RJ Reynolds and California retailers challenge e-cigarette ban

Several cigarette and e-cigarette companies under the Renault Tobacco umbrella have partnered with retailers in the San Diego area and an e-cigarette shop to challenge California's Proposition 31 in federal court. The lawsuit was filed on Wednesday, the day after the proposition passed by a wide margin in a California voter referendum. The proposition prohibits the sale of most flavored e-cigarettes and tobacco products in retail stores.

The plaintiff is requesting that the court invalidate the law approved by voters on Tuesday, claiming that it violates commercial terms and permanently prohibits the state from enforcing the flavor ban. They are also seeking a temporary restraining order to prevent the state from implementing the flavor ban until the bill is fully repealed.

California E-Cigarette Shops Join Tobacco Industry Lawsuit.

The lawsuit was filed in the Southern District Court of California in the United States. The plaintiffs include RJ Reynolds Tobacco Company, RJ Reynolds Vapor Company, American Snuff Company LLC, Santa Fe Natural Tobacco Company Inc., Modoral Brands Inc., Neighborhood Market Association Inc., and Morija LLC (Vapin' the 619). All of the plaintiffs, except for the last two, are subsidiaries of the Reynolds American Inc., which is owned by British American Tobacco.

The same plaintiffs filed a lawsuit in 2020, challenging the flavor ban passed by the California legislature. However, after the ban was postponed, the court dismissed the legal action. A signature collection campaign successfully led to a statewide vote on the law, known as Proposition 31, requiring voters to approve the flavor ban passed by the legislature in 2020.

Renowned Tobacco company, Reynolds Tobacco, has announced that the flavor ban in California has been given priority under federal law.

Renault Tobacco and other plaintiffs argue that California law has priority over federal law, specifically the 2009 Tobacco Control Act (TCA), which prohibits state and local governments from setting tobacco product standards (although they are allowed to regulate sales). The plaintiffs argue that the flavor ban is a type of product standard.

The plaintiff argued that California's ban is unconstitutional because federal law takes precedence, as it goes beyond the flavor restrictions approved by Congress in the Tobacco Control Act. Congress bestowed the FDA with exclusive authority to issue standards for tobacco products.

In fact, voter-approved Proposition 31 in California bans the sale of all flavored vapor and heated tobacco products, including those specifically authorized by the FDA as "appropriate for the protection of public health," and even products that have received modified risk designations from federal regulators, such as the mentholated IQOS device and flavored snuff.

Renovo Tobacco also stated that the flavor ban in California attempts to regulate out-of-state manufacturers, which violates dormant commerce clause.

Reynolds had previously questioned a similar taste ban passed by the city of Los Angeles and lost in court, and has again appealed to the Ninth Circuit Court of Appeals. The decision has been appealed to the United States Supreme Court and it is still unknown whether they will win.

Reynolds and other plaintiffs acknowledged in Wednesday's lawsuit that the district court is currently bound by the Ninth Circuit's decision in the Los Angeles case. However, they believe that this is an incorrect decision (citing a dissenting opinion) and claim that even under the Ninth Circuit's interpretation of the priority provision of the Tobacco Control Act, California's flavor ban is consistent with requirements related to "tobacco product standards" because it specifies the manufacturing process.

The President of the American Vapor Manufacturers Association (AVM), Amanda Wheeler, informed Vaping360 that the Washington D.C. law firm Keller Heckman is preparing a "friend-of-the-court" brief to represent AVM and several California e-cigarette retailers in support of these two lawsuits.

Critics of the lawsuit claim that Reynolds American, the producer of America's top-selling menthol cigarette brand Newport, knew it could not win the legal battle but still stubbornly delayed the ban to sell as much menthol cigarettes as possible before the law came into effect.

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