On March 29, 2021, Judge Janis Sammartino of the U.S. District Court for Southern California dashed the hopes of R.J. Reynolds and other plaintiffs seeking to overturn San Diego’s ban on the sale of flavored tobacco products. In a sometimes tersely-worded decision, Judge Sammartino denied plaintiff’s complaints and granted defendant’s motion to dismiss for failure to state a claim.
Reynold’s main argument was that the law is preempted by federal law, specifically the 2009 Family Smoking Prevention and Tobacco Control Act (“Tobacco Act”). In an age when society seems to have difficulty agreeing on basic facts, this “the sky isn’t blue” argument stands out. That’s because when Congress passed the Tobacco Act, they went out of their way to make it clear that the law does not preempt local authority to regulate tobacco sales. Here’s the Preservation clause:
Except as provided in paragraph (2)(A), nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of a Federal agency (including the Armed Forces), a State or political subdivision of a State, or the government of an Indian tribe to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation, or other measure relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the State, or measures relating to fire safety standards for tobacco products. No provision of this subchapter shall limit or otherwise affect any State, tribal, or local taxation of tobacco products.[i]
[The emphasis is ours since the language is a bit baroque.]
Here it is with the irrelevant bits removed:
“nothing in this subchapter… shall be construed to limit the authority of . . . a State or political subdivision of a State . . . to enact . . . and enforce any . . . measure . . . prohibiting the sale . . . of tobacco products.”
Seems rather clear (or as clear as legislation gets). And Reynold’s doesn’t disagree; they knew they couldn’t win by arguing that sales restrictions are federally preempted. So instead, they said San Diego mislabeled their law. It is not a sales ban, they argued, but a product standard, which is federally preempted, and by banning the sale of some products, San Diego is dictating what factories can and can’t make.
The judge did not buy it.
Let’s remember that this was Reynold’s best argument, and it didn’t even survive a motion to dismiss (which are rarely granted in the absence of a settlement between the parties).
This is great news for public health. A growing number of states and localities are banning all flavored tobacco products, which are clearly aimed at children. It’s also good news for ASH’s Project Sunset and for Beverly Hills and Manhattan Beach, who have banned all tobacco sales.
One of the tobacco industry’s most potent tools is legal chill, achieved by dragging any government that sticks its neck out through years of litigation, which is costly no matter what the outcome. But having a case thrown out in the beginning is not nearly as expensive.
No doubt other cities and states were watching this case, are seeing Big Tobacco’s vulnerability, and saying to themselves, “CHARGE!”
[i] 21 U.S.C. § 387p(a)(1).
