The tobacco industry challenged a local flavored tobacco product ordinance adopted by the City of Edina, Minnesota, arguing that the ordinance is preempted by the Family Smoking Prevention and Tobacco Control Act.
Why It Matters for Public Health
The tobacco industry, led by R.J. Reynolds, has brought numerous, largely unsuccessful, lawsuits challenging local sales restrictions of flavored tobacco products. Often these challenges are based on the ground that the proposed policies are unconstitutional and preempted by federal law. While the district court’s reasoning in this case differed from the reasoning of courts in similar cases, the court still upheld the Edina ordinance, underscoring the ability of local governments to enact flavored tobacco product sales restrictions.
On June 16, 2020, the Edina City Council approved an ordinance that prohibits the sale of any flavored tobacco product and e-cigarette that has a taste or smell other than tobacco, including products with candy, desserts, herbs, spices, mint, and menthol flavors. The ordinance took effect on September 1, 2020.
On June 17, 2020, R.J. Reynolds and two convenience stores sued the City of Edina, challenging the constitutionality of the ordinance. The complaint alleged that:
- Edina’s ordinance is expressly preempted by the Tobacco Control Act because the Act preempts local and state governments from setting tobacco product standards; and
- Edina’s law is impliedly preempted because the Tobacco Control Act allows local governments the authority to prohibit the sale of menthol cigarettes.
On July 9, 2020, R.J. Reynolds filed a motion for a preliminary injunction and on July 23, the city filed a motion to dismiss the lawsuit.
On August 31, the court denied R.J. Reynolds’ motion for a preliminary injunction and granted the city’s motion to dismiss. The court’s reasoning differed from earlier courts in its analysis of this issue, however. Unlike other courts, the district court found that the flavor regulation was in fact a product standard under the Tobacco Control Act. Other courts considering this issue have found that flavored product sales restrictions are not product standards because, rather than regulate how the products are made, sales restrictions simply apply to the sale of a finished product. (see, for example, U.S. Smokeless Tobacco Mfg. Co. v. City of New York (2013)).
The Minnesota district court’s reasoning is notable because it did not rest on a distinction between sales and manufacturing/additives. Rather, it determined that the authority to issue product standards includes the authority to restrict “the sale and distribution of a tobacco product” to the extent it is necessary for the protection of public health. The court also found it compelling that the Tobacco Control Act includes a specific product standard that restricts the sale of flavored cigarettes (other than tobacco and menthol). The court determined that because “‘tobacco product standards’ are not limited to provisions that relate to manufacturing processes and components,” and “include … restrictions on the ‘sale and distribution of [a] tobacco product,’” the Edina ordinance qualified as a tobacco product standard. In effect, the court concluded there was no difference between a flavor restriction and a restriction on certain ingredients.
Importantly, however, the court ruled that even though the Edina ordinance imposed a product standard, under the Tobacco Control Act’s “saving clause” it was also a “requirement relating to the sale . . . of . . . tobacco products by individuals of any age” and thus not preempted (for more on preemption and tobacco litigation, see Untangling the Preemption Doctrine in Tobacco Control (2018)). The court dismissed the industry’s argument that the Edina ordinance was impliedly preempted by the TCA because it was not an obstacle to the desire of Congress for uniformity in manufacturing standards or premarket review processes. Rather than being preempted, the court stated, “[t]he federal government has—through inaction [on menthol]—left countless matters to be regulated by state and local governments.”
In short, while the reasoning differed from other courts considering federal preemption of flavored tobacco product sales restrictions, the conclusion was the same: the court found that the Edina ordinance was neither expressly nor impliedly preempted by the TCA.
On September 4, 2020, the industry plaintiffs appealed to the Eighth Circuit. On December 2, the Public Health Law Center, joined by twenty-four other national public health and medical organizations, filed an amicus brief on behalf of the City of Edina. Our brief argues that:
The TCA preserves long-established authority of state and local government over tobacco product sales within their borders;
Edina’s restriction on the sale of flavored tobacco products is not a “product standard” preempted by the TCA; and
The flavors ordinance is not impliedly preempted, because it does not pose an obstacle to the FDA’s regulatory authority.
On May 12, 2021, oral arguments were held and on February 27, 2023, the appellate court rejected the industry’s claims, affirming the district court’s decision and ruling in favor of the City of Edina. “No matter how RJR tries to frame this case, the end result is the same. … The TCA does not preempt the Ordinance.”
Litigation Status (CLOSED)
On March 13, 2023, R.J. Reynolds filed petitions for rehearing en banc and for rehearing by the panel. On April 18, 2023, the appellate court denied both petitions. The city’s flavored tobacco product ordinance is now in effect.