Similar litigation ongoing in other areas of country,
LAKEVILLE, Minn. — On Aug. 7, 2020, a federal district court judge dismissed a lawsuit filed by R.J. Reynolds Tobacco Co., American Snuff Co. LLC and Santa Fe Natural Tobacco Co. Inc. against the County of Los Angeles and the County of Los Angeles Board of Supervisors. The lawsuit asked the court to declare that the Los Angeles County ordinance banning the sale of flavored tobacco product is preempted by federal law and to enjoin enforcement of the ordinance.
On Sept. 24, 2019, the Los Angeles County Board of Supervisors approved an ordinance that prohibited the sale of menthol cigarettes and all other flavored tobacco products. The lawsuit claimed the Los Angeles County ordinance was preempted by the Family Smoking Prevention and Tobacco Control Act—the federal law that authorizes the U.S. Food and Drug Administration (FDA) to regulate tobacco products—because local and state governments are prohibited from adopting 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 FDA by Congress to reduce or eliminate an additive or constituent in a tobacco product or tobacco product smoke.
The lawsuit also claimed that the ordinance was impliedly preempted by federal law because the ordinance stood as an obstacle to Congress’ goal of having national manufacturing standards for tobacco products and interfered with both Congress and the FDA’s decision to allow certain tobacco products to remain on the market.
The federal district judge ruled that the Los Angeles County flavor ban ordinance “is not expressly preempted by the [Family Smoking Prevention and Tobacco Control Act] because [the ordinance] does not regulate tobacco product standards.” The court went on to state that the Family Smoking Prevention and Tobacco Control Act “permits states and localities to prohibit the sale of tobacco products even if those sales bans are stricter than federal law.” In short, the judge concluded that Los Angeles County ordinance is enforceable because even though it is more restrictive that the federal law, the ordinance itself does not create a product standard. The court also concluded that federal law did not impliedly preempt the ordinance.
The plaintiffs can appeal the district judge’s decision to the Ninth Circuit Court of Appeals. There also remain at least five other lawsuits in the country challenging local tobacco flavor bans, including San Diego County, California and the cities of Philadelphia (two separate lawsuits), Edina, Minn., and Palo Alto, Calif.
Thomas Briant is the executive director of NATO, a tobacco retailing association based in Lakeville, Minn. Reach him at email@example.com.
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