Over the past decade, at least five states and hundreds of localities have passed, or attempted to pass, laws banning flavored tobacco products. To date, litigants have brought many challenges to these laws, often arguing that such bans are preempted under the federal Family Smoking Prevention and Tobacco Control Act (TCA). This argument, however, has largely proven unsuccessful — a trend that continued in January when the U.S. Supreme Court declined to hear R.J. Reynolds Tobacco Company’s challenge to California’s ban on the sale of flavored tobacco products.
Before the U.S. Court of Appeals for the Ninth Circuit and in its petition for certiorari to the Supreme Court, R.J. Reynolds argued that the TCA expressly preempts “any” state law that is “different from, or in addition to” federal “tobacco product standards” — a phrase R.J. Reynolds argued includes state standards on permissible flavors.
The Ninth Circuit rejected that same argument in 2022, however, when considering R.J. Reynolds’ challenge to the County of Los Angeles’ ban on flavored products. The court found that the term “tobacco product standards” referred to manufacturing and marketing standards that cover activities up until the actual point of sale, but not to the point of sale itself. In the court’s view, because the ban focused on the sale of flavored tobacco products, it was not preempted. Similarly, the court found that the TCA expressly carved out sales restrictions in an exception to the law’s preemption clause, thereby allowing states and localities to regulate the sales of tobacco products, including flavored tobacco products. The Ninth Circuit reaffirmed this interpretation when R.J. Reynolds challenged California’s statewide ban on flavored tobacco products.
The Supreme Court’s decision to not hear an appeal of R.J. Reynolds’ challenge of the Los Angeles County ordinance and, more recently, of California’s statewide ban do not bode well for such arguments in the near-to-medium term. The high court might reconsider if there were conflicting decisions between various courts of appeals, but that does not seem likely at this time. For example, the First, Second, and Eighth Circuits have also rejected similar federal preemption challenges to flavored tobacco product bans from various tobacco companies. Although the Court’s decision not to consider an appeal does not reflect its view on the merits of the appeal, it seems unlikely that the Court will consider the substance of the federal preemption argument anytime soon.
State law challenges to local flavor bans have had greater success, although the results are mixed. For example, consider the tale of two counties in Oregon. In 2022, Oregon’s Washington County Circuit Court ruled that a state law providing localities the authority to enforce standards for regulating the retail sale of tobacco products preempted a local flavor ban because that state law did not include the authority to “delete” state standards by enacting a blanket prohibition on the retail sale of flavored tobacco and nicotine products. By contrast, in September 2023, the Multnomah County Circuit Court found that a similar ordinance was not preempted by the same Oregon state law. The decisions are both pending appeal, and the Oregon Court of Appeals stayed the Multnomah court’s decision in December 2023. On the other side of the country, in 2020, a U.S. district court found that the City of Philadelphia’s tobacco flavor ban was likely preempted under Pennsylvania law regarding youth access to tobacco. In 2022, Philadelphia ultimately agreed in a stipulated consent order that prohibited the city from enforcing the ban.
Relatedly, some have turned to state legislatures to pass new laws that more clearly preempt local flavor bans. For example, on January 25, Ohio lawmakers overrode Governor Mike DeWine’s veto of a bill that prevents local governments from banning flavored vape and tobacco products. This means that the flavor bans approved in the state’s capital of Columbus and other Ohio cities are now overturned. More than a dozen states now have such laws preempting local flavor bans.
Why This Matters
Because the federal preemption challenges to state and local bans on flavored tobacco products have not prevailed to date, and state law challenges have had varying levels of success, we are left with a patchwork of state and local laws that treat flavored tobacco products differently from jurisdiction to jurisdiction. In this environment, industry members must closely track legislative developments and legal challenges to ensure they adhere to growing restrictions on the sales of flavored tobacco products.
