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Ninth Circuit:
L.A. County’s Flavored Tobacco Ban Is Valid
VanDyke Writes for Majority of Three-Judge Panel in Rejecting Contention That Federal Legislation Is Preemptive
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday, in a 2-1 decision, declared that the County of Los Angeles’s ban on sales of flavored tobacco products, including menthol cigarettes, is not preempted by federal legislation.
Circuit Judge Lawrence VanDyke wrote for the majority in proclaiming that the Family Smoking Prevention and Tobacco Control Act (“TCA”), enacted in 2009, does not preclude enforcement of the county ordinance, rejecting the contrary stance by the plaintiffs, R.J. Reynolds Tobacco Company and others. He was joined by District Court Judge Karen E. Schreier of the District of South Dakota, sitting by designation.
The decision affirms a dismissal with prejudice of the tobacco companies’ action by District Court Judge Dale S. Fischer of the Central District of California.
Circuit Judge Ryan D. Nelson dissented.
Local Authority Preserved
While the TCA contains a preemption clause, VanDyke noted, it also has a “preservation clause,” providing that a “political subdivision of a State” may still “enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter….”
It specifies, he noted, that this includes “a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the State, or measures relating to fire safety standards for tobacco products.”
The TCA also has a “savings clause,” he pointed out, which says that the preemption clause “does not apply to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of. or use of, tobacco products by individuals of any age, or relating to fire safety standards for tobacco products.”
Los Angeles’s ordinance, adopted in September 2019, provides: “[I]r shall be a violation of this Chapter for a tobacco retailer/licensee or its agent(s) or employee(s) to sell or offer for sale, or to possess with the intent to sell or offer for sale, any flavored tobacco product or any component, pair, or accessory intended to impart, or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices.”
VanDyke’s Opinion
VanDyke wrote:
“The TCA’s…unique preemption structure gives the federal government exclusive power to set ‘tobacco product standards,’ while preserving state, local, and tribal authority to regulate or ban sales of those products altogether. Consistent with this structure, it would be a mistake to read ‘tobacco product standards’ in the TCA’s preemption clause so broadly as to encompass the type of sales ban challenged in this case—particularly since the TCA both expressly preserves and exempts from preemption local authority over that exact type of regulation. The preemption clause therefore does not cover the County’s sales ban. But even if it did. the savings clause ‘saves’ it from preemption because a sales ban qualifies as a ‘requirement[] relating to the sale’ of tobacco products.
“We therefore hold that TCA does not expressly preempt the County’s sales ban. And given that Congress explicitly preserved local authority to enact the very type of sales ban at issue here, we also reject Appellants’ claim of implied preemption.”
Nelson said that “[b]ecause Los Angeles’s ban falls within the preemption clause and is neither preserved nor saved, I would hold that it is expressly preempted.”
Jason C. Wright of Jones Day’s Los Angeles office joined with colleagues in the firm’s District of Columbia office in arguing the tobacco companies’ position. Kent R. Raygor and Valerie E. Adler of Sheppard Mullin Richter & Hampton, LLP’s downtown Los Angeles office represented the county and members of the Board of Supervisors.
The case is R.J. Reynolds Tobacco Co. v. County of Los Angeles, 20-55930.
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