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Supreme Court clears the way for California ban on flavored tobacco

Tobacco companies wanted emergency intervention, claiming the law's enactment later this month will cost them millions. 

WASHINGTON (CN) — The high court snuffed an emergency challenge Monday to California's new law that bans the sale of flavored tobacco products. 

R.J. Reynolds leads the suit alongside other members of the industry, having failed to head off the law at the ballot box last month. 

The California Legislature moved to ban the sale of flavored tobacco products across the state in 2020, saying it would stymy an emerging public health problem of youth addiction because flavored tobacco products tend to appeal to younger demographics. 

“Those laws respond to the manifest threat that flavored tobacco products present to public health: As the federal government has acknowledged, flavored tobacco products are the central cause of unfavorable trends in youth addiction to tobacco,” Helen Hong, deputy solicitor general at the California Department of Justice, wrote in the state’s brief. “And young people who are initiated into tobacco use through flavored tobacco products are more likely to become long-term users and suffer grievous health effects as a result.”   

Though the law had been set to take effect in 2021, tobacco companies kicked the issue down the road with a petitioned to send the matter to voters the following year. The companies spent more than $20 million on the campaign, but 63.4% of California voters approved Proposition 31 in the November race, setting up the law to go into effect on Dec. 21. 

One day after the measure was approved, R.J. Reynolds and other tobacco industry members filed their suit. Reynolds and others claim that the federal Tobacco Control Act preempts California from passing regulations that differ from federal standards. Since the federal government has not banned flavored tobacco, the companies say, California cannot either. 

Tobacco companies warned of the large financial consequences of this law for their businesses. 

“For example, entities like R.J. Reynolds Tobacco Company will be unable to sell menthol cigarettes — which make up approximately one-third of the cigarette market — in California,” Noel Francisco, an attorney with Jones Day representing the companies, wrote in their petition. “Likewise, Modoral will be entirely shut out from California, and thus stands to lose millions of dollars a year, because it only produces flavored tobacco products.” 

Lower courts declined to put the law on hold while the lawsuit proceeds, leaving the companies to ask the high court for emergency relief. The justices denied the application without explanation or any noted dissents late Monday. 

“Having failed in that effort by an overwhelming margin, R.J. Reynolds Tobacco Co. and the other applicants now ask this Court to enjoin that statute, in order ‘to preserve the status quo’ under which they profit by selling addictive products that are indisputably harmful to public health and the public fisc,” Hong wrote. 

California says that the government passed the Tobacco Control Act to make regulation easier, but it never took away the rights of states. 

“In a section of the Act titled ‘Preservation of State and local authority,’ Congress expressly preserved state authority to restrict or prohibit the sale of tobacco products and expressly excepted that authority from the scope of the Act’s narrow preemption provision,” Hong wrote. “Nonetheless, in the years since Congress enacted the TCA, the tobacco industry has filed lawsuits across the country taking the position that laws restricting or prohibiting the sale of flavored tobacco products were expressly preempted by that Act. In all those years, not a single court has agreed with that position.” 

With its law set to go into effect later this month, California will join Massachusetts as the second state to restrict the sale of all flavored tobacco products. New York, New Jersey and Rhode Island have enacted bans on the sale of flavored e-cigarettes. 

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