the fight against commercial tobacco, which continues to be the leading cause of preventable death in the United States.

Background

In 2019, Los Angeles County passed a near total ban on the retail sale of all flavored tobacco products, including menthol cigarettes and flavored e-cigarettes. The County’s law is substantively similar to the State of California’s ban on flavored tobacco products and, like the statewide ban, became the subject of litigation.

R.J. Reynolds challenged the County’s ordinance, arguing it was preempted by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). The Tobacco Control Act is a comprehensive federal statute authorizing the Food and Drug Administration to regulate tobacco products. At issue in this case is a series of provisions in the Tobacco Control Act that simultaneously preserve state and local authority to craft regulations “relating to the sale” of tobacco products while also preempting states and local governments from enacting policies relating to “tobacco product standards.”

While R.J. Reynolds has attempted to argue that flavored tobacco restrictions are tobacco product standards, every federal court has rightfully interpreted the plain language of the Tobacco Control Act to allow state and local governments to restrict or ban the sale of flavored tobacco products.

In the spring of 2022, the Ninth Circuit upheld the County’s ban by a vote of 2 to 1. It ruled that the TCA preempts state and local governments from regulating how tobacco products are produced, but the County’s ordinance isn’t about production or manufacturing at all. Instead, it merely bans the sale of flavored tobacco products, which is expressly permitted by the Tobacco Control Act.

The Supreme Court

R.J. Reynolds petitioned the U.S. Supreme Court to review the Ninth Circuit opinion, arguing that the opinion got the law wrong and that, because similar flavor bans are being passed all around the nation, the case presented an issue of national import.

Today, February 27, 2023, the U.S. Supreme Court denied that petition, meaning the Ninth Circuit opinion, as well as the decisions in other circuit courts throughout the country, remain good law. This is a great outcome for public health proponents who are working to keep flavored tobacco products out of stores. This decision will also have important ramifications for other courts interpreting flavored tobacco sales restrictions.

For example, in November 2022, a federal district court upheld California’s statewide ban on flavored tobacco products because it was obligated to follow the reasoning in the Ninth Circuit’s decision about County’s ban. This also means that flavored tobacco laws have been upheld in every federal court in which they were challenged, including a case in the 8th Circuit Court regarding a flavored tobacco restriction in Edina, MN, which was upheld just minutes after the Supreme Court’s decision.

Despite a clear consensus by the courts that the Tobacco Control Act permits state and local flavor bans, the tobacco industry continues to challenge these common sense, evidence-based reforms. The Supreme Court’s decision is further evidence that state and local governments have the authority to enact policies that restrict or prohibit the sale of these deadly products. This is a tremendous victory for public health and for health equity.

Tom Pryor, Staff Attorney
February 27, 2023