Does the Tobacco Control Act preempt the County of San Diego's flavored tobacco product ordinance?
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.”
On June 19, 2020, the Neighborhood Market Association and one of its members, “Vapin’ the 619” (represented by the same film representing the CA Smoke and Vape Association in challenges to flavor restrictions in Los Angeles and Palmdale) filed a lawsuit against the County of San Diego over its newly enacted ordinance restricting the sale of “flavored smoking products.”
Like the earlier complaints challenging flavored tobacco product sales restrictions, this complaint argues that the Tobacco Control Act preempts local jurisdictions from enacting flavor restrictions. Specifically, the Neighborhood Market Association plaintiffs allege:
- The Tobacco Control Act (TCA) vests the FDA with exclusive authority to set tobacco product standards. Because flavored product and electronic cigarette sales restrictions are also “tobacco product standards,” San Diego’s flavored product sales restriction is preempted by the TCA; and
- Even if the TCA doesn’t explicitly preempt San Diego’s law, the law is preempted because it stands as an obstacle to the regulation of flavored products at the federal level.
On June 29, 2020, the plaintiffs filed a motion for a preliminary injunction. The Association argues in its brief that it is likely to succeed on the merits of its claims (a required element showing that a preliminary injunction should issue) and elaborates on the claims it made in its compliant. Specifically, it argues:
- San Diego creates a preempted tobacco product standard in its flavored product definition because it exempts “molasses, honey, fruit pulp, or dried fruits...” (in other words, the ordinance exempts shisha and defines shisha as “a flavored smoking product that is traditionally mixed with molasses, honey, fruit pulp, or dried fruits and is sold for use in a water pipe known as a hookah);
- San Diego creates a preempted tobacco product standard in its prohibition of the sale of vapor products because FDA has authority to regulate e-cigarettes;
- The prohibition on the sale of menthol products conflicts with the characterizing flavor rule at the federal level, which exempts menthol.
On September 1, 2020, several public health groups, led by the Campaign for Tobacco-Free Kids and including the Public Health Law Center, filed an amicus brief (see below) supporting the County of San Diego and opposing the preliminary injunction motion.
A hearing on the preliminary injunction motion will be held on September 24, 2020. The County has also filed a motion to dismiss the lawsuit. The industry plaintiffs filed a response to that motion on September 3, 2020.