Synopsis

The tobacco industry challenges San Diego’s flavored tobacco product ordinance, arguing that the ordinance is expressly and impliedly preempted by the Tobacco Control Act.

Why It Matters for Public Health

This case is yet another lawsuit from the tobacco industry challenging local efforts to restrict the sale of flavored tobacco products. The County of San Diego enacted a broad restriction on the sale of commercial tobacco products, including menthol cigarettes, though the restriction exempted hookah tobacco. The industry challenged both the restrictions on the sale of products and the exemption. Notwithstanding the ongoing litigation, the county broadened the sales restriction in December of 2020 to include nicotine pouches and lozenges. All prior challenges to local flavored tobacco product sales restrictions have failed, bolstering the county’s efforts to continue to elevate public health protections in the face of industry intimidation.

Background

On January 28, 2020, the board of supervisors of the county enacted an ordinance prohibiting the sale or distribution of “flavored smoking products.” The definition of “flavored smoking product” in the ordinance includes a product containing, made, or derived from tobacco or nicotine that is intended for smoking and emits a taste or smell other than tobacco, including menthol, though not including hookah tobacco. The ordinance also temporarily prohibited the sale or distribution of electronic smoking devices for one year, unless “at the conclusion of ongoing investigation by the CDC, [electronic smoking devices] are not identified as a causal factor in the e-cigarette, or vaping, product use associated lung injury outbreak.”

On December 8, 2020, the board of supervisors adopted a new tobacco retail licensing ordinance, which repealed the prohibition on the sale of “flavored smoking products” and replaced it with a prohibition on the sale of “flavored tobacco products.” The new ordinance includes electronic products, smokeless products, lozenges, and nicotine pouches, though it still exempts flavored hookah tobacco sold by a hookah retailer and does not apply to loose-leaf tobacco or premium cigars.

District Court Proceedings

District Court

Shortly after an earlier lawsuit had already been filed against the county over its ordinance, R.J. Reynolds and Santa Fe Natural Tobacco Company filed their own challenge. The arguments they raise are similar to those brought in the first lawsuit (as well as the claims brought in challenges to other flavored tobacco product restrictions in California), in that they allege that the ordinance is preempted by the Tobacco Control Act. Specifically, the complaint alleges:

1. San Diego’s ordinance is expressly preempted by the Tobacco Control Act because the Act specifically denied states and localities the authority to promulgate “tobacco product standards,” which include regulations of the additives and ingredients in tobacco products; and
2. San Diego’s ordinance is impliedly preempted by the Tobacco Control Act because, even absent explicit preemption, the county’s ordinance stands as an “obstacle to the purposes of federal law,” which is to establish “uniform” national standards for the manufacture and ingredients of tobacco products.

On July 16, 2020, the plaintiffs in this case filed for a preliminary injunction to prevent implementation of the ordinance until the conclusion of the lawsuit (as they have done in the other challenges to various flavored tobacco product ordinances). Public health groups, led by the Campaign for Tobacco-Free Kids and including the Public Health Law Center, filed an amicus brief in opposition to the industry’s motion for a preliminary injunction.

On September 15, 2020, the county filed a motion to dismiss the lawsuit. After the county enacted a tobacco retail licensing ordinance that replaced the language in the original ordinance in December, the plaintiffs filed an amended complaint on March 4, 2021. The complaint also added two new plaintiffs who manufacture smokeless products and nicotine lozenges and pouches.

The court dismissed the case and denied the industry’s preliminary injunction motion on March 29, 2021. Like all the other courts that have confronted similar challenges to local flavor ordinances, the judge found that neither the original ordinances nor the amended ordinance are preempted by the Tobacco Control Act because they are not product standards. Specifically, the judge reasoned that the ordinances “are sales bans directed at what end products are available to consumers, not a directive to manufacturers about what materials are permitted to make tobacco products.” The court was also conscious of the clear intent of the Tobacco Control Act to preserve the ability of “a State or political subdivision of a State . . . to enact . . . and enforce any . . . measure . . . prohibiting the sale . . . of tobacco products.”

Ninth Circuit

On April 13, 2021, the industry plaintiffs filed a notice of appeal with the Ninth Circuit. A mediation conference was scheduled for May 27, 2021. On May 28, the case was administratively closed pending settlement discussions.

Litigation Status (CLOSED)

The administrative closure period concluded on August 22, 2022, and the case was dismissed on March 6, 2023.