LAKEVILLE, Minn. — On Oct. 9, R.J. Reynolds Tobacco Co., American Snuff Co. LLC, R. J. Reynolds Vapor Co., Santa Fe Natural Tobacco Co. Inc., Philip Morris USA, Inc., John Middleton Co., U.S. Smokeless Tobacco Co. LLC, Helix Innovations LLC, Neighborhood Market Association Inc. and Morija LLC (dba Vapin’ the 619), filed a lawsuit seeking to repeal the California flavor ban law.
The lawsuit was filed in the Federal District Court for the Southern District of California against Xavier Becerra, in his capacity as the attorney general of California, and Summer Stephan, in her capacity as district attorney for the County of San Diego. It seeks declaratory and injunctive relief against the California law that, beginning Jan. 1, 2021, bans the sale of menthol cigarettes and all other flavored tobacco and vapor products, except premium cigars, shisha tobacco and loose leaf tobacco. Only those other tobacco products with a taste or aroma of “tobacco” may be sold.
The lawsuit has three main claims:
- Express Pre-Emption: The Family Smoking Prevention and Tobacco Control Act (the federal law authorizing the U.S. Food and Drug Administration (FDA) to regulate tobacco products) expressly denies state and local governments the ability to adopt a “tobacco product standard” that is “different from, or in addition to” federal tobacco product standards. A product standard is a power granted to the FDA by Congress to reduce or eliminate an additive or constituent in a tobacco product or tobacco product smoke. However, the California law includes a product standard because the law bans flavor ingredients and constituents in tobacco products. The federal law prohibits a state or local government from adopting a product standard that is “different from, and in addition to” a federal product standard. Since federal law does not ban flavored tobacco products, the California law’s product standard is different from federal law and is therefore pre-empted, the lawsuit states.
- Implied Pre-Emption Claim: The Family Smoking Prevention and Tobacco Control Act also impliedly pre-empts the California law because the prohibition of flavored tobacco products stands as an “obstacle” to the underlying purposes of this federal law. The U.S. Supreme Court has held that “obstacle” pre-emption occurs when a state or local law “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Two purposes of the Family Smoking Prevention and Tobacco Control Act are authorizing the FDA to set national product standards controlling the manufacturing of, and ingredients in, tobacco products and allowing tobacco products to be sold to legal age adults while making them inaccessible to underage persons. California’s flavor ban directly conflicts with these two purposes and is pre-empted under the “obstacle pre-emption” principle.
- Dormant Commerce Clause: The Dormant Commerce Clause, implicit in the Commerce Clause of the U.S. Constitution, prohibits states from discriminating against or excessively burdening interstate commerce. States cannot regulate manufacturers by imposing substantial burdens on interstate commerce even in the absence of Congressional action. California’s law improperly burdens or discriminates against interstate commerce.
The plaintiffs are asking the Federal District Court to issue a ruling that includes the following relief:
- Declare that the Family Smoking Prevention and Tobacco Control Act pre-empts the California ban on the sale of all flavored tobacco products, making the law invalid and unenforceable.
- Declare that the law is invalid and unenforceable under the Commerce Clause of the U.S. Constitution.
- Issue preliminary and permanent injunctions preventing the enforcement and implementation of the California ban on the sale of all flavored tobacco products.
This important litigation action will be closely followed by NATO.
Thomas Briant is the executive director of NATO, a tobacco retailing association based in Lakeville, Minn. Reach him at info@natocentral.org.
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