Ninth Circuit upholds LA County’s ban on flavored tobacco products

(CN) — The Ninth Circuit Court of Appeals on Friday shot down a challenge by several tobacco companies, including R.J. Reynolds, to a lower court ruling which had dismissed a lawsuit over Los Angeles County's ban on flavored tobacco products, including menthol cigarettes, passed in 2019.

In a 2-1 split decision, the panel of judges ruled that the Family Smoking Prevention and Tobacco Control Act (TCA), a federal law passed in 2009, does not preclude local jurisdictions from enacting their own bans or regulations on sales of tobacco products.

"The TCA explicitly preserves local authority to enact more stringent regulations than the TCA," Circuit Judge Lawrence VanDyke, a Donald Trump appointee, wrote in the majority decision. The law "carefully balances federal and local power by carving out the federal government’s sole authority to establish the standards for tobacco products, while preserving state, local, and tribal authority to regulate or ban altogether sales of some or all tobacco products."

LA County is just one of more than 300 jurisdictions in the country to have banned flavored tobacco products. California passed its own ban in 2020, but it is on hold pending a voter referendum in November.

Many of those state and local bans were challenged in court by R.J. Reynolds and other companies. Most of those challenges failed. A challenge to a law in Edina, Minnesota was appealed to the Eight Circuit, which heard oral arguments in May and is still pending.

"The vast majority of young people start out by using a flavored tobacco product," said Joelle Lester, director of commercial tobacco control programs at the Public Health Law Center, which filed a brief in the Ninth Circuit appeal. "And menthol is by far the most harmful flavor in a tobacco product. Menthol makes the poison go down easier. It’s part of the tobacco industry's campaign to attract and addict young users."

Attorney Kent Raygor, who argued the appeal for the county, said in a written statement: "The County is pleased that its efforts to protect the public health, particularly among our youth, through its ban on the sale of flavored tobacco products has been upheld by the Ninth Circuit Court of Appeals."

The lawyer for R.J. Reynolds did not respond to a phone call or email requesting a comment.

The tobacco companies argued, in their initial lawsuit seeking to block the ban and in their subsequent appeal, that the TCA includes clauses that preempt local jurisdictions from setting their own "tobacco product standards." Among other things, they argued that menthol cigarettes should remain on the market since they weren't expressly banned by the TCA.

One judge, Ryan Nelson, a Donald Trump appointee, dissented from the majority, arguing that the flavor of a cigarette is a "tobacco product standard," which can only be regulated by the federal government, according to the TCA.

"The TCA provides that no cigarette shall have any 'artificial or natural flavor (other than tobacco or menthol),'” Nelson wrote. "In the same section, the statute then calls this requirement a 'tobacco product standard.' Congress has spoken: Cigarettes cannot have any flavors except tobacco and menthol, and that requirement is a tobacco product standard. In other words, a flavor ban is a tobacco product standard."

The Ninth Circuit panel was rounded out by Karen Schreier, a U.S. District Judge for South Dakota.

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