“Leaving state and local tobacco flavor bans in place makes a mockery of federal tobacco law and the Supremacy Clause.”
—Cory L. Andrews, WLF General Counsel & Vice President of Litigation
Click here for WLF’s brief.
(Washington, DC)—Washington Legal Foundation (WLF) today urged the U.S. Supreme Court to review, and ultimately to reverse, the U.S. Court of Appeals for the Ninth Circuit’s holding that the Tobacco Control Act (TCA) does not preclude localities like Los Angeles County from banning the sale of certain FDA-authorized tobacco products.
In 2020 Los Angeles County banned the sale of all flavored tobacco products, including menthol cigarettes. That flavor ban clashes with the TCA’s preemption clause, which prohibits state and local governments from banning the sale of tobacco products for failure to conform to state or local standards that differ from the TCA’s. Facing an explosion of disparate state and local tobacco-standard regimes, a group of tobacco manufacturers sued to block the ban’s enforcement.
Deploying a cramped reading of the TCA’s preemption clause, a divided Ninth Circuit panel rejected the plaintiffs’ preemption claim. The court found that the County’s ban does not regulate “product standards,” and thus is not preempted, because it regulates only sales—not the manufacturing or production process.
In its amicus brief urging review, WLF argues that the County cannot escape federal preemption simply by recasting its flavor ban as a regulation of tobacco “sales” rather than tobacco “manufacturing.” Under the TCA, a standard is a standard for preemption purposes no matter how it is enforced or described. Contrary to the view of the panel majority, Congress’s ability to safeguard the federal interests at stake in the TCA does not turn on such wordplay.