California Flavor Ban Faces Legal Challenge from Tobacco Companies

It has been two years since Governor Gavin Newsom signed Senate Bill 793. The bill prohibits the sale of flavored tobacco products, including flavored e-cigarette pods and menthol cigarettes. Various tobacco companies have rallied together to force a statewide referendum on the law. Although more than half of the votes have yet to be counted, the media has declared that the referendum will pass the bill (currently leading by 24%).

On February 25, 2020, the packaging of Juul Labs' electronic cigarettes and mint-flavored pods, located in Pembroke Pines, Florida, was photographed by Brynn Anderson for the Associated Press.

California is just one of over 300 jurisdictions in the United States that have some form of ban on flavored tobacco. Many of these bans have been challenged in court, with most resulting in failure. Tobacco companies have already filed a lawsuit against California's flavor ban in 2021, only to have it dismissed by a federal judge who instructed the plaintiffs to wait for voter intervention before filing another lawsuit.

The lawsuit states that the referendum has already taken place and the harm faced by the plaintiff is no longer theoretical but rather more concrete and urgent. Unless the judge agrees to intervene, the injunction will take effect no later than December 21, 2022.

The tobacco company argued in its lawsuit that the 2009 Family Smoking Prevention and Tobacco Control Act (TCA) allowed states and municipalities to regulate tobacco products, but did not prohibit the use or sale of tobacco products.

According to the lawsuit, "The ban falls under the clear priority clause of the TCA, which takes precedence over 'any [state] requirement' that is different from or supplemental to federal requirements for tobacco product standards," the lawsuit stated. "The flavor ban is a typical tobacco product standard.

In 2020, R.J. Reynolds Tobacco filed a lawsuit to prevent Los Angeles County from banning flavored tobacco, using the same arguments. However, the lawsuit was dismissed, and in March 2022, the Ninth Circuit Court of Appeals upheld the ban in a 2-1 decision.

In most rulings, Circuit Judge Lawrence VanDyke, who was appointed by Donald Trump, wrote that the TCA clearly allows local authorities to create regulations that are more stringent than the TCA. The law divides the sole authority of creating tobacco product standards among the federal government while also reserving the power for states, localities, and tribes to regulate the "complete prohibition of some or all tobacco products sales," thus balancing federal and local powers.

This does not bode well for the latest lawsuit against the tobacco company. The company's attorney, Steven Geise, did not respond to requests for comment via phone and email.

A spokesperson for California Attorney General Rob Bonta stated in a written statement that the state has been striving to protect our youngest residents from the destructive effects of smoking, but big tobacco companies have repeatedly attempted to overturn these efforts. Although we haven't officially received a lawsuit yet, we look forward to strongly defending this important law in court.

Opponents of flavored tobacco refer to it as a gateway drug with the ability to entice young people to smoke, regardless of whether or not it is intentionally marketed towards them. While some believe that e-cigarettes are a less harmful form of nicotine intake, others view nicotine addiction, particularly among youth, as a serious issue. The Center for Disease Control warns that nicotine can impair adolescent brain development and that young people who use e-cigarettes are more likely to start smoking in the future.

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