The following article was submitted by the National Association of Tobacco Outlets (NATO)
On June 1, 2020, R.J. Reynolds Tobacco Company, American Snuff Company, LLC, and Santa Fe Natural Tobacco Company, Inc. filed a lawsuit in the Federal District Court for the Central District of California against the County of Los Angeles and the County of Los Angeles Board of Supervisors seeking declaratory and injunctive relief against the Los Angeles County Tobacco Ordinance which bans the sale of menthol cigarettes and every flavored tobacco product.
Background: On September 24, 2019, the County of Los Angeles Board of Supervisors approved an ordinance that prohibits the sale of menthol cigarettes and all flavored tobacco products. While the Board of Supervisors was primarily concerned about responding to the youth vaping issue, the ordinance enacted much broader sales prohibitions making it illegal to sell any flavored tobacco product or component, part or accessory of a tobacco product that imparts a characterizing flavor other than the taste or aroma of tobacco.
Legal Claims Against the New FDA Cigarette Health Warnings: The lawsuit filed against the County of Los Angeles Board of Supervisors has two main claims.
- Express Pre-Emption Claim
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 FDA by Congress to reduce or eliminate an additive or constituent in a tobacco product or tobacco product smoke. Despite this pre-emption provision in the federal law, the Los Angeles County Board of Supervisors enacted a product standard because the ordinance regulates flavor ingredients and constituents in cigarettes and tobacco products by banning the sale of flavored tobacco products. Moreover, Congress enacted a special rule product standard as a part of the Family Smoking Prevention and Tobacco Control Act that banned flavored cigarettes other than tobacco and menthol-flavored cigarettes. Since the Los Angeles County ordinance bans menthol cigarettes, this ban is “different from, and in addition to” the federal law allowing menthol cigarettes to be sold and, therefore, should be pre-empted.
- Implied Pre-Emption Claim
The Family Smoking Prevention and Tobacco Control Act also impliedly pre-empts the Los Angeles 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” pre-emption 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. The Los Angeles County ordinance ban of flavored products is in direct conflict with these two purposes. Since the ordinance is in conflict with the federal law purposes, the Los Angeles County ordinance should be pre-empted under the “obstacle pre-emption” principle.
Request for Relief: Under the lawsuit, the Federal District Court is being asked to issue a ruling that includes the following relief:
- Declare that the Family Smoking Prevention and Tobacco Control Act pre-empts the Los Angeles County Tobacco Ordinance ban on the sale of menthol cigarettes and flavored smokeless tobacco products, making the ordinance invalid and unenforceable.
- Issue a preliminary and permanent injunction preventing the Los Angeles County Board of Supervisors from enforcing and implementing the ordinance’s ban on the sale of menthol cigarettes and flavored smokeless tobacco products.
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