Supreme Court Refuses to Block California Flavored Tobacco/Vaping Ban

The U.S. Supreme Court has refused an emergency petition to block California’s ban on most flavored tobacco and vaping products from taking effect later this month. Now that the Supreme Court has refused to take up the emergency petition, California’s ban will likely go into effect in less than two weeks.

An order from Judge Elena Kagan denied the plaintiffs’ emergency application in R.J. Reynolds Tobacco Co. et al. v Robert Bonta et al. The plaintiffs had filed a federal lawsuit hoping to stop the law before it takes effect later this month, likely through an emergency application to the U.S. Supreme Court. Notably, there was no public dissent from any other justices.

The plaintiffs argued that California’s new law is illegal because the federal government’s Tobacco Control Act preempts states and local governments from making tobacco product standards different from those established in the Tobacco Control Act. Kagan’s short order does not address this argument, it simply means that Kagan did not believe the plaintiffs met the burden of the three factors considered for an emergency application to be granted.

Now that the emergency application has failed, it likely clears the way for the California law to take effect by Dec. 21, nearly 28 months after Gov. Gavin Newsom signed SB 793 into law.

The lengthy delay is due to a two-prong strategy employed by tobacco companies and retailers following the passage of SB 793 in August 2020. First, there was a separate lawsuit filed against the law, one that was ultimately thrown out because of the second action, a ballot initiative. Tobacco companies took advantage of California’s direct democracy initiatives and got enough signatures to place SB 793 onto the November 2022 ballot as a ballot measure.

California voters were given a chance to decide whether or not they wanted SB 793 to become law and they voted in favor of the ban on most flavored tobacco and vaping products.

When SB 793 will ban the sale of flavored vaping products and most flavored tobacco products, though there is an 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. The way the law is written, California consumers should still be able to purchase flavored tobacco products from out-of-state retailers.

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

It is expected that many companies will continue to sell tobacco products that may not on face meet the definition. Those sales will continue as further legal challenges take place, including likely ones challenging the process by which California defines flavored tobacco products.

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.

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.