San Diego County’s attempt to ban flavored tobacco is back in court

R.J. Reynolds Tobacco Company has filed a supplemental federal complaint against San Diego County over its revised flavored tobacco ban.

"The new ordinance is just as unconstitutional as the first," wrote Steven N. Geise, partner-in-charge of the San Diego office of Jones Day in the Thursday filing. "The federal Tobacco Control Act expressly preempts local bans on flavored tobacco products."

The North Carolina company sued last summer to block the county's original ordinance. In December, the county board of supervisors revised the ordinance to ban "flavored tobacco products" rather than "flavored smoking products." The new rules go into effect on July 1.

Geise and his team argue the ordinance violates the supremacy clause of the U.S. Constitution, citing Maryland v. Louisiana, 451 U.S. 725, 746 (1981). The complaint also names the county's chief administrative officer, Heler N. Robbins-Meyer. R.J. Reynolds Tobacco Company v. County of San Diego, 3:20-cv-01290-JLS-WVG (S.D. Cal., filed July 9, 2021).

The case is one of several fronts in an ongoing war between state and local governments and tobacco companies. Reynolds, Philip Morris International Inc. and other tobacco companies have also sued to stop a California state ban on flavored tobacco products.

Gov. Gavin Newsom signed SB 793 in August. Tobacco companies quickly gathered signatures to place a referendum on the ballot in 2022. They then sued to delay implementation of the law pending the vote. Attorney General Xavier Becerra chose not to fight the request. Agenbroad v. Padilla, 34-2020-80003542-CU-WM-GDS (Sac. Super. Ct., filed Dec. 1, 2020).

They also sued in federal court to block implementation of the law. R.J. Reynolds Tobacco Company et al. v. Becerra, 3:20-cv-01990-JLS-WVG (S.D. Cal., filed Oct. 9, 2020).

Government attorneys have repeatedly argued state and local governments may ban flavored tobacco.

"The questions asked by this suit have already been answered by federal courts across the country -- state and local bans on the retail sale of flavored tobacco products are not preempted by the Family Smoking Prevention and Tobacco Control Act of 2009," Deputy Attorney General Peter F. Nascenzi wrote in a January brief, seeking dismissal of Reynolds' statewide case.

"The TCA expressly maintains broad state authority over tobacco products, while placing the Food and Drug Administration as gatekeeper for tobacco products entering the U.S. market in the first instance," Nascenzi added. "The FDA does not determine which products should be sold in the several states -- those policy choices are left to the states -- the FDA determines only which products may be sold."

San Diego County Counsel Thomas E. Montgomery has also moved to dismiss, saying the plaintiffs failed to make a valid claim. Both Southern District cases are before U.S. District Judge Janis L. Sammartino, who has asked the parties to brief the cases without oral argument.