Tobacco Cos. Take Fight Against California Flavor Ban to Supreme Court

WASHINGTON, D.C. —  The issue of flavored tobacco bans could be heading the highest court in the land.

On Nov. 29, R.J. Reynolds Vapor Co., American Snuff Co. LLC, Santa Fe Natural Tobacco Co., Modoral Brands, Neighborhood Market Association and Morija LLC d/b/a Vapin’ the 619 asked the U.S. Supreme Court to issue an injunction against California Senate Bill 793, which prohibits the sale of flavored tobacco products statewide.

As Convenience Store News reported, California voters approved the ban, which appeared on the Nov. 8 ballot as Proposition 31. Proposition 31 upholds the state law barring the sale of flavored tobacco, including menthol. It also charges a $250 penalty against stores and vending machine owners for each violation.

On Aug. 28, 2020, Gov. Gavin Newsom signed the legislation into law after the California Senate voted 34-0 in favor of ban, followed by a similar 58-1 vote in the California Assembly. However, two months later the California Coalition for Fairness submitted more than 1 million signatures from registered voters to the Secretary of State's office in a bid to get a veto referendum to overturn the legislation onto the November 2022 ballot.

Following the election, the tobacco companies sought a preliminary injunction, which was denied by the District Court for the Southern District of California.  In response, they filed a motion with the U.S. Court of Appeals for the Ninth Circuit for an injunction to prevent SB 793 from going into effect, according to the National Association of Tobacco Outlets (NATO).

On Nov. 28, the Ninth Circuit Court denied the motion for an injunction.

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

According to NATO, the preemption argument in the application to the U.S. Supreme Court has the following elements:

• The TCA provides that a state cannot adopt or enact "any requirement which is different from, or in addition to…tobacco product standards."
• Senate Bill 793 is a tobacco product standard and is broader and more restrictive than current Food and Drug Administration (FDA) regulations because it bans all flavors, including menthol, in all tobacco products. 
• Senate Bill 793 is therefore preempted by the TCA because the ban on all flavors is "different from, or in addition to" current FDA tobacco product standards.
• The TCA has an exception or "savings clause" that allows a state to adopt "requirements relating to the sale" of tobacco products, but this savings clause does not reference, and therefore does not save or allow, a state to adopt "requirements…prohibiting the sale" of tobacco products.

The ban is set to go into effect Dec. 21.