Synopsis

On November 8, 2022, California voters approved a measure to prohibit the sale of most flavored tobacco products, including e-liquids, in the state. R.J. Reynolds and other tobacco companies filed suit on November 10, arguing that the Family Smoking Prevention and Tobacco Control Act preempts localities from banning the sale of flavored tobacco products. The Southern District of California dismissed the complaint with prejudice, the Ninth Circuit affirmed, and the plaintiffs appealed to the U.S. Supreme Court, which denied cert on January 8, 2024.

Why it matters for public health

Flavored tobacco products are much more popular than unflavored and tobacco-flavored products, whether combusted as with cigarettes, aerosolized as with e-cigarettes, or otherwise consumed. Flavored tobacco products are especially popular among youth and underage consumers of tobacco products, and flavors are widely regarded as a primary factor in youth initiation and continued use of tobacco products. One of the most impactful tobacco control measures that a local or state authority can undertake to curb tobacco product use is prohibiting the sale of flavored tobacco products.

Background

In 2020, California’s state legislature considered and approved a measure to restrict the sale of most flavored tobacco products in the state. R.J. Reynolds and other tobacco companies sued unsuccessfully to prevent the law’s enactment, arguing that it was preempted by the Tobacco Control Act. Following this effort, R.J. Reynolds and the tobacco industry supported a referendum proposal to place the state law, SB-793, on the general ballot for 2022. The referendum petition succeeded, and on November 8, 2022, California voters approved the law (Proposition 31), with 62 percent in favor and 38 percent opposed.

Proceedings

On November 10, 2022, tobacco companies filed suit in the Southern District of California. On March 15, 2023, the court dismissed the complaint with prejudice. In responding to the plaintiffs’ argument that the Tobacco Control Act preempts localities from banning flavored tobacco products, the court found that the Ninth Circuit’s rejection of the same argument in R.J. Reynolds v. County of Los Angeles (2020) was controlling. In that case, R.J. Reynolds challenged Los Angeles’s flavor ban based on the same argument that it was preempted by the Tobacco Control Act, an argument that the district court rejected and the Ninth Circuit affirmed. The Southern District of California similarly found that the Tobacco Control Act did not preempt California’s statewide flavor ban. On June 28, 2023, the Ninth Circuit affirmed the lower court’s dismissal of the complaint.

Litigation Status (CLOSED)

On September 1, 2023, the plaintiffs appealed the Ninth Circuit’s decision and petitioned the Supreme Court for a writ of certiorari. On January 8, 2024, the Supreme Court denied cert.