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Lawsuit Filed Against San Diego County Flavor Ban Ordinance
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Lawsuit Filed Against San Diego County Flavor Ban Ordinance

Rule took effect July 1, bans sale of all flavored smoking products,

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LAKEVILLE, Minn. — NATO has previously reported on lawsuits challenging local flavored tobacco product ban ordinances in Los Angeles County; Edina, Minn.; and Philadelphia. A fourth such suit was filed on July 9, 2020 by R.J. Reynolds Tobacco Co., American Snuff Co. LLC, and Santa Fe Natural Tobacco Co. Inc. in the Federal District Court for the Southern District of California against the County of San Diego.

This suit seeks declaratory and injunctive relief against the San Diego County Tobacco Ordinance, enacted Jan. 28, and effective July 1, which bans the sale all flavored smoking products–including menthol cigarettes, flavored cigars, pipe tobacco and flavored vapor products–in the unincorporated areas of San Diego County.

While the Board of Supervisors’ primary concern was youth vaping, the ordinance enacted much broader sales prohibitions, making it illegal to sell any flavored smoking product, defined as products “containing, made or derived from tobacco or nicotine that is intended for smoking and that emits a taste or smell, other than the taste or smell of tobacco.”

The lawsuit makes similar claims to those lawsuits filed against the Los Angeles County and Edina, Minn., flavor ban ordinances.

First, the suit claims the Family Smoking Prevention and Tobacco Control Act (the federal law that authorizes the FDA to regulate tobacco products) expressly denies state and local governments the ability to adopt a tobacco product standard that is “different from, or in addition to” federal tobacco product standards. A product standard is a power granted to the Food and Drug Administration (FDA) by Congress to reduce or eliminate an additive or constituent in a tobacco product or tobacco product smoke. The San Diego County ban on flavored smoking products is “different from, or in addition to” federal law and is therefore preempted.

Second, the suit claims that the Family Smoking Prevention and Tobacco Control Act also impliedly preempts the San Diego County ordinance because the regulations stand as an “obstacle” to the underlying purposes of this federal law. The U.S. Supreme Court has held that this kind of “obstacle” preemption occurs when a state or local law “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.”

One of the underlying purposes of the Family Smoking Prevention and Tobacco Control Act is to authorize the FDA to set national product standards to control the manufacturing of tobacco products and the ingredients in the tobacco products. Another purpose of the federal law is to continue to permit tobacco products to be sold to legal age adults while making them inaccessible to underage persons. Under its authority, the FDA has been exploring the regulation of flavors in tobacco products. The San Diego County ban of flavored smoking products is in direct conflict with the federal government’s efforts to address flavors in tobacco products, and is thus preempted.

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The plaintiffs ask the Federal District Court to declare that the Family Smoking Prevention and Tobacco Control Act preempts the San Diego County ban on the sale of flavored smoking products, making the ordinance invalid and unenforceable, and to issue preliminary and permanent injunctions preventing the San Diego County Board of Supervisors from enforcing and implementing the ordinance’s ban on the sale of flavored smoking products.

Thomas Briant is the executive director of NATO, a tobacco retailing association based in Lakeville, Minn. Reach him at info@natocentral.org.

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