U.S. Supreme Court Turns Down LA County Flavored Tobacco Ban Challenge

The U.S. Supreme Court announced Monday they would not be hearing a final appeal to R.J. Reynolds Tobacco Company v. County of Los Angeles, which had challenged a 2020 LA County decision to ban the sale of all flavored tobacco products within the county, effectively allowing them to regulate tobacco products at the County level.

Since the late 2010’s, both the state of California and several counties within the state, including LA County, have sought bans on the sales of flavored tobacco products, which includes everything from flavor-infused tobacco to menthol cigarettes to flavored vape juice. At the state level, a tobacco ban has been in and out of courts and voter referendums for three years. In 2020, Governor Gavin Newsom signed into law SB 793, which was set to institute a total state ban in December 2022.

However, tobacco companies quickly formed a coalition and set up a ballot referendum, collecting enough signatures in time by December to delay the ban. In early 2021, enough signatures had been collected to put the decision up to California voters, with the referendum going to to the November 2022 ballot. Tobacco companies fought hard to fail the referendum, now known as Proposition 31, as many felt the ban went too far, and that it would hurt many businesses as a result, with supports pushing for Prop 31 to pass due to a rise in youth tobacco consumption partially attributed to flavored tobacco being on the market.

In November, Californians overwhelmingly voted  for the ban to stay in place, 63% to 37%, or, 6.8 million for the ban and 3.9 million against. With the ban now set to begin later this month, R.J. Reynolds, as well as other tobacco companies, quickly filed an emergency application for a writ injunction with the U.S. Supreme Court, asking the court to stop the ban as a last Hail Mary attempt.

In their application, the tobacco companies said that the ban will cause “irreparable harm, leading to substantial financial losses and a hit to customer goodwill and its reputation.” Other companies argued that that many companies in California would have to close down as a result, including several vaping companies and chains, leading to a large lay-off of workers statewide. They also noted that the FDA should be the final word on a ban, not the state.

On December 13th, just over a week before the ban was to officially be put into place, the Supreme Court turned down hearing the state case, effectively allowing California to go through with the ban. But, despite the state effectively following through on the ban going into this year, tobacco companies had one last hope going through the courts that could have still brought it all down – the R.J. Reynolds-LA County suit.

While SB 793 was being fought over in the California legislature in 2020, LA County had their own separate flavored tobacco ban law coming into effect. In May 2020, LA County announced a ban on all flavored tobacco products, a move which prompted an immediate lawsuit. Tobacco companies argued that only the federal government could place restrictions on tobacco sales, not state, county, or local authorities. But after two years in federal courts, an Appellate ruling in March 2022 ruled in favor of the County 2-1.

“Properly understood, the FDA has exclusive authority to regulate the production and marketing of tobacco products, not retail sales,” said Circuit Judge Lawrence Van Dyke last year. “A state cannot require tobacco companies to make their products according to any particular standard—only the federal government can do that. But a state can place restrictions on the retail sale of a tobacco product, including banning its sale altogether.”

Flavored tobacco sales banned statewide

While the companies took the case to the Supreme Court, many other rulings and actions quickly built up against them. In June, the LA City Council voted to ban the sale of flavored tobacco products within the city, with then-Mayor Eric Garcetti writing it into law less than two weeks later. With the city ban now set to go into effect in January 2023, as well as the state ban being approved by voters in November and upheld by the courts in December, the county’s case awaiting a possible Supreme Court date was the only real hurdle left.

On Monday, the Supreme Court declined to hear the case without comment, allowing the Appellate Court’s decision to stand. With flavored tobacco now illegal on multiple governmental levels, customers will now have to continue to buy those products out of state. While there are some exemptions, such as flavored tobacco used in hookah bars, flavored loose-leaf pipe tobacco, and flavored premium cigars costing over $12 at the state level, tobacco companies have now virtually lost the entire California flavored tobacco market in only a handful of years with the decision on Monday.

“The only break tobacco companies got on flavored tobacco was getting the initial state ban moved to being a state referendum,” noted tobacco policy researcher Sarah Cobb to the Globe on Monday. “But the state government has passed laws against this. The people overwhelming voted against it. Counties passed laws against. Cities passed laws against it. Besides Massachusetts, which banned flavored tobacco only months earlier and menthol cigarettes about a year earlier, California has largely been leading the way on this and showing how to beat these companies in court and make these laws stick. Today only added to that. There’s a few other things they can try, but generally, they’re pretty much out of options.”

Other flavored tobacco bans across the U.S. are expected to emerge in the coming years.