A small city outside of Santa Cruz is looking to become one of the next cities in California to ban the sale of flavored vaping and other tobacco products. Last week, the Scotts Valley city council introduced and unanimously passed the first reading of an ordinance that will bring an end of the sale of such products.
The ordinance also includes a ban on smoking or vaping in outdoor dining spaces, as well as requiring that all tobacco retailers be at least 21-years-old and prohibiting all self-service tobacco displays, according to Halfwheel.
The city council must still hold a second reading of the ordinance, which is currently scheduled for June 1. If it passes its second reading, it will go into effect 30 days later.
According to the city council agenda, Scotts Valley is the only one of the four incorporated cities in Santa Cruz County not to have such a ban. The county also has a ban that applies to its unincorporated parts.
Now it’s official. The San Diego City Council passed an ordinance Tuesday that bans the sale of flavored vaping and other tobacco products — including menthol — in the city, effective Jan. 1, 2023.
The ban follows similar actions in California cities such as Imperial Beach, Encinitas and Solana Beach, along with San Diego County for unincorporated areas.
The council passed the first reading of the issue in April. This second vote makes the ordinance — known as the Stop Adolescent Addiction From E-Cigarettes or SAAFE Act — law.
The ordinance does not apply to the sale of shisha, premium cigars or loose-leaf tobacco and unflavored or tobacco-flavored e-cigarettes, as well as FDA-approved cessation devices that will also be exempt from the ban.
In opposition to the law at the lengthy public hearing in April were dozens of small business owners, who claimed flavored tobacco made up anywhere from 25 percent to nearly half of their business.
Another California city is considering a flavor ban for vaping products. The Orinda City Council introduced and unanimously passed the first reading of an ordinance during its meeting last week, that would ban the sale of all flavored vaping and other tobacco products within the city beginning in just a few weeks.
The ban would prohibit the sale or any other former of distribution of flavored tobacco products, which would include products with menthol, to Patrick Lagreid of Halfwheel. There are no exemptions for premium cigars or other products.
The ordinance will return for a second vote on May 17; if approved it will go into effect 30 days later, though there will be a 120 day grace period before enforcement begins.
In a 2-1 decision, a panel of the U.S. Court of Appeals for the Ninth Circuit held that the Family Smoking Prevention and Tobacco Control Act neither expressly nor impliedly preempts Los Angeles County’s ban on the sale of flavored tobacco products.
On March 18, 2022, a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that Los Angeles County’s flavored tobacco ban is not preempted by the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-31, 123 Stat. 1776 (June 22, 2009) (the “TCA”). Judge Lawrence VanDyke wrote the majority opinion, which was by joined by Judge Karen E. Schreier of the U.S. District Court for the District of South Dakota sitting by designation on the Ninth Circuit. Judge Ryan D. Nelson dissented. The case is R.J. Reynolds Tobacco Co., et al. v. Los Angeles County, et al., No. 20-55930 (9th Cir. Mar. 18, 2022).
As previously reported (here and here), the litigation focuses on a Los Angeles County ordinance making it unlawful for tobacco retailers/licensees to sell flavored tobacco products or components, parts, or accessories intended imparting a characterizing flavor to a tobacco product or nicotine delivery device. Enforcement of the ban was to begin May 1, 2020, and a few days later the plaintiffs initiated litigation in the U.S. District Court for the Central District of California. The plaintiffs contended that the County’s flavored tobacco ban is expressly preempted under the TCA, 21 U.S.C. § 387p(a), or impliedly preempted as an obstacle to the fulfilment of Congress’ purposes and objectives in enacting the TCA. At the trial level, Judge Dale S. Fischer of the U.S. District Court for the Central District of California held that the County’s flavor ban is not preempted. She denied the plaintiffs’ requests for a preliminary injunction and for summary judgment and dismissed the case for failure to state a claim.
The plaintiffs appealed to the Ninth Circuit. The Washington Legal Foundation filed an amicus brief in support of the plaintiffs. The State of California filed an amicus brief in support of Los Angeles County, as did a number of public health, medical, and local government organizations.
Judge VanDyke’s Majority Opinion
Judge Lawrence VanDyke
Judges VanDyke and Schreier affirmed Judge Fischer’s holdings, agreeing that the County’s flavored tobacco ban is not preempted.
