Companies Ask 9th Circuit to Halt Calif. Law Banning Flavored Tobacco

In a Friday opening brief before the Ninth Circuit Court of Appeals, tobacco company R.J. Reynolds fought against a lower court decision that upheld a legislative ban on flavored tobacco.

The company sought a preliminary injunction because they believe that the Federal Tobacco Control Act expressly preempts California’s flavor ban. However, they acknowledge that “because binding Ninth Circuit precedent currently forecloses the express preemption claim that is the basis of their motion,” and seek instead to press their claims in the Supreme Court of the United States.

With the ban coming into effect no later than December 21, the appellant requested a ruling by no later than November 29.

R.J Reynolds explains that a preliminary injunction is appropriate because a failure to provide relief would result in business closure, layoffs, loss of access to one of the countries largest markets, loss of brand loyalty, and “tens of millions of dollars to compete for former menthol smokers who do not wish to stop using tobacco products,” according to the opening brief.

The brief also highlights the risk to the public if relief is not provided. They reason that “if consumers cannot obtain flavored tobacco products from reputable establishments because of California’s ban, they may well try to obtain them from illicit sources. Not only could an increased illicit trade present potential risks to consumers, but it would almost certainly lead to an increase in associated crimes.”

They also fear that “the ban may cause consumer confusion regarding the risks of tobacco products, potentially leading to more use of tobacco products that lack characterizing flavors because consumers will naturally interpret that action as implying that flavored products are especially risky.”

Lastly, they argue that a lack of relief would hurt the African American community, whom they say “overwhelmingly” prefer menthol tobacco products.

On the other hand, they believe that the state will not suffer any damages because relief would simply be maintaining the status quo.

Appellants believe that their case is likely to succeed if brought before the Supreme Court because, according to the TCA, the state cannot “prohibit the sale of those products for failing to meet state or local ‘tobacco product standards.’” According to R.J. Reynolds, the TCA’s preemption clause specifically denies states and localities the power to enact “any ‘requirement which is different from, or in addition to,’ federal tobacco product standards.”

The appellant is represented by Jones Day.