Synopsis

Tobacco industry retailer association challenges the County of San Diego’s flavored tobacco product sales restriction, arguing the restriction is expressly and impliedly preempted by federal law.

Why It Matters for Public Health

This case was brought alongside another challenge to the same restrictions enacted by the County of San Diego. The court dismissed the case in late March, underscoring the ability of local governments to enact sales restrictions limiting access to commercial tobacco products.

Background

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 December 8th, the County of San Diego enacted a new tobacco retail licensing ordinance that will repeal and replace the restrictions challenged in this lawsuit.

District Court Proceedings

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:

1. 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
2. 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. 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 preliminary injunction motion on August 31, 2020.

The County also filed a motion to dismiss the lawsuit. In the meantime, the County adopted a new tobacco retail licensing ordinance that has been challenged in the parallel lawsuit against San Diego County brought by R.J. Reynolds.

On March 29, 2021, the court dismissed both this case and the R.J. Reynolds challenge to the old and new ordinances. Like all the other courts that have confronted similar challenges to local flavor ordinances, the judge found that neither the original ordinances nor the amended ordinance are preempted by the Tobacco Control Act because they are not product standards. Specifically, the judge reasoned that the ordinances “are sales bans directed at what end products are available to consumers, not a directive to manufacturers about what materials are permitted to make tobacco products.” The court was also conscious of the clear intent of the Tobacco Control Act to preserve the ability of “a State or political subdivision of a State . . . to enact . . . and enforce any . . . measure . . . prohibiting the sale . . . of tobacco products.” 21 U.S.C. § 387p(a)(1).

The plaintiffs in this case had also argued that the exemption for shisha indicated that it intended to regulate ingredients. The judge was unpersuaded by that argument, stating that the argument was “misleading,” and that the exemption for shisha products still focuses on an “end product that is exempt from the sales ban.”

Litigation Status

The court dismissed the complaint on March 29th, 2021, giving the plaintiffs an opportunity to re-file the complaint within thirty days. Because the plaintiffs failed to re-file their complaint, the court dismissed the case and it is now closed.