Last week on Thursday, plaintiff R.J. Reynolds and other tobacco manufacturers filed an opposition to the City of Edina, Minnesota’s motion to dismiss their complaint that alleged that the city’s ban on flavored tobacco products was unlawful. The filing also contained the plaintiffs’ reply brief in support of their motion for a preliminary injunction to lift the ban.
The central question in the case, the plaintiffs allege, is “[w]ho decides what product standards apply to tobacco products?” They argued that the city overstepped its authority by banning flavored tobacco, which it did by a city ordinance on June 16. The plaintiffs advanced several arguments to support their contention, chiefly that the ban is preempted by federal law and therefore unconstitutional under the U.S. Constitution’s Supremacy Clause.
First, they argued that tobacco product regulation is the strict province of the federal government, and is expressly preempted by the passage, intent, and substance of the Tobacco Control Act (TCA). Specifically, the tobacco companies contended that the TCA “expressly preempted all state and local attempts to regulate the ‘additives’ or ‘properties’ of tobacco products in ways that are different from, or in addition to, federal tobacco product standards.”
Edina’s argument that the TCA’s saving clause permits sales restrictions, like the one it has propounded, is flawed, they contended. The plaintiffs countered that the ordinance does not escape preemption because unlike other restrictions on tobacco product sales that have been upheld, for example, ones limiting sales to certain types of stores, Edina’s is a full-blown prohibition.
The plaintiffs also averred that the TCA impliedly preempts the ordinance because it “interferes with Congress’s goal of having national manufacturing standards.” Furthermore, it disrupts the regulatory process, and also “undermines Congress’s and FDA’s judgment that certain flavored tobacco products should remain on the market.”
They bat down Edina’s “narrow” argument that “Congress did not intend to preempt local bans on menthol-flavored cigarettes,” by replying that the legislature “expressly declined to create a product standard for menthol cigarettes and directed FDA to study the issue.” In so doing, they argued that Congress did not “intend for localities to enact their own, different standards for menthol cigarettes.”
As to the preliminary injunction, the plaintiffs argued that they are likely to prevail on the merits of their claim, and that the remaining factors also favor granting injunctive relief. The irreparable harm they will suffer is lost revenue, so far approximated to be in the five to six-figure range for each tobacco manufacturer plaintiff.
The equities and public interest also support enjoinment, the plaintiffs claimed, arguing that “[t]he City resorts to platitudes minimizing the right of adults to buy otherwise lawful products and entirely ignoring that [the] FDA—the entity best positioned to evaluate tobacco products and their effects on public health—has allowed these products to stay on the market.” Finally, the tobacco companies ask the court to consolidate the preliminary injunction hearing with the trial on the merits because the case concerns questions of law only.
The plaintiffs are represented by Jones Day and the defendants by Campbell Knutson.