Supreme Court Declines to Take Up Challenge to Los Angeles County Flavored Tobacco Ban

The United State Supreme Court has declined to hear a petition that seeks to overturn Los Angeles County’s ban on flavored tobacco sales.

Earlier today, the court denied a petition from the plaintiffs in R.J. Reynolds Tobacco Company, et al. v. County of Los Angeles, et al. The case was filed in 2020 by R.J. Reynolds and other tobacco companies following Los Angeles County’s ban on flavored tobacco sales, a law that was passed in October 2019. The plaintiffs argued that Los Angeles County, as well as other state and local governments, are preempted by federal law from regulating the sale of flavored tobacco because, as it argued, Congress gave that authority to the U.S. Food & Drug Administration (FDA) with the passage of the Family Smoking Prevention and Tobacco Control Act in 2009. Reynolds also made similar arguments in cases challenging California’s statewide ban on most flavored tobacco products, which went into effect late last year.

Unfortunately for the plaintiffs, federal courts have not been kind to this argument. A District Court dismissed this lawsuit and a similar one in August 2020. Reynolds appealed in September of that year, and the case was closed and then reopened in early 2021. In March 2022, the 9th Circuit Court of Appeals upheld the District Court’s dismissal.

Last July, Reynolds informed the Supreme Court that it would file a petition for a writ of certiorari, i.e. a Supreme Court review of the lower courts’ rulings. That was filed in October and various briefs and replies have been filed up until earlier this month. Today, the Supreme Court announced that it was denying the petition, meaning the case will not be heard in front of the Supreme Court. It also means that this particular challenge to the law has now been exhausted. For reference, the Supreme Court agrees to hear roughly 1 percent of the petitions that are filed.

This is not the first time the Supreme Court has denied Reynolds’ petition in regard to a ban on flavored tobacco sales in California. Late last year, an emergency petition that would have blocked the statewide ban was denied by Justice Elena Kagan on behalf of the court. That litigation, which is over similar merits, in theory could still be taken up by the court.

After a number of legal challenges, California’s statewide ban on most flavored tobacco sales was enacted in late December 2022. It allows for some exemptions—flavored hookah tobacco sales and expensive flavored cigars are still allowed—but affects the major targets such as menthol cigarettes and mass-market cigars. Both cigarette and cigar companies have reacted to the new rules in varying ways. For example, Drew Estate told California retailers that it would no longer sell stores in the state three lines, though ACID was notably not one of the three.

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.