A coalition of tobacco companies is suing the state of California and the San Diego District Attorney alleging that the state’s ban on flavored tobacco products violates the Tobacco Control Act of 2009 (TCA) and the U.S. Constitution.
“Because California’s law attempts to regulate manufacturers that are not within the state’s borders, the law violates the dormant Commerce Clause and because California’s ban does so, it is unconstitutional and must be set aside,” wrote attorney Steve Geise who filed the lawsuit in the Southern District of California a day after the midterm elections.
The TCA is a federal law that permits the Food and Drug Administration (FDA) to regulate the tobacco industry. It also contains a clause that prohibits states from enacting and enforcing laws that are different from or in addition to the TCA or FDA’s requirements.
At the core of the lawsuit is SB793, which voters approved in a ballot measure on Nov. 8 to enact a statewide ban on the sale of flavored tobacco products. The statewide ballot initiative became effective last week on Dec. 21.
“It bans all characterizing flavors (including menthol) and it applies to tobacco products other than cigarettes,” Geise stated. “It, therefore, falls squarely under the TCA’s preemption clause.”
Defendants named in the lawsuit include San Diego District Attorney Summer Stephan and California Attorney General Rob Bonta.
As previously reported in the Southern California Record, the San Diego City Council is among the 139 California cities that implemented a ban on the sale of menthol cigarettes and other flavored tobacco products, including e-cigarettes.
“If for some reason this challenge to the law is successful, if RJ Reynolds and the other big tobacco companies are successful in overturning the voter-approved ballot initiative, then it still would not affect us here in San Diego because we've passed our own city law,” said San Diego City Councilwoman Marni von Wilpert. “So, we're covered either way.”
Geise did not respond to requests for comment. The Plaintiffs include R.J. Reynolds Tobacco Company, R.J. Reynolds Vapor Company, American Snuff Company, Santa Fe Natural Tobacco Company, Modoral Brands, Neighborhood Market Association, and Morija d/b/a Vapin’ the 619.
“The only difference between the state law and our local law is about hookah and hashish,” von Wilpert told the Southern California Record.
“Our local law did not ban the sale of it except for consuming it onsite at hookah lounges and the state law did. We weren't concerned about hookah because that's not what kids are hiding in their backpacks and smoking in school. Hookahs are 3-foot tall smoking devices and they're used in cultural practices.”