Supreme Court declines to block flavored tobacco ban in California

WASHINGTON – The Supreme Court on Monday refused to block law in California banning flavored tobacco, clearing the way for the ban to take effect next week.

As is the court’s practice when ruling on urgent applications, his short definition is not reasoned. No disagreements noted.

RJ Reynolds, the maker of Newport menthol cigarettes, had asked the judges to intervene before next Wednesday, when the law is due to take effect. The company, joined by several smaller ones, argued that a federal law, the Tobacco Control Act of 2009, allows states to regulate tobacco products but prohibits banning them.

“They can raise the minimum purchase age, limit sales to certain times and places and impose licensing regimes,” lawyers for Reynolds and several smaller companies wrote in an emergency filing. “But one thing they can’t do is completely ban the sale of these products because they don’t meet the state or locality’s preferred standards for tobacco products.”

Government officials responded that the federal law is intended to preserve the longstanding power of state and local governments to regulate tobacco products and prohibit their sale. Before and after the federal law went into effect, they write, state and local governments have taken action against flavored tobacco and e-cigarettes.

Whether federal law preempts state law involves the interpretation of interrelated and overlapping statutory language in federal law. State officials told the justices that “courts have universally rejected the tobacco industry’s arguments that state and local laws restricting or prohibiting the sale of flavored tobacco products are expressly preempted by this act.”

They added: “Indeed, in the 13 years since Congress passed” the 2009 law, “not a single court has agreed with the tobacco industry’s position that the act preempts restrictions and bans on the sale of flavored tobacco products.”

Reynolds also lost on that issue in March in a lawsuit over a Los Angeles County ordinance similar to the state law. A three-judge panel of the United States Court of Appeals for the Ninth Circuit in San Francisco, held that the 2009 Act did not supersede the Ordinance. Reynolds has asked the Supreme Court to consider this case.

A federal judge hearing the company’s separate challenge to the state law ruled in November that it was bound by that precedent and refused to block the law.

The law was supposed to go into effect early last year but was put on hold while voters considered a referendum to challenge it. The tobacco industry spent tens of millions of dollars supporting the measure, but 63 percent of the state’s voters approved the law in November.

In their report to the Supreme Court, civil servants urged the judges not to delay the law any longer. “The failed referendum campaign has already delayed implementation” of the law by nearly two years, they wrote, “allowing children and teenagers across the state to be introduced to the deadly habit of using tobacco through flavored tobacco products throughout that period.”

The plaintiffs told the judges they face “significant financial losses” from the law, noting that menthol cigarettes represent about a third of the cigarette market.

Allowing a ban on menthol cigarettes, the plaintiffs’ lawyers wrote, “could also cause significant negative consequences for communities of color, including African-Americans. Because African-American smokers in particular disproportionately prefer menthol cigarettes, California’s ban would disproportionately harm them, including exposing them to negative encounters with law enforcement.

The argument angered Valerie Yerger, a UC San Francisco health policy researcher and founding member of the Africa Tobacco Control Leadership Council.

“When we look at the need to protect African-Americans from the predatory exploitation of the tobacco industry, we need to look at the fact that banning menthol will protect them,” Ms. Yerger said. “This will not only add years to people’s lives, but also increase the quality of their lives.”

Government officials pointed to justice letter in April from the NAACP to the Food and Drug Administration, lamenting what the group called “the tobacco industry’s sensational marketing practices” and the fact that “African-Americans suffer disproportionately from being addicted to cigarettes and the effects of long-term tobacco use.”

Last week, the Justice Department announced an agreement for 200,000 retailers to post eye-catching signs in their stores about the dangers of cigarette smoking. The order takes effect in July and gives retailers three months to put up the signs. The settlement settles the terms of a 1999 racketeering lawsuit brought by the US government against tobacco companies, including Reynolds.

Also last week, a federal court judge in Texas sided with tobacco companies, blocking an FDA order to place large graphic warnings about the harms of cigarettes on individual packages.

Christina Jewett contributed reporting.

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