No. 2:20-cv-04065 (C.D. Cal. May 04, 2020)
On August 7, 2020, the case was dismissed along with the R.J. Reynolds challenge to the same ordinance. The court granted the County’s motion to dismiss, stating in its order that “the Ordinance is not expressly preempted by [the Tobacco Control Act] because it does not regulate tobacco product standards and therefore is protected by the Preservation Clause, which permits states and localities to prohibit the sale of tobacco products even if those sales bans are stricter than federal law.” With respect to the plaintiffs’ due process claims, the court stated that the term “characterizing flavor” is not unconstitutionally vague because “in the vast majority of situations, it will be clear to tobacco retailers when their products impart a characterizing flavor, and Plaintiffs’ themselves appear perfectly capable of understanding the terms.” Those situations on the margins will have to be adequately proven by law enforcement. As to the plaintiffs’ argument that the ordinance is also unconstitutionally vague as to whether it applied to online retailers, the court stated that the County was perfectly within its rights to “bring clarity to an otherwise vague statute ‘through limiting constructions given…by the…enforcement agency.’” Because the plaintiffs had failed to allege any set of facts under any of its claims that “plausibly suggest an entitlement to relief,” the case was dismissed with prejudice, meaning that the case cannot be refiled. The court also required the industry plaintiffs to pay the County’s costs associated with the case, which includes costs such as filing fees, copying and printing fees, and docket fees.
On May 1, 2020, the County of Los Angeles’ ordinance prohibiting the sale of flavored tobacco products, including menthol cigarettes and e-cigarettes, went into effect. Three days later, on May 4, 2020, The CA Smoke and Vape Association, and one of its members, Ace Smoke Shop, sued the County, seeking both declaratory and injunctive relief. Specifically, the plaintiffs allege that:
- The Tobacco Control Act (TCA) preempts states and localities from imposing tobacco product standards that are different than those outlined by federal law. LA County’s ordinance, the plaintiffs argue, prohibits “characterizing flavors” that go beyond those outlined by the TCA (e.g., it bans all flavored products, including flavors in e-cigarettes and menthol cigarettes), thereby setting a tobacco product standard that is preempted by the TCA; and
- The law violates due process requirements because it is “unconstitutionally vague” under the Fourteenth Amendment of the U.S. Constitution, meaning it fails to clearly state what activity is or isn’t allowed under the law, including with respect to who is required to obtain a license under the ordinance, and what constitutes a “flavored tobacco product.”
Along with the complaint, the CA Smoke and Vape Association filed a motion for a preliminary injunction that would prevent enforcement of the ordinance while the litigation is pending. On May 18, 2020, the County of LA filed its opposition to the industry’s motion. An application by public health organizations to file their own amicus brief was denied by the court, though shortly thereafter, the court also denied the plaintiffs' request for an injunction.
In its June 9, 2020, ruling denying the plaintiffs’ motion for a preliminary injunction, the court plainly stated that it “disagrees” with the plaintiffs’ argument that they are likely to succeed on the merits of their claims. In fact, the court specifically noted a previous decision in New York finding that flavored tobacco product sales restrictions are not tobacco product standards because they do not tell manufacturers how to make the product. Rather, they ban the sale of a final product, which is expressly allowed under the so-called “savings” clause of the Tobacco Control Act. Finally, the court noted in its order that the inclusion of menthol in a flavored tobacco product sales restriction does not conflict with the Tobacco Control Act—it simply goes beyond the prohibition of characterizing flavors in cigarettes by prohibiting the sale of menthol cigarettes in addition to other flavored tobacco products. The court also found the plaintiffs’ arguments that the ordinance is unconstitutionally vague and violates due process unavailing, noting they similarly fail to show likelihood of success on the merits on those claims as well. The same reasoning underlying the preliminary injunction denial was reiterated in the ruling dismissing the case.