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Tobacco companies sue California over flavored tobacco ban, hours after voters approve it

R.J. Reynolds and other tobacco companies tried suing over the state's ban last year, but a judge told them to wait until after the referendum. They did, waiting less than a day.

(CN) — R.J. Reynolds and other tobacco companies filed a lawsuit against California on Wednesday in federal court over the state's ban on flavored tobacco, the day after voters in the state overwhelmingly approved a referendum on the ban.

It's been more than two years since Governor Gavin Newsom signed Senate Bill 793, which banned the sale of flavored tobacco products, including flavored vape tanks and menthol cigarettes. Tobacco companies were quick to gather signatures to force a referendum on the law — voters were asked if they approved of the ban, yes or no. Though more than half the state's ballots have yet to be counted, media outlets have declared that the referendum will pass (it currently leads by 24%).

California was just one of more than 300 jurisdictions in the United State to ban flavored tobacco in some way or another. Many of the bans have been challenged in court, and most of those challenges have failed. Tobacco companies have already sued once over California's flavor ban in 2021. But a federal judge dismissed the suit, telling the plaintiffs to wait for the voters to weigh in before suing.

"The referendum has now occurred and the injury Plaintiffs face is no longer theoretical, but concrete and imminent," the complaint reads. The ban is set to go into effect "no later than December 21, 2022," unless a judge agrees to intervene.

In their suit, the tobacco companies argue that a federal law, the Family Smoking Prevention and Tobacco Control Act (or TCA) of 2009, allows states and municipalities to regulate tobacco products, but not to ban their use or sale.

"The ban falls under the TCA’s express preemption clause, 'which preempts 'any [state] requirement' that is 'different from, or in addition to,'  a federal requirement about a tobacco product standard," the suit reads. "A flavor ban is a paradigmatic tobacco product standard."

R.J. Reynolds used the same argument when it sued in 2020 to block Los Angeles County's ban on flavored tobacco. The suit was dismissed, a move that was upheld by the Ninth Circuit Court of Appeals, in a 2-1 split decision, in March 2022.

"The TCA explicitly preserves local authority to enact more stringent regulations than the TCA," wrote Circuit Judge Lawrence VanDyke, a Donald Trump appointee, 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."

That would appear to not bode well for the tobacco companies' latest suit. Their attorney, Steven Geise, did not respond to a phone call and email requesting comment.

"Time and time again, Big Tobacco has attempted to steam roll state efforts to protect our youngest residents from the damaging effects of tobacco use," said a spokesperson for California Attorney General Rob Bonta, in a written statement. "While we have not yet been formally served with the lawsuit, we look forward to vigorously defending this important law in court."

Opponents of flavored tobacco call it a gateway drug, a product that, whether by design or not, has the effect of luring teenagers into smoking cigarettes. Though some argue that e-cigarettes are a form of harm reduction, a less harmful way to ingest nicotine, others see nicotine addiction, particularly amongst teenagers, as a scourge. According to the Centers for Disease Control, nicotine "can harm adolescent brain development," and "young people who use e-cigarettes may be more likely to smoke cigarettes in the future."

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