Tobacco Companies Challenge California's Flavored Tobacco Ban

SACRAMENTO — Legislation prohibiting the sale of flavored tobacco products statewide is now facing a possible courtroom battle, one day after it faced a ballot box battle.

California voters overwhelmingly approved Proposition 31 on Nov 8. With more than 63 percent of the vote, Proposition 31 upholds the state law barring the sale of flavored tobacco, including menthol. Gov. Gavin Newsom signed the legislation into law on Aug. 28, 2020 and it was set to go into effect on Jan. 1, 2021 before a petition to place it on the ballot was filed.

Following this week's election results, R.J. Reynolds and other tobacco companies filed a lawsuit against California, according to Courthouse News Service.

Tobacco companies have already sued once over California's flavor ban in 2021. A federal judge dismissed the suit, telling the plaintiffs to wait for the voters to weigh in before suing, the news outlet reported.

"The referendum has now occurred and the injury plaintiffs face is no longer theoretical, but concrete and imminent," the complaint reads. The ban is set to go into effect no later than Dec. 21, unless a judge agrees to intervene.

In their suit, the tobacco companies argue that the federal Family Smoking Prevention and Tobacco Control Act (TCA) of 2009, allows states and municipalities to regulate tobacco products, but not to ban their use or sale.

"The ban falls under the TCA's express preemption clause, 'which preempts 'any [state] requirement' that is 'different from, or in addition to,' a federal requirement about a tobacco product standard," the suit reads. "A flavor ban is a paradigmatic tobacco product standard."

R.J. Reynolds used the same argument when it sued in 2020 to block Los Angeles County's ban on flavored tobacco. The suit was dismissed, a move that was upheld by the Ninth Circuit Court of Appeals, in a 2-1 split decision, in March 2022, according to the report.