California Flavored Tobacco Ban Faces Lawsuit by Tobacco Companies

Renowned tobacco companies, along with other tobacco corporations, filed a lawsuit against the state of California on Wednesday in a federal court regarding the state's ban on flavored tobacco, just a day after the state's voters overwhelmingly approved a referendum on the ban. This information was compiled by 2FIRSTS.

It has been over two years since Governor Gavin Newsom signed Senate Bill 793, which prohibits the sale of flavored tobacco products, including flavored e-cigarette cartridges and minty cigarettes. Tobacco companies quickly collected signatures to force a referendum on the law - asking voters whether they approve or reject the ban. While more than half of the state's ballots have yet to be counted, the media has already declared that the referendum will pass (leading by 24% currently).

California is just one of over 300 jurisdictional areas in the United States that have banned flavored tobacco products in some way. Many of these bans have been challenged in court, with most of these challenges ultimately failing. In 2021, a lawsuit was brought against California's flavor ban by tobacco companies, but a federal judge dismissed the case, telling the plaintiffs to wait for voters to weigh in before pursuing legal action.

According to the lawsuit, the damage faced by the plaintiff is no longer theoretical, but concrete and urgent since the referendum has already taken place. Unless a judge intervenes, the injunction will take effect no later than December 21, 2022.

In their lawsuit, tobacco companies argued that the 2009 Family Smoking Prevention and Tobacco Control Act (TCA) allowed state and local governments to regulate tobacco products but not to prohibit their use or sale.

The ban is an explicit priority clause of the TCA that "'takes precedence over' any [state] requirement," which means it is "different from or in addition to" federal requirements regarding tobacco product standards, states the lawsuit. "The flavor ban is typical of tobacco product standards.

In 2020, Reynolds Tobacco filed a lawsuit to block the ban on flavored tobacco in Los Angeles County, using the same argument. The lawsuit was dismissed, and in March 2022, the Ninth Circuit Court of Appeals upheld the decision with a split 2-1 ruling.

The TCA explicitly allows local authorities to enact regulations that are stricter than those set by the TCA itself, wrote Circuit Judge Lawrence VanDyke, who was appointed by Donald Trump, in a majority decision. The law grants the federal government sole authority to establish tobacco product standards, while also preserving the power of states, municipalities, and tribes to regulate or completely prohibit the sale of some or all tobacco products, carefully balancing federal and local power.

The latest lawsuit against the tobacco company doesn't bode well. Their lawyer, 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 declaration, "Big tobacco companies have repeatedly attempted to push states to work towards protecting our youngest residents from the destructive impact of tobacco use. While we have not officially received the lawsuit, we look forward to vigorously defending this important law in court.

Opponents of flavored tobacco claim that it serves as a gateway drug and has a seductive effect on teenagers, regardless of whether it is purposely designed or not. While some argue that electronic cigarettes offer a less harmful form of nicotine ingestion, others believe that nicotine addiction, especially among young people, can be detrimental. According to the Center for Disease Control, nicotine "damages adolescent brain development" and "young people who use e-cigarettes may be more likely to smoke in the future.

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