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Lawsuit Filed Against Los Angeles County Flavor Ban Ordinance

The following is an update from the National Association of Tobacco Outlets (NATO) sourced through their June 12th online bulletin. Reposted with permission.

Special Report

On June 1, 2020, R.J. Reynolds Tobacco Company, American Snuff Company, LLC, and Santa Fe Natural Tobacco Company, Inc. filed a lawsuit in the Federal District Court for the Central District of California against the County of Los Angeles and the County of Los Angeles Board of Supervisors seeking declaratory and injunctive relief against the Los Angeles County Tobacco Ordinance which bans the sale of menthol cigarettes and every flavored tobacco product.

Background:  On September 24, 2019, the County of Los Angeles Board of Supervisors approved an ordinance that prohibits the sale of menthol cigarettes and all flavored tobacco products.  While the Board of Supervisors was primarily concerned about responding to the youth vaping issue, the ordinance enacted much broader sales prohibitions making it illegal to sell any flavored tobacco product or component, part or accessory of a tobacco product that imparts a characterizing flavor other than the taste or aroma of tobacco.

Legal Claims Against the New FDA Cigarette Health Warnings:  The lawsuit filed against the County of Los Angeles Board of Supervisors has two main claims.

  1. Express Pre-Emption Claim

The Family Smoking Prevention and Tobacco Control Act (the federal law that authorizes the FDA to regulate tobacco products) expressly denies state and local governments the ability to adopt a tobacco product standard that is “different from, or in addition to” federal tobacco product standards.  A product standard is a power granted to the FDA by Congress to reduce or eliminate an additive or constituent in a tobacco product or tobacco product smoke.  Despite this pre-emption provision in the federal law, the Los Angeles County Board of Supervisors enacted a product standard because the ordinance regulates flavor ingredients and constituents in cigarettes and tobacco products by banning the sale of flavored tobacco products.  Moreover, Congress enacted a special rule product standard as a part of the Family Smoking Prevention and Tobacco Control Act that banned flavored cigarettes other than tobacco and menthol-flavored cigarettes.  Since the Los Angeles County ordinance bans menthol cigarettes, this ban is “different from, and in addition to” the federal law allowing menthol cigarettes to be sold and, therefore, should be pre-empted.

  1. Implied Pre-Emption Claim

The Family Smoking Prevention and Tobacco Control Act also impliedly pre-empts the Los Angeles County ordinance because the regulations stand as an “obstacle” to the underlying purposes of this federal law.  The U.S. Supreme Court has held that this kind of “obstacle” pre-emption occurs when a state or local law “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.”  One of the underlying purposes of the Family Smoking Prevention and Tobacco Control Act is to authorize the FDA to set national product standards to control the manufacturing of tobacco products and the ingredients in the tobacco products.  Another purpose of the federal law is to continue to permit tobacco products to be sold to legal age adults while making them inaccessible to underage persons.  The Los Angeles County ordinance ban of flavored products is in direct conflict with these two purposes. Since the ordinance is in conflict with the federal law purposes, the Los Angeles County ordinance should be pre-empted under the “obstacle pre-emption” principle.

Request for Relief:  Under the lawsuit, the Federal District Court is being asked to issue a ruling that includes the following relief:

  1. Declare that the Family Smoking Prevention and Tobacco Control Act pre-empts the Los Angeles County Tobacco Ordinance ban on the sale of menthol cigarettes and flavored smokeless tobacco products, making the ordinance invalid and unenforceable.
  2. Issue a preliminary and permanent injunction preventing the Los Angeles County Board of Supervisors from enforcing and implementing the ordinance’s ban on the sale of menthol cigarettes and flavored smokeless tobacco products.

A copy of the filed complaint in this lawsuit can be found below.

State Legislative Bill Introductions

State tobacco-related legislative bills that have been introduced in the past week are listed below alphabetically by state:

Colorado:  House Bill 1427 would place a question on the November, 2020 general election ballot for voters to vote on that would increase the tax on cigarettes to $1.94 per pack in 2021, to $2.24 per pack in 2024, and to $2.64 per pack in 2027; establish a minimum retail price for a pack of cigarettes at $7.00 per pack (increases to $7.50 on July 1, 2024); and increase the tax on other tobacco products and nicotine products (including vapor products) to 50% of the manufacturer’s list price in 2021, 56% in 2024, and 62% in 2027.

Iowa: House File 2633 includes alternative nicotine products and vapor products in the definition of “tobacco product”, effectively imposing the OTP tax rate of 50% of the wholesale price on vapor products.

State Legislative Bill Actions

State tobacco-related legislative bills that have been acted on by a state legislative committee or state legislature are listed below alphabetically by state:

Colorado: House Bill 1001, which increases the minimum sales age for tobacco products and vapor products from 18 to 21; requires all vapor and tobacco product retailers to obtain a license; and prohibits new tobacco product or vapor product retailers from being located within 500 feet of a school, passed the Senate and moved to the House for concurrence on June 5, 2020.

Mississippi:  House Bill 1407, which would have taxed alternative nicotine products and e-products at the same rate as other products (15% of sales price), died in committee on June 9, 2020.  Senate Bill 2799, which would have taxed alternative nicotine products at $0.05 per milliliter, died on the Senate calendar on June 4, 2020.

Tennessee:  Senate Bill 2202 (same as House Bill 2269), which prohibits the sale of tobacco products, vaping products or smoking paraphernalia to persons under age twenty-one, was substituted for HB2269 on June 2, 2020.  The bill passed the House on June 8th; and the Senate concurred on June 10th.