Ninth Circuit Denies Tobacco Companies’ Petition for Rehearing Over Los Angeles Flavored Tobacco Ban

On Wednesday the Ninth Circuit issued an order denying the appellants, R.J. Reynolds Tobacco Company, American Snuff Company and Sante Fe Natural Tobacco Company, Inc., joint petition for a rehearing en banc in the case of  R.J. Reynolds Tobacco Company et al. v. County of Los Angeles.

The appellant’s petition for rehearing en banc was filed after the Ninth Circuit issued an opinion in favor of the appellees, the Country of Los Angeles and the Country of Los Angeles Board of Supervisors. 

This action was initiated when the tobacco company plaintiffs brought a lawsuit challenging  the County of Los Angeles’s ban on the sale of all flavored tobacco products. The tobacco companies argued that the federal Family Smoking Prevention and Tobacco Control Act (TCA) preempted the county’s ban. 

However, the district court held, and the Ninth Circuit affirmed, that the TCA carefully balances federal and local power by carving out the federal government’s sole authority to establish the standards for tobacco products, while preserving state and local authority to regulate or ban sales of some or all tobacco products and therefore upheld the County’s ban. 

Judge Nelson was the only dissenting judge of the three Judge panel of the Ninth Circuit. Nelson argued that the Los Angeles ban was preempted by the TCA because the county’s ban was broader than the federal ban and the TCA preemption clause relates to not only the manufacture but also the sale of tobacco.  

In the companies’ petition for rehearing, they argued that the Ninth Circuit’s opinion affirming the district court’s judgment “conflicts with decisions of the United States Supreme Court and implicates questions of exceptional importance.” Specifically, the companies argued that the text of the TCA and Supreme Court precedent do not allow a state or municipality to defeat the entire purpose of the TCA’s preemption Clause with a sales ban.  

Nonetheless, the Ninth Circuit voted 2-1 to deny the petition for rehearing with Judge Nelson being the only judge voting in favor of rehearing. The appellants were represented by Jones Day