Synopsis

Tobacco industry challenges San Diego’s flavored tobacco product ordinance, arguing that the ordinance is expressly and impliedly preempted by the Tobacco Control Act.

Why It Matters for Public Health

This case is yet another lawsuit challenging local efforts to restrict the sale of flavored tobacco products brought by the Tobacco Industry. The County of San Diego enacted a broad restriction on the sale of commercial tobacco products, including menthol cigarettes, though the restriction exempted hookah tobacco. The industry challenged both the restrictions on the sale of products and the exemption. Notwithstanding the ongoing litigation, the County broadened the sales restriction in December, 2020 to include nicotine punches and lozenges. All prior challenges to local flavored tobacco product sales restrictions have failed, bolstering the County’s efforts to continue to elevate public health protections in the face of industry intimidation.

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 prohibited 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 8, 2020, the County Board of Supervisors adopted a new Tobacco Retail Licensing ordinance, which repeals the current prohibition on the sale of “flavored smoking products” and replaces it with a prohibition on the sale of “flavored tobacco products.” That new ordinance includes electronic products, smokeless products, lozenges, and nicotine pouches, though it still exempts flavored hookah/shisha sold by a hookah retailer and does not apply to loose leaf tobacco or premium cigars.

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 to the ordinance. 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:

1. 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
2. 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. After the County enacted a tobacco retail licensing ordinance that replaced the language in the original ordinance in December, the plaintiffs filed an amended complaint on March 4, 2021. The complaint also added two new plaintiffs who manufacture smokeless products and nicotine lozenges and pouches.

The court dismissed the case and denied the industry’s preliminary injunction motion on March 29th, 2021. 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).

Proceedings in the Court of Appeals for the 9th Circuit

On April 13th, 2021, the industry plaintiffs filed a notice of appeal with the 9th Circuit Court of Appeals. A mediation conference was scheduled for May 27th, 2021. On May 28th, 2021, the case was administratively closed until August 25, 2021, pending settlement discussions.

Litigation Status (OPEN/CLOSED)

The industry plaintiffs appealed the district court’s decision on April 13, 2021. A mediation conference took place on May 27, 2021 and the case had been administratively closed with periodic mediation reporting to the court. The administrative closure period concludes on 8/22/2022 pending any further extension or activity.