California Attorney General Rob Bonta filed an amicus brief last month in the 9th Circuit Court of Appeals in support of an ordinance that would prohibit sales of flavored tobacco products in Los Angeles County.
In his May 14 brief submitted to R.J. Reynolds Tobacco Company et al v. County of Los Angeles et al, Bonta argues that flavor bans fit squarely within the states’ authority.
“The Tobacco Control Act (TCA) preempts only state and local measures that necessarily interfere with the new FDA-administered market gatekeeping functions established by the TCA, or address advertising and product labeling, which have been the province of the federal government for the better part of a century,” he wrote.
But Jennifer C. Braceras, director of Independent Women’s Law Center and former commissioner of the U.S. Commission on Civil Rights, foresees that the ban could be detrimental to local retailers, convenience stores, and other places that sell them.
“I'm not surprised that he filed a brief in favor of the ban because California was trying to issue a statewide ban itself and then decided to hold that when it became clear there was going to be a statewide referendum on the issue,” she said.
While Bonta noted that tobacco companies were purposefully and specifically marketing cigarettes to youth, Braceras said it’s not the job of courts to decide whether or not the sale of flavored tobacco products is a good policy or good public health measure.
“It's for the courts to apply the law as written and the federal Tobacco Control Act says that the federal government determines what ingredients can and cannot go into tobacco products,” she said.
As for law, Bonta claims in his brief that state authority under the TCA includes law, rules, regulation, and other measures relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising, and promotion of, or use of tobacco products by individuals of any age.
“Section 916 of the TCA, 21 U.S.C. § 387p, sets out the relationship between state and federal authority over tobacco products, preserving broad state and local authority that includes the authority to prohibit retail sales of a class of tobacco products such as flavored tobacco products,” he wrote.
Regarding the TCA, Braceras said, “I don't think he's right either on the merits or on the law with respect to the law. I think it's clearly preempted by the Tobacco Control Act.”
The lower federal trial court dismissed R.J. Reynolds' complaint on Aug. 7, 2020, stating that the ordinance banning flavored tobacco is not preempted because the Family Smoking Prevention and Tobacco Control Act (FSPTCA) expressly gives state and local governments the power to prohibit the sale of tobacco products.
“That is so even if those sales bans are stricter than the federal ban, so long as the regulation does not set a tobacco product standard,” United States District Judge Dale S. Fischer ruled. “The Court concludes the Ordinance does not.”
Braceras views the case as having important implications for the law of preemption, generally, irrespective of the facts in R.J. Reynolds Tobacco Company et al v. County of Los Angeles et al, which deals with tobacco.
“The district court said that the ban is not preempted by federal law because the ban only regulates sales, not manufacturing, but that is incorrect because essentially by saying that you can't sell certain flavors, you are telling the tobacco companies what ingredients to use and so, in effect, the ordinance is trying to dictate product standards,” she said. “The reason that only the feds can dictate product standards is because the FDA has expertise in health and medicine that local city councils don't have.”