No preemption in tobacco ban, judge says

A federal judge rejected a motion for preliminary injunction that challenged San Diego County's ban on flavored tobacco products, finding that the ordinances did not preempt federal authority because it only involves sales and distribution, not manufacturing standards.

RJ Reynolds and other tobacco manufacturers last year challenged two San Diego County tobacco ordinances. One permanently prohibited the sale of flavored products, and another banned electronic cigarettes or devices for one year. The bans, which were enacted to stop young people from using tobacco, do not apply to products approved by the Food and Drug Administration. RJ Reynolds et al. v. County of San Diego et al., 3:20-CV-1290 (S.D. Cal., filed July 9, 2020).

Tobacco companies argued they lost substantial revenue due to the ordinances and sought declaratory and injunctive relief. On March 3, the companies filed a supplemental complaint adding two new claims, arguing that the ban is expressly and by implication preempted by federal law, also known as the Family Smoking Prevention and Tobacco Control Act. The companies said the sales ban affected tobacco product standards in conflict with federal statute, because it regulated additives and properties found inside such products.

U.S. District Judge Janis L. Sammartino of the Southern District of California granted the county's motion to dismiss without prejudice. Sammartino found that the act allows states and other entities to continue regulating tobacco sales as long as they don't conflict with federal regulations. A tobacco product standard is a manufacturing regulation, but the county's ban doesn't direct manufacturers as to what ingredients they can include in their products in conflict with federal law, and only involves sales, the judge found.

While not binding, other courts that evaluated similar other bans on flavored products uniformly found they were not preempted by the act, the judge added. With no authority from the 9th U.S. Circuit Court of Appeals, Sammartino ruled she would follow precedents set by the 1st and 2nd circuits, both of which previously concluded that "the sales regulations in the ordinances do not 'clearly infringe on the FDA's authority to determine what chemicals and processes may be used in making tobacco products.'"

Even if other sales bans are stricter than the federal ban as long as the regulation is not covered by the preemption clause in the act, "a stricter sales ban can stand side-by-side with federal regulations," Sammartino concluded.

Steven N. Geise, partner at Jones Day who represents the tobacco companies, could not be reached by comment Tuesday.

RJ Reynolds and other tobacco companies also previously challenged state Senate Bill 793 which banned the sale of flavored products or flavor enhancers. A referendum challenging SB 793 has paused the ban in the state until a majority of voters approve it in the 2022 elections.

-- Gina Kim