Note
Dec. 21 update The California law banning in-store sales of flavored vape and tobacco products took effect today, following R.J. Reynolds' and vape and tobacco retailers' failed attempt to obtain an injunction from the Supreme Court that would have blocked the law.
The new law bans sales in stores of vape products—with or without nicotine—in any flavor other than tobacco. It also prohibits sales of flavored nicotine pouches, lozenges, smokeless tobacco (including snus), menthol cigarettes and flavored small cigars. Hookah tobacco, premium cigars and pipe tobacco are exempted from the ban.
The law does not ban online sales of flavored vaping products, although some California cities and counties may ban online sales themselves. There is also a federal law that prohibits most vape product shipping though the U.S. Mail, and UPS and Fedex also prohibit vape deliveries.
Note
Dec. 12 update The Supreme Court has denied the application for an emergency injunction that would have put California’s ban on flavored vapes and tobacco on hold. The court posted its decision without comment, offering no explanation and noting no dissents.
The law, approved by voters on Nov. 8 and expected to take effect Dec. 21, bans in-store sales of almost all flavored vaping, nicotine and tobacco products. It exempts hookah products, pipe tobacco and premium cigars. The law bans flavored vaping products with and without nicotine, but it does not prohibit online sales.
The Supreme Court decision is not a ruling on the merits of the plaintiffs’ challenge. The court ruled only on the injunction itself. The lawsuit against the state will go forward still, heard in the District Court for the Southern District of California.
Nov. 30, 2022
R.J. Reynolds and the other plaintiffs challenging the state of California’s flavored vape and tobacco ban have asked the Supreme Court to grant an injunction preventing the ban from being enforced while the lawsuit is decided. The ban was passed by California voters on Nov. 8, and is set to take effect sometime in December.
The Supreme Court application was filed Tuesday. Previously, the District Court for the Southern District of California had denied motions for both a temporary injunction and an injunction pending appeal, and the Ninth Circuit Court of Appeals then denied an appeal of the district court decision. (You can find the lower court decisions and the Supreme Court application for injunction on the Supreme Court docket.)
No matter how the Supreme Court decides on the requested injunction, the original lawsuit will proceed in the district court.
The plaintiffs in the lawsuit are R.J. Reynolds Tobacco Company, R.J. Reynolds Vapor Company, American Snuff Company, LLC, Santa Fe Natural Tobacco Company, Inc.; Modoral Brands Inc., Neighborhood Market Association, Inc., and Morija, LLC (Vapin’ the 619). (Except for the last two, all plaintiffs are subsidiaries of Reynolds American Inc., which is itself owned by British American Tobacco.)
The challenge rests on whether the state’s flavored product sales ban amounts to a de facto product standard, which Reynolds says violates federal authority granted to the FDA by the Tobacco Control Act. Reynolds cites precedent in unrelated cases where the Supreme Court agreed states could not hide their intention to create product standards by calling them a sales ban. Local and state laws are preempted by federal law.
The same plaintiffs unsuccessfully sued Los Angeles County in 2020 on the same grounds and lost on appeal in the Ninth Circuit. That case is also before the Supreme Court, which could decide whether to accept it for argument as early as Dec. 2.
According to Gregory Conley of the American Vapor Manufacturers Association (AVM), the argument one Ninth Circuit judge made in his dissent in the Los Angeles County case could attract the attention of conservative Supreme Court justices.
"Judge Ryan D. Nelson wrote a concise and incisive dissent in the Los Angeles case that may prove appealing to five or more justices,” Conley told Vaping360. “Strictly as a matter of law, it is hard to understand how a law that defines what a product can and cannot contain is not a 'product standard.' The mere fact that Congress permitted states to regulate how tobacco products are sold and distributed does not mean that power is unlimited." AVM has submitted an amicus brief to the court in support of the lawsuit against the state.
The high court’s position on those issues could decide the Los Angeles County case—and could influence whether they grant an injunction now in the statewide case.
Jim McDonald
Vaping for: 13 years
Favorite products:
Favorite flavors: RY4-style tobaccos, fruits
Expertise in: Political and legal challenges, tobacco control haters, moral panics
Jim McDonald
Smokers created vaping without help from the tobacco industry or anti-smoking crusaders, and I believe vapers have the right to continue innovating to help themselves. My goal is to provide clear, honest information about the challenges vaping faces from lawmakers, regulators, and brokers of disinformation. I’m a member of the CASAA board, but my opinions aren’t necessarily CASAA’s, and vice versa. You can find me on Twitter @whycherrywhy
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