Panel seems divided over ban on flavored tobacco products

An attorney for tobacco companies asked a 9th U.S. Circuit Court of Appeals panel to overturn a Los Angeles County ordinance banning flavored products on the grounds it is preempted by federal law.

The panel seemed divided on the question, with Judge Ryan D. Nelson, an appointee of President Donald Trump, appearing to side with a lawyer for R.J. Reynolds Tobacco Company that the county couldn't ban flavored tobacco outright.

States, counties and cities "still have huge amounts of rights" over the sale of tobacco, such as "where and how it's sold," Nelson said. "What they can't do is prohibit it."

R.J. Reynolds and two other companies argue the 2019 ordinance is preempted by the Family Smoking Prevention and Tobacco Control Act of 2009, saying the county cannot prohibit the sale of tobacco products that are covered by the federal law.

Kent R. Raygor, a partner with Sheppard Mullin Richter & Hampton LLP who represents the county, argued that states and other local jurisdictions historically have the authority to regulate tobacco sales, especially to minors.

"In areas of traditional state and local regulation like for public health purposes, the historic power of states and local governments is not to be preempted by a federal act unless it was the clear and manifest purpose of Congress," Raygor told the panel. R.J. Reynolds Tobacco Company et al. v. County of Los Angeles et al., 20-55930 (9th Cir., filed Sept. 8, 2020).

Noel J. Francisco, a Jones Day partner who represents the tobacco companies, said Los Angeles County officials can regulate tobacco sales. "The one thing they cannot do is prohibit the sale of a tobacco product based on its properties," he told the panel.

San Diego County and the city of Palo Alto are other California jurisdictions that also have banned the sale of flavored tobacco.

Oral arguments often turned into a debate between him and 9th Circuit Judge Lawrence VanDyke, another Trump appointee who said states have imposed similar bans going back more than a century.

At one point, VanDyke answered a question Nelson aimed at Raygor.

"Judge VanDyke, I asked counsel a question," Nelson said. "I appreciate you answering for him."

A provision in the 2009 federal law, called the Saving Clause, allows state and local ordinances to avoid preemption if they adopt ordinances that limit sales to minors or restrict where tobacco products may be sold.

But Francisco, focusing on the language of the federal law, said other courts have only allowed restrictions that did not ban entire categories of tobacco products.

"Court should not try to psychoanalyze the legislative process," he said.

VanDyke agreed with that, saying "I'm a textualist," but said the structure of the tobacco law differs from other laws such as a California statute concerning the treatment of livestock that was struck down by the U.S. Supreme Court in 2012.

The court reversed a 9th Circuit ruling that upheld the California law, instead ruling it was preempted by the Federal Meat Inspection Act. National Meat Association v. Harris, 565 U.S. 452 (2012).

The third member of the panel was U.S. District Judge Karen E. Schreier of the District of South Dakota, an appointee of President Bill Clinton.