R.J. Reynolds Sues California Over Flavored Tobacco Ban

R.J. Reynolds and other companies sue to enjoin and invalidate California flavor ban bill


In the lawsuit, the plaintiffs argue that Senate Bill 793 falls under the federal Family Smoking Prevention and Tobacco Control Act’s (TCA) preemption clause.  This is the law that Congress passed in 2009 to grant the U.S. Food and Drug Administration (FDA) the authority to regulate tobacco products.  Under this law, the FDA has the power to enact a tobacco product standard, which is a regulation that reduces or eliminates an ingredient in a tobacco product or a constituent in tobacco smoke.  Although the FDA has proposed federal tobacco product standards to ban the use of menthol in cigarettes, RYO tobacco, and heated tobacco, and to prohibit all flavors in cigars, these tobacco product standard regulations are still moving through a nine-step federal regulatory adoption process called “rulemaking” and have not yet been enacted and implemented.

The preemption argument in the lawsuit has the following elements:

  1. The FDA has not adopted a federal tobacco product standard banning flavors in tobacco products.
  2. The TCA provides that a state cannot adopt or enact “any requirement which is different from, or in addition to…tobacco product standards.”
  3. Senate Bill 793 is a tobacco product standard and is broader and more restrictive than current FDA regulations because it bans all flavors, including menthol, in all tobacco products.
  4. Senate Bill 793 is therefore preempted by the TCA because the ban on all flavors is “different from, or in addition to” current FDA tobacco product standards.
  5. The TCA has an exception or “savings clause” that allows a state to adopt requirements “relating to the sale” of tobacco products, but this savings clause does not provide that states can adopt requirements relating to prohibiting the sale of tobacco products.

In addition to the claim of preemption, the plaintiffs also argue that because Senate Bill 793 attempts to regulate manufacturers that are not located within the State of California, then this legislation violates the dormant Commerce Clause of the United States Constitution.  The dormant Commerce Clause limits a state’s authority to enact laws that impose substantial burdens on interstate commerce.  By regulating interstate commerce through its prohibition on the distribution into and sale of flavored tobacco products within the State of California, Senate Bill 793 has exceeded a state’s inherent limits of its authority over commerce across the United States. As additional information about this pending lawsuit is obtained, NATO will send update reports to association members.

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