LAKEVILLE, Minn. — In June, three lawsuits were filed to overturn tobacco flavor ban ordinances adopted by local jurisdictions: Los Angeles County in California; Edina, Minn.; and Philadelphia.
Click through to see the claims of each lawsuit and how it could affect convenience-store retailers …
Los Angeles County
On June 1, R.J. Reynolds Tobacco Co., American Snuff Co. LLC, and Santa Fe Natural Tobacco Co. Inc. sued in the Federal District Court for the Central District of California to overturn a Sept. 24, 2019, ban on the sale of menthol cigarettes and every flavored tobacco product.
The lawsuit claims the Family Smoking Prevention and Tobacco Control Act—the federal law that authorizes the U.S. Food and Drug Administration (FDA) to regulate tobacco products—expressly prevents state and local governments from adopting a tobacco product standard “different from, or in addition to” federal tobacco product standards.
As Congress enacted a product standard in the act banning flavored cigarettes other than tobacco and menthol, a ban on menthol cigarettes is “different from, and in addition to” the act and should be preempted.
Additionally, the lawsuit claims the act implicitly preempts the Los Angeles County ordinance because it would be an “obstacle” to the underlying purposes of the act, which include authorizing the FDA to set national product standards to control manufacturing of and ingredients in tobacco products and to permit tobacco products to be sold to legal age adults while making them inaccessible to underage persons.
The lawsuit claims the Los Angeles County ordinance conflicts with these two purposes, presenting an “obstacle” to the act. The lawsuit seeks a declaration that the ban is invalid and unenforceable.
On June 17, R.J. Reynolds Tobacco, American Snuff, Santa Fe Natural Tobacco and two independent retailers filed a lawsuit in the Federal District Court for the District of Minnesota to overturn a similar ban enacted the previous day by the city of Edina, Minn., a suburb of Minneapolis.
The claims and relief sought in this lawsuit are essentially identical to the claims made against the Los Angeles County ordinance, and it seeks to have the ban declared invalid and unenforceable.
On June 18, the Cigar Association of America, ITG Cigars, Swedish Match North America and Swisher International filed a lawsuit in the State Court of Common Pleas of Philadelphia County against the city of Philadelphia and its department of public health seeking relief against a Dec. 18, 2019, city ordinance.
The ordinance bans the sale of flavored tobacco products (other than tobacco and menthol cigarettes), except in “tobacco product distribution businesses,” retail stores that prevent minors from entering, do not sell food and beverages and receive at least 90% of revenue from tobacco products and accessories.
This action includes several claims, among them:
- State law preempts ordinances by local governments, and specifically the City of Philadelphia, to regulate the sale of tobacco products.
- The definition of “flavored product” is vague.
- And the law was too broad because although its intent was protecting underage persons, it extended to all flavored tobacco products, regardless of whether that was needed to protect minors.
The suit seeks to have the have the ordinance preempted, voided for vagueness and for its enforcement to be precluded.
The three lawsuits are different, and it will take some time for them to be resolved. Court motion hearings on the lawsuits are in the process of being scheduled.
Thomas Briant is the executive director of NATO, a tobacco retailing association based in Lakeville, Minn. Reach him at firstname.lastname@example.org.