Companies ask Supreme Court to stop flavored-tobacco ban in California

A group of tobacco companies have asked the Supreme Court to issue an injunction on California’s ban on flavored tobacco products, which was voted into law at the ballot box earlier this month.

Companies including the R.J. Reynolds Tobacco Company, the Santa Fe Natural Tobacco Company and Modoral Brands Inc. submitted a request for an injunction to the Supreme Court arguing that sales bans in the 9th Circuit Court of Appeals, of which California is a part, have been reversed by the court on prior occasions.

On Election Day, 62 percent of California voters chose “Yes” on the proposition to prohibit the sale of flavored tobacco products. The ban affects products with non-tobacco flavors, such as fruit, mint and vanilla. Vending machines or stores that are found to be in violation face a $250 fee.

The ban is set to go into effect beginning on Dec. 22.

The tobacco companies are asking that the Supreme Court consider whether the Family Smoking Prevention and Tobacco Control Act, a 2009 bill that gives the secretary of Health and Human Services the power to restrict or allow the sale of tobacco products, preempts the ban issued in California.

The 9th Circuit Court of Appeals has already rejected a request for emergency injunction by the same parties, finding that while the Tobacco Control Act gives the Food and Drug Administration the authority to regulate tobacco products, it does not entirely take away local and state authority over regulation of the drug.

The companies stated that they will “suffer irreparable harm because they will be unable to sell their products in one of the Nation’s largest markets,” if this ban is allowed to stand.

They cited a previous cases where the Supreme Court overturned the 9th Circuit’s findings on bans regarding the sale of meat from “downer” animals, ones that are unable to walk. Federal law requires that downer cows not be slaughtered for human consumption.

In this earlier case, the court had ruled that federal law explicitly preempted the California law, which sought to include other livestock into the downer slaughter ban.

Despite the overwhelming vote in support of the ban, the tobacco companies claimed in their request that public interest “strongly” favored the injunction. They also claimed that this ban would push consumers to the “illicit market” for the banned products.

While the companies cite the Tobacco Control Act, the bill also includes a provision that prohibits the sale of tobacco products with additives, natural or artificial, or that characterizes the flavor of the tobacco smoke, apart from menthol or tobacco.

The bill explicitly states that it does not “prohibit federal agencies, states, political subdivisions, or Indian tribes from enacting additional or more stringent measures,” though other measures like tobacco product standards, premarket review and misbranding still fall under federal authority.