A group of manufacturers and retailers of flavored tobacco and vaping products aren’t going down without a fight when it comes to being able to continue selling their products in California. Earlier this month, a group of ten such companies filed a lawsuit against the state in the U.S. District Court of Southern California in hopes of preventing a ban on flavored tobacco products from going into effect at the start of 2021.
The suit was filed by R.J. Reynolds Tobacco Co., R.J. Reynolds Vapor Co., American Snuff Co. LLC, Santa Fe Natural Tobacco Co. Inc., Philip Morris USA Inc., John Middleton Co., U.S. Smokeless Tobacco Co. LLC, Helix Innovations LLC, Neighborhood Market Association Inc. and Morija LLC, which does business under the name Vapin’ the 619. It names Xavier Becerra, the state’s attorney general, and Summer Stephan, the district attorney for San Diego County, as defendants, both in the official capacities of their jobs.
At its core, the lawsuit says that the ban violates the Federal Smoking Prevention and Tobacco Control Act, which the plaintiffs claim prevent state and local governments from enacting tobacco product standards that are different from those at the federal level.
The complaint calls the state’s ban “an overbroad reaction to legitimate public-health concerns about youth use of tobacco products,” and seeks relief in the form of the court declaring the law invalid and unenforceable, as well as permanently enjoining the state and its agents from enforcing the ban, as well as costs and other relief that the court deems appropriate. While it acknowledges that there are concerns about youth access to tobacco and vaping products, the bill “strikes far broader than necessary” by including a ban on menthol cigarettes, menthol flavored vapor products and other products.
The ban was the result of SB 783, which was passed by the state’s legislature this summer and signed into law by Gov. Gavin Newsom in late August. It is slated to go into effect on Jan. 1, 2021.
The bill prohibits a tobacco retailer from selling, offering for sale, or possessing with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer. There were exemptions for hookah sales and premium cigars, though a clause about minimum pricing rendered the exemption essentially useless as it would drive up the cost for a flavored premium cigar to just under $40. It did not make it illegal to possess or use such products.
The lawsuit is the second tactic being used to prevent the ban from going into effect, as a ballot referendum that would put the ban up to voters is currently being sought. It still needs to garner enough signatures to qualify, as organizers have until Nov. 26 to submit approximately 623,212 valid signatures to county elections offices. If the signatures are verified, the referendum would get on the November 2022 ballot and prevent the law from going into effect until after that election.
It also comes after a similar suit against a flavored tobacco ban in Los Angeles County was dismissed after Judge Dale S. Fischer of the U.S. District Court for the Central District of California said that the county’s ban did not interfere with the federal Family Smoking Prevention and Tobacco Control Act (FSPTCA), specifically because the county’s law does not regulate tobacco product standards, which fall under the purview of the federal law. A similar ban in Edina, Minn. was upheld as well.