Synopsis
Industry challenges a local flavored tobacco product ordinance in Edina, Minnesota, Edina City Code 12-257 arguing that the ordinance is preempted by the Tobacco Control Act or on the alternative the Savings Clause.
Why It Matters for Public Health
The Tobacco Industry, led by R.J. Reynolds, has brought numerous lawsuits challenging local efforts to enact flavored tobacco product sales restrictions. Despite industry efforts, no local ordinance restricting the sale of flavored products has been overturned by a court, including in this case. While initially the district court’s reasoning was somewhat different, the 8th Circuit Court of Appeals resoundingly concluded that the municipality could enact a flavors restriction and that it was not preempted by federal law. This case strengthens the jurisprudence that allows local units of government to restrict the sales of commercial tobacco products.
Background
June 16, 2020, the Edina City Council approved an ordinance prohibiting the sale of any flavored tobacco product that has a taste or smell other than the taste or smell of tobacco, including candy, dessert, herbs species, mint, or menthol. The prohibition also includes flavored e-cigarettes. The ordinance took effect on September 1, 2020.
Proceedings
District Court
On June 17, 2020, R.J. Reynolds and two convenience stores filed suit against 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 (TCA) because the TCA preempts local and state governments from setting tobacco product standards; and
- Edina’s law is impliedly preempted because Edina’s ordinance prohibits the sale of menthol cigarettes, which the TCA specifically allows, resulting in conflict preemption.
July 9, 2020, R.J. Reynolds filed a motion for a preliminary injunction. July 23, 2020, the City filed a motion to dismiss the lawsuit. August 20, 2020, a hearing on both motions was held. August 31, 2020, the court denied R.J. Reynolds’ motion for a preliminary injunction and granted the City’s motion to dismiss.
Eighth Circuit
September 4, 2020, the industry plaintiffs appealed the case to the U.S. Court of Appeals for the 8th Circuit. December 2, 2020, the Public Health Law Center, joined by twenty-four other national public health and medical organizations, filed an amicus brief at the U.S. Court of Appeals for the 8th Circuit on behalf of the City of Edina. Our brief argued:
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The Tobacco Control Act preserves long-established state and local state governmental authority over tobacco product sales within their borders;
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Edina’s restriction on the sale of flavored tobacco products is not a “product standard” preempted by the Tobacco Control Act; and
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The flavors ordinance is also not impliedly preempted, because it does not pose an obstacle to the FDA’s regulatory authority.
May 12, 2021, oral arguments were held before the 8th Circuit. February 27, 2023, the 8th Circuit issued its Order agreeing with our arguments for why the Ordinance is not preempted and affirmed the district court. The Court reasoned, "No matter how RJR tries to frame this case, the end result is the same.” “The TCA does not preempt the Ordinance.”
March 13, 2023, industry plaintiffs filed a Petition for Rehearing En Banc, or a request that that the full court rehear the case. The industry plaintiffs argue that if the City’s flavors ban is upheld, it will cause “regulatory bedlam.” They reiterate the arguments that the City is preempted by the TCA and the Savings Clause from making an all-out sales restriction and warns the Court that the “risk of regulatory chaos is real.” Such requests to have the case reheard before the full court are usually denied.
Litigation Status
February 27, 2023, the 8th Circuit Court of Appeals rejected the industry's claims and ruled in favor of the City of Edina. March 13, 2023, RJR filed a Petition for Rehearing En Banc. The Court’s response is pending. Meanwhile, the City’s tobacco product ordinance is active and in force.