Law Street Media

Vape Association Sues to Block LA Vaping Ban

A man exhales steam from his electronic cigarette

A bearded man in the clouds of steam from electronic cigarette closeup. vaping man

On May 4, the California Smoke and Vape Association sued the County of Los Angeles, alleging that the defendant’s county ordinance banning flavored cigarettes violated two parts of the Constitution: (1) the 14th Amendment and (2) the Supremacy Clause. The plaintiff sought a declaratory judgment proclaiming the ordinance unlawful under both constitutional provisions and concurrently an injunction prohibiting further implementation of said ordinance.

The plaintiff proffered that the Family Smoking Prevention and Tobacco Control Act, a federal law signed in 2009, preempts the ordinance under the Supremacy Clause of the Constitution, which declares a state or locality action invalid if superseded by federal law. They alleged the Act preempts the defendant’s ordinance because the Act operates as the sole “authority to regulate the retail sales, ingredient formulations, and labeling of tobacco products” including all flavored cigarettes and vaping devices.

The Act states that “no state or political subdivision of a state may establish or continue in effect with respect to a tobacco product, any requirement which is different from, or in addition to, any requirement under the provisions of this chapter relating to tobacco product standards.” The Act goes on to state that under the tobacco product standards, “a cigarette…shall not contain…an artificial or natural flavor (other than tobacco or menthol) that is a characterizing flavor of the tobacco product or tobacco smoke.” The defendant’s ordinance also bans “characterizing flavors” but does not make an exception for menthol or tobacco. The plaintiff alleged that since the Act preempts the ordinance, the ordinance must be unconstitutionally impermissible via the Supremacy Clause since it violates the terms of the Act by banning “characterizing flavors” not banned by the Act.

Next, the plaintiff asserted that the ordinance violates the 14th Amendment because it is unconstitutionally vague. An ordinance must be voided for vagueness if the law “fails to provide a person of ordinary intelligence fair notice of what is prohibited” prior to depriving a person of some right (including the right to sell a product). Under this standard, the plaintiff averred, the defendant’s ordinance stands as impermissibly vague as the ordinance fails to define what is a “characterizing flavor.” The plaintiff concluded that this could lead the manufacturer to label any ingredient at any time a “characterizing flavor”  thus failing to give the retailers “fair notice of what is prohibited” under the law in violation of the 14th Amendment. 

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