“Leaving a host of state and local tobacco flavor bans in place makes a mockery of federal 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 States like California from banning the sale of certain FDA-authorized tobacco products.
In 2020, California enacted a law banning the sale of all flavored tobacco products, including menthol cigarettes, within the State. That flavor ban clashes with the TCA’s preemption clause, which prohibits States and localities 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 and retailers sued to block the ban’s enforcement.
Bound by an earlier panel’s flawed reading of the TCA’s preemption clause, the Ninth Circuit rejected the plaintiffs’ preemption claim. In RJ Reynolds v. Los Angeles County, a divided Ninth Circuit panel had held that a similar ban was not preempted because it regulated only sales—not the manufacturing or production process. That binding precedent foreclosed the plaintiffs’ suit here.
In its amicus brief urging review, WLF argues that California 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 Ninth Circuit’s view, Congress’s ability to safeguard the federal interests at stake in the TCA does not turn on such wordplay.