Tobacco companies challenged California’s statewide ban on the sale of flavored tobacco products.
Why It Matters for Public Health
California became the second state in the nation to pass a comprehensive law prohibiting the sale of flavored tobacco products, including menthol cigarettes. In keeping with the tobacco industry’s long history of challenging public health efforts in court, however, R.J. Reynolds sued the State of California over its flavor restriction. A simultaneous referendum effort (also supported by the tobacco industry) has effectively delayed implementation of the law until it can be voted on by voters in the next election, which will occur in November of 2022. Because the implementation of the law is now dependent on the outcome of the referendum, making its implementation uncertain, the lawsuit was dismissed in August of 2021. This case represents the ongoing tension between states and localities taking bold, evidence-based steps to prohibit the sale of flavored tobacco products, and the industry using its deep pockets to challenge and delay the implementation of those laws.
On August 28, 2020, California became the second state in the nation, after Massachusetts, to pass a broad law prohibiting the sale of most flavored tobacco products. The California law would ban the sale of menthol cigarettes and all flavored e-cigarettes statewide, as well as flavored non-cigarette tobacco products such as smokeless tobacco and some cigars. Governor Gavin Newsom signed the legislation the same day it passed. Three days later, a referendum supported by the tobacco industry was submitted, which eventually obtained enough signatures to qualify for the ballot and delayed implementation of the law until the next election. For more on the referendum and on the law, known as SB-793 after its bill number, see our fact sheet.
In addition to the referendum effort, the tobacco industry pursued a court challenge to the law. On October 9, 2020, a group of tobacco industry plaintiffs including R.J. Reynolds and Phillip Morris sued California Attorney General Xavier Becerra and San Diego County District Attorney Summer Stephan, raising preemption claims against SB-793.
Under the 2009 Tobacco Control Act, the federal government restricted the sale of some flavored tobacco products, including most flavored cigarettes. However, the Tobacco Control Act exempted menthol flavored cigarettes and flavored non-cigarette tobacco products, such as cigars, smokeless tobacco, hookahs, and e-cigarettes. The law preempts states and localities from enacting “tobacco product standards,” but does not limit their ability to enact requirements “relating to or prohibiting the sale, distribution, [or] possession” of tobacco products.
District Court Proceedings
In their complaint, the plaintiffs brought three claims, arguing:
- Express preemption – SB-793 is expressly preempted by the Tobacco Control Act because the Act is “different from, or in addition to” federal requirements related to “tobacco product standards”; and
- Implied preemption – SB-793 is impliedly preempted because it “stands as an obstacle” to the objectives of the Tobacco Control Act to “set national standards” for manufacturing of tobacco products, because FDA has chosen to regulate flavored cigarettes but leave menthol on the market, and because Congress created a “detailed regulatory process” for “evaluating the design and sale of new tobacco products.”
- Dormant commerce clause – SB-793 improperly violates the Commerce Clause of the U.S. Constitution by dictating “how out-of-state manufacturers must manufacture their products.”
Also on October 9, plaintiffs filed for a preliminary injunction on the first two claims in their complaint to prevent implementation of SB-793 until the conclusion of the lawsuit. This is the approach the tobacco industry has used in the other challenges to various flavored tobacco product ordinances. Defendants filed an opposition to that motion on November 12, 2020. Public health groups, including the Public Health Law Center, filed an amicus brief in support of the state law on November 16, 2020. On December 3, 2020, the State also filed a motion to dismiss the case.
Meanwhile, in addition to the lawsuit, R.J. Reynolds also led an effort to gather signatures in support of a referendum which will place SB 793 on the November 2022 ballot to be approved or rejected by voters. As a result, the law will not go into effect unless it is approved by voters. On December 10, 2020, the court asked the parties for additional briefing on the effect suspending SB 793 will have on the case.
On August 6, 2021, the court dismissed the case on ripeness grounds, finding that there is no ongoing case or controversy because the referendum has effectively made the law’s implementation uncertain. In other words, if the voters reject the law, it will never go into effect, so it is premature for the court to decide the law’s legitimacy now. If the law is approved by voters and does go into effect, the industry plaintiffs will likely challenge the law again. As of now, however, the law’s survival depends on the outcome of the referendum, and the court has determined it no longer has jurisdiction over the case.
The case is closed, having been dismissed on August 6, 2021.