Synopsis
The tobacco industry challenged the County of Los Angeles’ flavored tobacco product sales restriction, arguing that the ordinance is expressly and impliedly preempted by federal law.
Why It Matters for Public Health
This case is another challenge brought by tobacco companies against a local effort to restrict the sale of flavored tobacco products. The industry has continued to push back against public health-oriented efforts to restrict sales of flavored tobacco products. Despite these efforts by the industry to argue that federal tobacco laws preempt such local restrictions, the Ninth Circuit affirmed the district court’s ruling that federal law did not preempt the county’s sales restriction. R.J. Reynolds appealed to the Supreme Court, which denied cert on February 27, 2023.
Background
On May 1, 2020, the County of Los Angeles enacted an ordinance prohibiting the sale of all flavored tobacco products, including e-cigarettes, smokeless products, and menthol-flavored products.
Proceedings
District Court
On June 1, 2020, R.J. Reynolds, the American Snuff Company, and the Santa Fe Natural Tobacco Company filed a lawsuit against the county’s ordinance in the District Court for the Central District of California. Their lawsuit alleged that:
- The ordinance is preempted by the Tobacco Control Act (TCA) because the TCA preempts local and state governments from regulating the ingredients and additives that go into tobacco products (tobacco product standards); and
- The ordinance is impliedly preempted by the TCA because the TCA charges the FDA with promulgating tobacco product standards. Any attempt to create tobacco product standards by a local jurisdiction, the plaintiffs argued, “stands as an obstacle to the purposes of federal law.” The plaintiffs more specifically argued that the ordinance prohibits the sale of menthol cigarettes, which the TCA specifically allows, creating a conflict between the two.
The plaintiffs also requested a preliminary injunction from the court, which would have temporarily stopped the county from enforcing its ordinance against menthol cigarettes and flavored smokeless tobacco products. The motion was denied.
This lawsuit was filed almost one month after another lawsuit filed against the same Los Angeles ordinance by the CA Smoke and Vape Association.
On August 7, 2020, the case was dismissed along with the CA Smoke and Vape Association challenge to the same ordinance. The district court granted the county’s motion to dismiss, stating in its order that “the Ordinance is not expressly preempted by [the TCA] because it does not regulate tobacco product standards and therefore is protected by the Preservation Clause, which permits states and localities to prohibit the sale of tobacco products even if those sales bans are stricter than federal law.” Further, it found that the ordinance is also not impliedly preempted by federal law, because the statute “expressly gives state and local governments the power to prohibit the sale of tobacco products.” Because the plaintiffs had failed to allege any set of facts that “plausibly suggest an entitlement to relief,” the court dismissed the case with prejudice, meaning that the case cannot be refiled.
Ninth Circut
R.J. Reynolds appealed the district court’s decision on September 8, 2021. The case had been administratively closed pending potential consolidation of hearings with similar challenges to ordinances in San Diego and challenges to the state’s law restricting the sale of flavored tobacco products. However, on February 5, 2021, the appeal was reopened, setting the briefing schedule. The plaintiffs filed their brief on March 1, 2021, and the county filed its own on May 7, 2021. The Public Health Law Center, along with several other public health organizations, filed an amicus brief in support of the county on May 14, 2021. You can read the Public Health Law Center’s amicus brief here.
Oral arguments were held before a panel of the Ninth Circuit on October 19, 2021. On March 18, 2022, the Ninth Circuit affirmed the district court’s dismissal of the case and agreed that the TCA does not preempt local authorities from passing tobacco product sales restrictions. The Ninth Circuit further stated that even if the TCA had the preemption that R.J. Reynolds claimed it did, the county’s flavored product sales restriction would be exempted under the text of the TCA that preserved local authority to regulate sales. The court denied R.J. Reynolds’ petition for en banc rehearing on May 11, 2022.
Litigation Status (CLOSED)
R.J. Reynolds appealed the Ninth Circuit’s decision to the Supreme Court in July of 2022. On February 27, 2023, the Supreme Court denied cert.