California Ban on Flavored Tobacco Upheld by Supreme Court

On November 8, 2022, voters in California approved Proposition 31, a referendum on the 2020 law that would ban the retail sale of certain flavored tobacco products.

Less than three weeks later, lawyers representing RJ Reynolds Tobacco Company, RJ Reynolds Vapor Company, and other Reynolds tobacco subsidiaries filed an emergency lawsuit with the US Supreme Court seeking to prohibit the proposal and enforcement of Senate Bill 793.

Across the state, more than 63% of voters support the proposal, with even 55% of voters in Riverside County voting in favor. However, Reynolds was not deterred and has appealed to the Supreme Court on November 29th.

This week, the Supreme Court of the United States rejected the appeal.

Reynolds' lawyers argued that the Tobacco Control Act (Public Law 111-31, approved in June 2009) prohibits states and local jurisdictions from enacting tobacco product standards that differ from federal standards. Furthermore, the federal government has not yet banned these flavored tobacco products.

Both the district court and the Ninth Circuit Court of Appeals did not prevent the enforcement of SB 793, which is why Reynolds appealed to the Supreme Court. The Ninth Circuit Court of Appeals had previously been overturned in cases related to the law.

According to documents submitted by Reynolds' lawyers, "this request stems from the Ninth Circuit Court's decision to effectively ignore the explicit priority purchase provisions of the Tobacco Control Act and allow states to completely prohibit the sale of flavored tobacco products that do not meet the state's tobacco product standards. If judicial intervention is not immediately taken, the petitioners will suffer irreparable harm, as they will be unable to sell their products in one of the largest markets in the United States.

In response, the California Department of Justice told the court that Reynolds is more concerned with those unable to purchase flavored products, as opposed to the millions of children and teenagers who have become smokers after using these products. The state highlighted that Reynolds' research, which contradicts this point, was prepared by one of its affiliated organizations and not independently.

The state argues that the implementation of SB 793 has been delayed for almost two years by unsuccessful public campaigns, allowing children and teenagers throughout the state to develop the deadly habit of tobacco use through flavored tobacco products during this period. Voters have now spoken by rejecting the tobacco industry's policy arguments and approving the ban on the retail sale of flavored tobacco products. The balance has been decisively tipped, enabling the will of the voters to take effect.

The Supreme Court declined to comment or raise any objections, instead issuing a brief statement rejecting Reynolds' appeal, stating: "The injunction application submitted to Judge Cogan and submitted to the Court by her is denied.

After the Supreme Court ruling, California Attorney General Rob Bonta praised the decision in a press release, stating "At a time when tobacco is America's number one preventable killer, flavored tobacco products are attracting a new generation of young smokers. I commend the Supreme Court for rejecting Big Tobacco's recent attempt to block California's common-sense ban on flavored tobacco products. California voters overwhelmingly passed this ban in November's election and now it will finally go into effect. I look forward to continuing to defend this important law against any further legal challenges.