State and local governments can ban flavored tobacco products, court rules

State and local governments can ban the sales of flavored tobacco, a federal appeals court has ruled, rejecting tobacco companies’ arguments in a case from Los Angeles County.

flavor-banIn a 2-1 ruling Friday, the Ninth U.S. Circuit Court of Appeals said a 2009 federal law regulating tobacco products does not prevent states, counties and cities from going further and prohibiting the sale of flavored cigarettes and other tobacco products. The ruling upheld Los Angeles County’s 2019 ban on all such products and would also apply to similar measures approved by San Francisco voters in 2018 and by the Berkeley City Council in 2019. Oakland outlawed flavored tobacco products in 2018 but exempted sales at adults-only tobacco shops.

Among 300 communities nationwide that outlaw most or all flavored tobacco sales, about one-third are in California, said Joelle Lester of the nonprofit Public Health Law Center, which filed arguments supporting the local regulation.

California lawmakers approved a measure in 2020 to prohibit marketing of most flavored tobacco products, exempting sales of pipe tobacco and premium cigars, and exempting sales of hookah tobacco to those 21 and older. But industry groups collected enough signatures to qualify a referendum for the ballot and put the state law on hold until voters consider it this November.

The 2009 federal law followed more than a century of tobacco regulation by state governments. The law authorized regulation by the U.S. Food and Drug Administration, which has prohibited some flavored tobacco products and has announced plans to outlaw menthol-flavored cigarettes in forthcoming regulations.

Under the 2009 law, only the federal government, and not state or local governments, can set “tobacco product standards.” But the appeals court said the ban on flavored products was authorized by another provision of the law allowing states to impose “requirements relating to the sale ... of tobacco products.”

Quoting another appeals court’s ruling in 2013 upholding a ban on most flavored tobacco sales in New York City, the Ninth Circuit said Congress had decided to preserve for states a “robust role in regulating, and even banning, sales of tobacco products.”

The ruling upholding a federal judge’s decision in the county’s favor was written by Judge Lawrence VanDyke and joined by Karen Schreier, a federal judge from South Dakota temporarily assigned to the appeals court. In dissent, Judge Ryan Nelson said the 2009 federal law prohibits state and local bans on any category of tobacco products.

In banning sales of certain flavored tobacco products, Nelson said, the federal law declared that its ban was a “tobacco product standard,” the same language it used to pre-empt local regulations.

The county’s position was supported by Attorney General Rob Bonta’s office and a number of health and medical organizations. In response to the ruling, Bonta said on Twitter, “Every year, almost 500K die due to tobacco related disease. We must act to protect the health of our people.”

Lawyers for the tobacco companies were not immediately available for comment.

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