On Tuesday, voters in California voted in favor of a law that would ban the sale of most flavored tobacco and vaping products in the state; on Wednesday, one of the world’s largest tobacco companies filed another lawsuit against the new law.

R.J. Reynolds Tobacco Co.—and various RJR subsidiaries—along with the Neighborhood Market Association and a local California vape shop have filed a lawsuit against Robert Bonta, the attorney general of California, and Summer Stephan, the district attorney for the County of San Diego. If this sounds like déjà vu that’s because Reynolds, the Neighborhood Market Association, the same vape shop and other tobacco companies filed a similar lawsuit in October 2020, which was dismissed in August 2021 due to a lack of standing.

Following Tuesday’s vote, the situation has changed dramatically. Barring any legal setbacks, California’s flavored tobacco ban will go into effect before the end of 2022.

In 2020, California’s legislature passed SB 793, which would ban the sale of most flavored tobacco and vaping products. Gov. Gavin Newsom signed SB 793 into law in August 2020. Shortly after that, Reynolds filed the aforementioned October 2020 lawsuit and an effort began to get a repeal of SB 793 added as a ballot measure for the 2022 general elections.

Eventually, enough signatures were gathered and verified, which put the measure on the 2022 ballot and also suspended enforcement of the law until after the election. If a majority of voters voted against the bill, it would not become law. If a majority of voters supported the bill, it would become law.

On Tuesday, a majority of voters voted in favor of the bill, but SB 793 is still not yet in effect. It will need to wait until after Shirley Weber, California’s secretary of state, certifies the results of the election, which must happen by Dec. 16, 2022. SB 793 will go into effect five days after the results are certified.

That of course assumes there are no lawsuits that could spurn injunctions of the law. And now there is one that is at least one that seeks injunctive relief.

RJR filed a lawsuit in the U.S. District Court for the Southern District of California. The lawsuit argues that SB793 is preempted by the Family Smoking Prevention and Tobacco Control Act of 2009, the law that gave the U.S. Food & Drug Administration the authority to regulate cigars. RJR argues that the Tobacco Control Act preempts SB 793, more specifically that California cannot establish its own laws that are different from federal tobacco product standards because the Tobacco Control Act expressly defined what products are legal and which ones are illegal.

Interestingly, RJR is also involved in another lawsuit regarding a flavor ban in California, though that one is regarding Los Angeles County’s ban. In that suit, the Ninth Circuit held that the Tobacco Control Act’s preemption of tobacco product standards is limited to the manufacturing of the products and not the sale of the products. RJR says it believes that the narrow preemption standard is incorrect and has petitioned the Supreme Court to take up the matter.

Even so, RJR argues that because the plaintiffs manufacture products, the narrow definition would apply as SB 793 defines a flavored tobacco product as one where a flavoring ingredient is added during the manufacturing process.

In addition, RJR argues SB 793 violates the Commerce Clause as it would regulate manufacturers that are not based in California.

As part of its lawsuit, RJR is asking for a preliminary injunction that would prohibit SB 793 from going into effect as well as permanent relief.

RJR’s October 2020 lawsuit was dismissed because of a lack of standing. In that case, the judge ruled that because SB 793’s fate was still unclear—it needed to be approved by the voters—RJR and the other plaintiffs lacked standing because it was unclear whether the law would go into effect. The judge concluded that if voters rejected SB 793, there would be no harm to the plaintiffs and therefore dismissed the case.

R.J. Reynolds is owned by British American Tobacco, plc.

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SB 793 has a peculiar exemption for some flavored cigars.

If a flavored cigar is handmade, uses a whole leaf tobacco wrapper and has a wholesale price of at least $12, it can be legally sold under the new law. However, it’s unclear what the “wholesale price” is as California’s other tobacco tax laws use the term “wholesale cost,” something that in and of itself has been scrutinized by tobacco companies for other purposes.

The law only enacts penalties for those involved in the sale or distribution of flavored products and not any penalties for a consumer caught possessing a flavored tobacco product. Because of this, it’s also unclear how the law might affect non-California retailers that sell products to California consumers and ship the products. Furthermore, SB 793 would make it illegal for a retailer to possess any of the illegal flavored products, which complicates the matter even more.

There are also other exemptions for flavored pipe and shisha tobaccos.

When SB 793 goes into effect, California will join Massachusetts as the second state to enact a near-total statewide flavor ban. Massachusetts’ ban, which went into effect in June 2020, includes an exemption that allows “smoking bars” to continue to sell flavored tobacco and vaping products for on-site consumption.

In April, the U.S. Food & Drug Administration said it intended to ban all flavored cigars and menthol cigarettes, processes that are expected to take years and eventually be met with expensive and prolonged litigation before they would go into effect.

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Charlie Minato

I am an editor and co-founder of halfwheel.com/Rueda Media, LLC. I previously co-founded and published TheCigarFeed, one of the two predecessors of halfwheel. I have written about the cigar industry for more than a decade, covering everything from product launches to regulation to M&A. In addition, I handle a lot of the behind-the-scenes stuff here at halfwheel. I enjoy playing tennis, watching boxing, falling asleep to the Le Mans 24, wearing sweatshirts year-round and eating gyros. echte liebe.