Tobacco Industry challenges the County of Los Angeles’ flavored tobacco product sales restriction, arguing the ordinance is expressly and impliedly preempted by federal law.
Why It Matters for Public Health
This case is another challenge brought by R.J. Reynolds against a local effort to restrict the sale of flavored tobacco products. It was upheld in a federal district court ruling and is currently on appeal before the U.S. Court of Appeals for the 9th Circuit. Though courts have unanimously upheld local efforts to restrict the sale of flavored tobacco products, the industry continues to push back against public health-oriented efforts.
On May 1, 2020, the County of Los Angeles enacted an ordinance prohibiting the sale of all flavored tobacco products, including e-cigarettes, smokeless products, and menthol-flavored products.
District Court Proceedings
On June 1, 2020, R.J. Reynolds, American Snuff Company, and Santa Fe Natural Tobacco Company filed a lawsuit against the County of Los Angeles’ ordinance.
The plaintiffs’ lawsuit alleged that:
- Los Angeles’ ordinance is preempted by the Tobacco Control Act (TCA) because the TCA preempts local and state governments from regulating the ingredients and additives that go into tobacco products (tobacco product standards); and
- Los Angeles’ law is impliedly preempted by the TCA because the TCA charges the FDA with promulgating tobacco product standards. Any attempt to create tobacco product standards by a local jurisdiction, the plaintiffs argue, “stands as an obstacle to the purposes of federal law.” Specifically, the plaintiffs argue, Los Angeles’ ordinance prohibits the sale of menthol cigarettes, which the TCA specifically allows, creating a conflict between the two.
The plaintiffs also requested a preliminary injunction from the court, which would have temporarily stopped the County from enforcing its ordinance against menthol cigarettes or flavored smokeless tobacco products. The motion was denied.
This lawsuit was filed almost one month after an earlier lawsuit was filed against the same Los Angeles ordinance by the CA Smoke and Vape Association.
On August 7, 2020, the case was dismissed along with the CA Smoke & Vape Association 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.” Further, the ordinance is also not impliedly preempted by federal law, because the statute “expressly gives state and local governments the power to prohibit the sale of tobacco products.” Because the plaintiffs had failed to allege any set of facts that “plausibly suggest an entitlement to relief,” the court dismissed the case with prejudice, meaning that the case cannot be refiled.
Proceedings in the U.S. Court of Appeals for the Ninth Circuit
R.J. Reynolds appealed the lower court’s decision on September 8, 2020. The case had been administratively closed pending potential consolidation of hearings with similar challenges to ordinances in San Diego and the challenge to the state law restricting the sale of flavored tobacco products. However, on February 5, 2021, the appeal was reopened, setting the briefing schedule. R.J. Reynolds and the plaintiffs filed their brief on March 1st, 2021. The County’s filed its brief on May 7th, 2021. The Public Health Law Center, along with a number of additional public health organizations, filed an amicus brief in support of the County on May 14th, 2021. You can read PHLC’s amicus brief here.
The case was argued before a panel of the 9th Circuit Court of Appeals on October 19th, 2021 in Pasadena, California.
Oral argument occurred on October 19, 2021. On March 18, 2022, the Court of Appeals affirmed the District Court’s dismissal of the case and agreed that the Tobacco Control Act does not preempt local authorities from passing tobacco product sales restrictions. The Court of Appeals further stated that even if the Tobacco Control Act had the preemption that R.J. Reynolds claimed it did, the County’s flavored product sales restriction would be exempted under the text of the Act preserving local authority to regulate sales. The Court denied R.J. Reynolds’ petition for en banc rehearing on May 11, 2022.
The case remains OPEN pending any possible appeal.