Federal Court Denies Preliminary Injunction Request in California UTL Case
Judge Monica Ramírez Almadani denies the cigar industry's request for a preliminary injunction against the UTL.
The cigar industry has once again lost a legal battle as part of its lawsuit(s) against California’s Unflavored Tobacco List (UTL) law, an actual list that will show the products the state has determined are not flavored and legal to sell in California.
Yesterday, Judge Monica Ramírez Almadani of the U.S. District Court for the Central District of California denied the plaintiffs’ request for a preliminary injunction in Rocky Patel Premium Cigars Inc. et al v. Bonta.
The case was filed in October, ahead of the state’s UTL deadlines, by seven family-owned cigar companies that are board members of the Cigar Rights of America (CRA), the CRA itself and the Premium Cigar Association. They are challenging the UTL’s rules as they apply to “premium cigars,” which more or less started less than a week after the federal lawsuit was filed. Ramírez Almadani quickly tossed one part of the lawsuit, finding that challenges under the California Administrative Procedures Act needed to be made in state court, not federal court. A second lawsuit was filed in state court to deal with those claims.
Tuesday’s decision dealt with a request for a preliminary injunction that would have prevented the state from applying the UTL rules to “premium cigars” as this lawsuit plays out. Before the end of the year, the state must publish the initial version of the UTL, an actual list that will tell California’s retailers which products are legal to sell. Come Jan. 1, 2026, any product not on the list will not be legal to sell.
Companies had until Oct. 9 to ensure that they made the initial list. Going forward, companies can apply for more products to make the list and the attorney general’s office—which the legislature put in charge of the UTL—says it will process those applications within 90 days. While not an extensive survey, multiple companies have told halfwheel they have received approval for all of the products they submitted.
Last week, Ramírez Almadani heard oral arguments for the request for a preliminary injunction, which requires her to evaluate how likely the plaintiffs are to succeed on the merits of the underlying claims. She evaluated three different claims—express preemption, implied preemption, and free speech—and found that the plaintiffs are unlikely to succeed on any of them, which led her to deny the request for a preliminary injunction.
Both preemption issues deal with how the UTL law interacts with the Tobacco Control Act, a federal law in which Congress directed the U.S. Food & Drug Administration (FDA) to regulate tobacco products. Much of the discussion surrounding the express preemption relies on R.J. Reynolds Tobacco Co. v. County of Los Angeles, a 2022 decision by the Ninth Circuit Court of Appeals.
In its most basic form, the plaintiffs are arguing that the UTL is a form of premarket review, i.e., regulating the manufacturing, whereas the state argues that it is a restriction on the sale. Ramírez Almadani finds the state’s arguments persuasive and says that the UTL is a regulation on finished products and not their production.
The implied preemption arguments deal with language in the Tobacco Control Act that prevents states from enacting certain types of tobacco regulation on their own. This language has become a point of contention recently because of vape registry laws, state laws pushed by Big Tobacco that say if a product has not been approved by the FDA, it cannot be sold in a specific state. There are four different vape registry cases mentioned in this section.
Unfortunately for the cigar industry, Ramírez Almadani does not buy the plaintiffs’ arguments here either. According to the court, they argued that “a significant portion of the UTL scheme depends on a product’s status with regard to federal premarket review, and the state does not have authority to impose penalties based on violations of federal law.” This is in reference to California requiring companies to disclose any decision that the FDA has made about a product that applies for UTL inclusion. In doing so, the plaintiffs argue that California has created a parallel regulatory system, albeit one that is tied to federal enforcement.
The aforementioned four vaping-related cases have not had consistent rulings, though the courts upheld the state law in three of the cases. Here, Ramírez Almadani says the plaintiffs failed to identify how the UTL law would result in California enforcing federal law.
Finally, the plaintiffs argue that the state has restricted their free speech because cigar companies will no longer use common taste descriptors, like “this cigar has notes of wood, caramel and coffee” because those descriptions could be confused with affirmatively stating that the cigar has characterizing flavors of wood, caramel and coffee, which would result in a cigar being excluded from the UTL.
While the Ramírez Almadani rejected some of the state’s defense against the free speech challenge, she did not find that the law actually would ban a company from making those statements, writing bluntly, “Plaintiffs may continue to describe the flavor of their premium cigars using flavorful terms, so long as they identify those ‘flavorful’ cigars as in fact being unflavored—and therefore not subject to the State’s ban on flavored tobacco products.”
Yesterday’s ruling does not mean the end of the case, though now that the deadlines are starting to pass, it will be especially interesting to see how committed the plaintiffs will be to funding the case further.
However, the same day as the court’s ruling, they immediately filed a notice stating they will appeal the decision to the Ninth Circuit.