R.J. Reynolds and Philip Morris Sue CA For New E-Cigarette Ban

A group of tobacco and vaping companies filed a federal lawsuit on Friday asking the court to set aside California’s new law, Senate Bill 793, banning menthol cigarettes, menthol-flavored vapor products, and numerous other flavored tobacco products manufactured and sold by the plaintiffs. The Southern District of California suit seeks declaratory and injunctive relief against the California Attorney General Xavier Becerra and the District Attorney for the County of San Diego Summer Stephan.

The plaintiffs are a collection of R.J. Reynolds and Philip Morris companies that oppose the ban, arguing that it violates the Constitution on both preemption and dormant Commerce Clause grounds. The plaintiffs contend that the law is “an overbroad reaction to legitimate public-health concerns about youth use of tobacco products…”

The tobacco companies claim that they are “committed to keeping tobacco products out of the hands of youth… [by] ensur[ing] their marketing is accurate and responsibly directed to adult tobacco consumers aged twenty-one and over.” Further, they argue, the U.S. Food and Drug Administration (FDA) “shares” their goals. For example, the plaintiffs explain, earlier this year, the FDA effectively banned the sale of most flavored cartridge-based electronic nicotine delivery system (ENDS) products.

According to the complaint, SB 793, signed into law by Governor Gavin Newsom on Aug. 28, “bans sales to adult tobacco consumers in the state and, moreover, indiscriminately extends the ban to nearly every conceivable flavored tobacco product, from menthol cigarettes and smokeless tobacco to flavored vapor products and other flavored products.” They contend that “[t]his categorical ban is unjustified.”

The plaintiffs claim that Congress delegated the authority to ban flavored tobacco products to the FDA. Furthermore, the filing contends, SB 793 “could have adverse public health consequences,” citing a comment from the FDA’s Director of the Center for Tobacco Products that a sudden and major reduction in the availability of ENDS products could pose a risk to adults, who currently use ENDS, and who would be forced to resort to combustible tobacco products.

The plaintiffs’ legal arguments are three-fold: the California ban is preempted by federal law both expressly and impliedly, and it also violates the dormant Commerce Clause. In turn, the complaint requests that the court declare the law unconstitutional, preliminarily and permanently enjoin the defendants from enforcing it, and reimburse the plaintiffs their litigation expenses.

The R.J. Reynolds plaintiffs are represented by Jones Day, and the Philip Morris plaintiffs by Arnold & Porter Kaye Scholer LLP and Williams & Connolly LLP.