Supreme Court Denies Attempt to Block Flavored Tobacco Ban

R.J. Reynolds fought ban after voters approved it in midterm election
Photograph: Shutterstock

WASHINGTON — The U.S. Supreme Court has denied R.J. Reynolds Tobacco Co.’s request for an emergency order blocking a ban in California on the sale of most flavored tobacco products.

“The application for a writ of injunction pending appeal presented to Justice Kagan and by her referred to the Court is denied,” the brief order, dated Dec. 12, reads.

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.

“Flavored tobacco products have hooked a new generation of young smokers at a time when tobacco is already the No. 1 preventable killer in the United States,” California Attorney General Rob Bonta said. “I applaud the Supreme Court for denying big tobacco's latest attempt to block California's commonsense ban on flavored tobacco products. The voters of California approved this ban by an overwhelming margin in the November election and now it will finally take effect. I look forward to continuing to defend this important law against any further legal challenges.”

R.J. Reynolds Tobacco Co. told CSP it would not provide comment on the ruling because Reynolds does not comment on ongoing litigation.

Opponents of the ban, including some convenience-store retailers, have told CSP it would be devastating to business.

The day after the midterm 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 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, prompting the plaintiffs to file a motion with the U.S. Court of Appeals for the Ninth Circuit to prevent the ban. 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 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 Food and Drug Administration 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.

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