SACRAMENTO, Calif. — R.J. Reynolds Tobacco Co. and other interested parties are asking the Supreme Court to issue an emergency order to stop California from implementing a sales ban on most flavored tobacco products.
The ban—which prohibits the sale of everything from flavored menthol to e-cigarettes, excluding hookah and some cigars—was signed into law in August 2020 by California Gov. Gavin Newsom. However, a petition gathered enough signatures to take the issue to voters in the Nov. 8 midterm election, where about 62% of voters approved the sales ban.
The day after the election, R.J. Reynolds Tobacco Co., R.J. Reynolds Vapor Co., American Snuff Co. LLC, Santa Fe Natural Tobacco Co., Modoral Brands, the Neighborhood Market Association and Morija LLC (doing business as Vapin’ the 619) filed a lawsuit in the U.S. District Court for the Southern District of California against California Attorney General Robert Bonta and District Attorney for San Diego County Summer Stephan seeking to invalidate the ban. The earliest the ban could take effect would be Dec. 21.
The district court on Nov. 15 denied the companies’ request for a preliminary injunction, though, prompting the plaintiffs to file a motion with the U.S. Court of Appeals for the Ninth Circuit to prevent the ban, according to a notice from the National Association of Tobacco Outlets (NATO), Minneapolis. On Nov. 28, the Nine Circuit Court denied the motion for an injunction.
R.J. Reynolds, Winston-Salem, N.C., and the other plaintiffs then on Nov. 29 filed the emergency injunction with the Supreme Court. In it, the companies argue that California’s ban, Senate Bill 793, falls under the Family Smoking Prevention and Tobacco Control Act’s (TCA) preemption clause, which states, in part that a state cannot adopt or enact “any requirement which is different from, or in addition to…tobacco product standards.”
While the FDA has proposed federal tobacco product standards to ban menthol cigarettes and flavored cigars, it is going through a multi-step regulatory process, and nothing has been finalized yet.
While proponents argue the ban will help prevent teen smoking, opponents are concerned with the effects it will have on small businesses, like convenience stores, the loss of tax revenue to the state and the potential creation of a black market.
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