Tobacco companies sue to delay California ban on flavored products

Attorneys representing the tobacco industry sued to ensure a state ban on flavored tobacco does not go into effect pending a referendum.

Gov. Gavin Newsom signed SB 793 in August. Set to take effect Jan. 1, it would bar retailers from selling a “flavored tobacco product or a tobacco product flavor enhancer.”

Just three days later, a coalition led by R.J. Reynolds Tobacco Co. informed Attorney General Xavier Becerra they intended to challenge the law with a 2022 referendum. The group turned in more than 1 million signatures to Secretary of State Alex Padilla on Nov. 24.

The writ filed Monday seeks a judicial declaration that SB 793 will not go into effect until voters weigh in on the referendum. This would suspend the law for up to two years, even if the proponents lose. Agenbroad vs. Padilla, 34-2020-80003542-CU-WM-GDS (Sac. Super. Ct., filed Dec. 1, 2020).

“This case involves one of the most fundamental rights of the electorate guaranteed by the California Constitution — the power of the voters to pursue a referendum to prevent a law from going into effect,” stated the complaint filed by Sean P. Welch with Nielsen Merksamer Parrinello Gross & Leoni LLP.

Welch did not respond to a call and email seeking comment by press time.

The named plaintiff in the case is another attorney, Aaron L. Agenbroad. The partner in charge of the San Francisco office of Jones Day led the team that submitted the referendum papers.

The writ claims Becerra and Padilla, the named defendants, have taken “the erroneous, unconstitutional position” that the referendum won’t halt enforcement of the law.

“Respondents apparently believe that SB 793 should be allowed to temporarily go into effect on January 1, 2021, and remain temporarily in effect,” the writ states.

The writ may be partly a response to an opposition motion Becerra’s office filed on Nov. 12 in a separate case over SB 793. In that case, R.J. Reynolds claims the law is federally preempted for violating the Supremacy and Commerce Clauses of the U.S. Constitution. It was signed by Steven N. Geise, partner-in-charge of the San Diego office of Jones Day. R.J. Reynolds Tobacco Company v. Becerra, 3:20-cv-01990-JLS-WVG (S.D. Cal., filed Oct. 9, 2020).

The state’s opposition motion, signed by Deputy Attorney General Peter F. Nascenzi, cites research on the role flavored tobacco plays in enticing young people to smoke and makes several arguments against federal preemption. Nascenzi cites case law he said shows the Family Smoking Prevention and Tobacco Control Act of 2009 gives state and local government the authority to enact “flavor bans.”

“In every instance, the restrictions on the sale of flavored tobacco products have been found constitutional and consonant with the TCA,” he wrote.

The opposition motion does not mention the pending referendum, but it does repeatedly mention the pending enforcement date.

“The state’s interest in the health of its residents outweighs the potential marginal lost sales that might result from enforcement of S.B. 793, and the Court should not enjoin it from coming into effect on January 1, 2021,” Nascenzi wrote.

The referendum effort has already sparked controversy. In October, the Tobacco Free Kids Action Fund formally requested Becerra investigate alleged “illegal signature-gathering tactics.” The group, which supported SB 793, claimed signatures gatherers were misleading people into signing a petition to put the referendum on the ballot, including telling them they were signing on to a ban on flavored tobacco products.

Supporters of SB 793 have also claimed tobacco companies could make more than $1 billion in additional sales by delaying the law for 22 months.