California Argues In Favor of Los Angeles’ Tobacco Flavor Ban In 9th Circuit Brief

The State of California through its attorney general, Rob Bonta, filed an amicus brief on Friday in a Ninth Circuit lawsuit in support of Los Angeles County and its ordinance banning the sale of flavored tobacco products. The attorney general argued that states and local governments have the authority under the Tobacco Control Act to restrict the sales, and that it is clear flavor bans are within state authority.

“Again, and again, Big Tobacco has tried to steamroll state and local governments’ efforts to safeguard the health of their youngest residents in order to protect their bottom line,” said Attorney General Bonta in a press release. “We have a responsibility to protect Californians from the harms of tobacco use, and a legal right to implement regulations that do so. Every year, hundreds of thousands of Americans will die from a tobacco-related disease, and many more will smoke a cigarette for the first time, starting down the deadly path toward addiction. We fully support the County of Los Angeles and their defense of this important ordinance.”

Bonta cited that in California 36.5% of high school students report that they have used tobacco products, and 86.4% of those students used a flavored product. Reportedly, 71 cities and counties in California have prohibited the sale of flavored tobacco products to address youth tobacco use, and multiple laws have been challenged in courts. The press release cited that “several courts” have ruled that states and local governments can ban flavored products.

California’s brief argued that “states and their localities have served as laboratories for the development of new tobacco policy,” citing circumstances where laws which began in states became federal law. Reportedly, the Tobacco Control Act included a clause to keep federal preemption from taking state and local authority. The attorney general explained that this appeal implicated other public health measures and this aspect of the Act. 

“The district court below correctly read the TCA as preserving that authority and preempting only measures that would necessarily interfere with the FDA’s new gatekeeping authority and the federal government’s already-established authority over labeling and advertising. This Court should affirm the district court’s judgment and uphold Congress’s express preservation of state and local authority to determine which tobacco products may be sold to consumers within their jurisdictions,” the amicus brief claimed. 

Additional Amicus briefs were submitted on Friday in favor of the flavor ban by public health and medical organizations, and the Public Health Law Center along with various other groups