Plaintiffs have appealed to the Eighth and Ninth Circuits, challenging flavored tobacco bans in Los Angeles County, California, and the City of Edina, Minnesota. The cases could have implications for similar laws in other States and localities.

Has Congress preempted local authority to ban the sale of flavored tobacco products? Two different U.S. Courts of Appeals will have the opportunity to answer the question in R.J. Reynolds Tobacco Co., et al. v. City of Edina, et al., No. 20-2852 (8th Cir.), and R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 20-55930 (9th Cir.).

The plaintiffs are appealing adverse decisions in each case. The plaintiffs contended that the Family Smoking Prevention & Tobacco Control Act preempts the localities’ ordinances banning the sale of flavored tobacco products. 21 U.S.C. § 387p. The respective U.S. District Courts upheld the ordinances, deciding that they were not preempted. No. 0:20-cv-01402 (D. Minn. Aug. 31, 2020) (granting the City’s motion to dismiss and denying the plaintiffs’ motion for preliminary injunction); No. 2:20-cv-04880 (C.D. Cal. Aug. 7, 2020) (granting the County’s motion to dismiss and denying the plaintiffs’ motion for summary judgment).

As States and localities have shown greater interest in restricting or prohibiting the sale of flavored tobacco products, the appellate decisions in City of Edina and Los Angeles County could be of significant interest beyond the City of Edina and Los Angeles County. That is particularly so for jurisdictions within the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) and the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington).

We will continue to monitor for further developments. Appellate briefing in the cases is expected to close toward the end of 2020.