Docket No. 3:20-cv-01290 (S.D. Cal. Jul 09, 2020)
Tobacco Industry challenges San Diego’s flavored tobacco product ordinance, arguing that the ordinance is expressly and impliedly preempted by the Tobacco Control Act.
On January 28, 2020, the Board of Supervisors of the County of San Diego enacted an ordinance prohibiting the sale or distribution of “flavored smoking products.” The definition of “flavored smoking product” in the ordinance includes a product containing, made, or derived from tobacco or nicotine that is intended for smoking and emits a taste or smell other than tobacco, including menthol, though not including shisha (hookah/waterpipe) tobacco. The ordinance also temporarily prohibits the sale or distribution of electronic smoking devices for one year, unless “at the conclusion of ongoing investigation by the CDC, [electronic smoking devices] are not identified as a causal factor in the e-cigarette, or vaping, product use associated lung injury outbreak.”
District Court Proceedings
Shortly after an earlier lawsuit had already been filed against the County of San Diego over its ordinance, R.J. Reynolds and Santa Fe Natural Tobacco Company filed their own challenge. The arguments they raise are similar to those brought in the first lawsuit (as well as the claims brought in challenges to other flavored tobacco product restrictions in California) in that they allege that the ordinance is preempted by the Tobacco Control Act. Specifically, the complaint alleges:
- San Diego’s ordinance is expressly preempted by the Tobacco Control Act because the Act specifically denied states and localities the authority to promulgate “tobacco product standards,” which include regulations of the additives and ingredients in tobacco products; and
- San Diego’s ordinance is impliedly preempted by the Tobacco Control Act because even absent explicit preemption, the County’s ordinance stands as an “obstacle to the purposes of federal law,” which is to establish “uniform” national standards for the manufacture and ingredients of tobacco products.
On July 16, 2020, the plaintiffs in this case filed for a preliminary injunction to prevent implementation of the ordinance until the conclusion of the lawsuit (as they have done in the other challenges to various flavored tobacco product ordinances). Public health groups, led by the Campaign for Tobacco-Free Kids and including the Public Health Law Center, filed an amicus brief in opposition to the industry’s motion for a preliminary injunction.
On September 15, 2020, the County of San Diego filed a motion to dismiss the lawsuit. A hearing on both motions will take place on January 28, 2021. The hearing has been consolidated with hearings on the other lawsuit challenging the same ordinance as well as the challenge to the state flavored product sales restriction.
The case is ongoing. Oral arguments are currently scheduled to take place on January 28, 2021.