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Judge upholds flavored tobacco ban in California

The ban on menthol cigarettes, flavored vape tanks and other products took effect in December 2022.

(CN) – California's flavored tobacco ban is here to stay after a federal judge on Wednesday dismissed a lawsuit filed by R.J. Reynolds and other tobacco companies against California over SB 793.

The law, signed by Governor Gavin Newsom in 2020, banned the sale of flavored tobacco products, including flavored vape tanks and menthol cigarettes. Tobacco companies gathered signatures to force a vote on the law and in 2022, voters overwhelmingly approved the ban by a two-to-one margin. The day after Election Day, before all the votes were even counted, tobacco companies filed a lawsuit to block SB 793, which they argued was preempted by two federal laws: the Tobacco Control Act and the dormant commerce clause in the U.S. Constitution.

That first argument was a curious one, since it had already been rejected by the Ninth Circuit that year, in the tobacco companies' lawsuit against a similar ban in Los Angeles County. In a 2-1 split decision, the judicial panel found that the Tobacco Control Act allows states to enact more stringent regulations to smoking. Last month, the U.S. Supreme Court declined to hear a challenge to the case.

In their lawsuit against the state of California, the plaintiffs also argued that SB 793 violated the dormant commerce clause, an interpretation of the Constitution that argues that states may not pass a law that imposes "substantial burdens on interstate commerce."

"By banning characterizing flavors in most tobacco products, California has attempted to dictate how out-of-state manufacturers produce their tobacco products," the plaintiffs said in their lawsuit. "The law thus directly regulates interstate commerce."

U.S. District Judge Cathy Ann Bencivengo disagreed, writing in her dismissal order: "The text of SB 793 does not expressly discriminate against out-of-state entities, as it only regulates the actions of retailers in California. Additionally, the purpose of SB 793 was to promote the health and safety of California residents, not discriminate against out-of-state entities."

Since the law banned out-of-state manufacturers and in-state manufacturers alike from selling flavored tobacco, the dormant commerce clause argument didn't apply.

"Californians can breathe easier knowing that Big Tobacco’s latest attempt to access a new generation of users has been dismissed," California Attorney General Rob Bonta tweeted Wednesday after the ruling was released.

Lawyers for the tobacco company did not respond to an email requesting a comment on the ruling.

California's ban on flavored tobacco took effect Dec. 21, 2022. According to the California Department of Public Health's website, the ban covers "flavored electronic cigarettes (e-cigarettes) that deliver nicotine or another vaporized liquid, e-liquids, menthol cigarettes, flavored little cigars and cigarillos, flavored smokeless tobacco, flavored blunt wraps, and flavored loose leaf roll-your-own tobacco." It does not apply to "flavored loose-leaf pipe tobacco or flavored premium cigars with a wholesale price of $12 or more." Flavored shisha, also known as hookah tobacco, is still legal but can only be sold in certain licensed establishments. The ban applies to retailers, fining them $250 for each infraction. It is not illegal to buy or smoke flavored tobacco.

The law makes California only the second state in the country, after Massachusetts, to have banned all flavored tobacco products, including menthol cigarettes. In April, the U.S. Food and Drug Administration proposed a nationwide ban on menthol cigarettes, a would-be regulation that is currently in public comment period.

"Menthol is a flavor additive with a minty taste and aroma that reduces the irritation and harshness of smoking," the FDA wrote. "This increases appeal and makes menthol cigarettes easier to use, particularly for youth and young adults."

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