Cases challenging Los Angeles County’s flavored tobacco ban could define the limit of State and local authority in addressing flavored tobacco products and could have implications for similar laws in other States and localities.

Los Angeles County’s flavored tobacco ban is being challenged in two cases: R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 2:20-cv-04880 (C.D. Cal.), and CA Smoke & Vape Association, Inc., et al. v. Los Angeles County, et al., No. 2:20-cv-4065 (C.D. Cal.). Both cases are before the Honorable Dale S. Fischer of the U.S. District Court for the Central District of California.

The plaintiffs in CA Smoke & Vape filed their complaint on May 4, 2020. The Reynolds plaintiffs filed their complaint on June 1, 2020. The plaintiffs in both cases have moved to preliminarily enjoin the ban. The motion in the Reynolds case is scheduled for hearing on July 13. Judge Fischer has taken the motion in the CA Smoke & Vape case under submission and will schedule a hearing if she decides oral argument would be helpful.

The Flavored Tobacco Ban

The cases challenge the County’s flavored tobacco ban. The ban was part of an ordinance enacted last fall. Enforcement of the ban was set to begin on May 1, 2020.

Under the ban, it is it unlawful “for a tobacco retailer/licensee or its agent(s) or employee(s) to sell or offer for sale, or to possess with the intent to sell or offer for sale, any flavored tobacco product or any component, part, or accessory intended to impart, or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices.” L.A. Cnty. Code § 11.35.070(E).

The ban covers any tobacco product that “imparts a characterizing flavor,” id. § 11.35.020(J), and a “characterizing flavor” is defined as “a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form, mixed with or otherwise added to any tobacco product or nicotine delivery device, including electronic smoking devices,” id. § 11.35.020(C). Various types of “tobacco products” are covered. Id. § 11.35.020(U).

The Legal Challenges

The plaintiffs in both the Reynolds and CA Smoke & Vape cases claim that the County’s flavored tobacco ban is expressly preempted under the Constitution’s Supremacy Clause and the Family Smoking Prevention & Tobacco Control Act, 21 U.S.C. § 387p. Invoking the doctrine of implied preemption under the Supremacy Clause, the plaintiffs in Reynolds also contend that the ban is an impermissible obstacle to the execution and fulfillment of Congress’ objectives and purposes in enacting the Family Smoking Prevention & Tobacco Control Act.

The CA Smoke & Vape plaintiffs also contend that the flavored tobacco ban is impermissibly vague and, therefore, violates the Due Process Clause of the Fourteenth Amendment to the Constitution.

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In recent years, flavored tobacco products have come under increased scrutiny from executive and legislative bodies across States and localities. The Los Angeles County cases could be of interest in determining how far States and localities may go in restricting or prohibiting flavored tobacco products.

We will continue to monitor for further developments.