On the issue of express preemption, the majority addressed 21 U.S.C. § 387p(a), including its “preservation clause” (subsection (1)), “preemption clause” (subsection (2)(A)), and “savings clause” (subsection (2)(B)).
In the majority’s view, [T]he TCA’s text sandwiches limited production and marketing categories of preemption between clauses broadly preserving and saving local authority, including any “requirements relating to the sale” of tobacco products. This unique “preservation sandwich” enveloping the TCA’s preemption clause reveals a careful balance of power between federal authority and state, local, and tribal authority, whereby Congress has allowed the federal government to set the standards regarding how a product would be manufactured and marketed, but has left states, localities, and tribal entities the ability to restrict or opt out of that market altogether.
As to the preemption clause, the majority held the County’s flavor ban is not a preempted “requirement which is different from, or in addition to, any requirement under the provisions of [the Food, Drug, & Cosmetic Act’s ‘Tobacco Products’ Subchapter] relating to tobacco product standards.” Seeid. § 387p(a)(2)(A). The majority read that clause’s reference to preempted “tobacco product standards” as “pertaining to the production or marketing stages up until the actual point of sale.” Thus, the majority concluded “that the phrase ‘tobacco product standards’ in the TCA’s preemption clause does not encompass the County’s sales ban.”
Ninth Circuit Court of Appeals
The majority continued, opining that even if the County’s flavor ban were covered by the preemption clause, it would still survive preemption as a permissible “requirement[] relating to the sale . . . of[] tobacco products [to] individuals of any age” under the savings clause. Seeid. § 387p(a)(2)(B). The majority opined that “[a] ban on the sale of flavored products is, simply put, a requirement that tobacco retailers or licensees throughout the County not sell flavored tobacco products.” As to the “of any age” language in the savings clause, the majority considered this to “suggest[] that state and local governments are not limited to enacting only age-based rules, but rather can enact regulations for people ‘of any age’—in other words, for everyone.
“Because the County banned the sale of flavored tobacco products to all individuals ‘of any age,’ the savings clause squarely applies.”
Holding that the County’s flavor ban also survived the claim of implied preemption, the majority said that the ban is not “‘an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ expressed in the TCA” as “the TCA does not mandate that certain flavors must remain available for sale, and expressly preserves local authority to enact sales regulations more stringent than the TCA.” (Citation omitted.)
Judge Nelson’s Dissenting Opinion
Judge Ryan D. Nelson
Dissenting, Judge Nelson opined that he would have found Los Angeles County’s flavored tobacco ban expressly preempted.
According to Judge Nelson, the focus of the County’s ban on the point of sale does not remove it from the preemption clause’s coverage as a “requirement which is different from, or in addition to, any requirement under the provisions of [the Food, Drug, & Cosmetic Act’s ‘Tobacco Products’ Subchapter] relating to tobacco product standards.” Seeid. § 387p(a)(2)(A). Judge Nelson referenced two preemption decisions of the Supreme Court addressing other statutory schemes, where the Court reversed the Ninth Circuit’s distinction of a State or local sales limitation from a preempted product standard. SeeNat’l Meat Ass’n v. Harris, 565 U.S. 452 (2012); Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004). He also considered the majority’s reasoning to rely too heavily on the TCA’s preservation clause, which expressly states that it applies “[e]xcept as provided in” the preemption clause. See21 U.S.C. § 387p(a)(1). The savings clause did not save the County’s flavored tobacco ban from preemption, as Judge Nelson read that clause only to “save[] for states the authority to enact age requirements.”
Judge Nelson concluded,
The majority reads these three clauses as a “preservation sandwich served up by the TCA.” Majority at 25. But in holding that Los Angeles’s ban is not preempted, the majority has actually folded itself into a pretzel. The majority argues that the preemption clause is “hardly useless,” because the federal government is still the only one that can technically set standards. Majority at 30–31. But under the majority’s reading, states and municipalities can ban anything made with standards that they don’t like, and thus can “opt out of [the federal standards]” entirely. Id. This is the very reasoning that the Supreme Court says “make[s] a mockery” of a preemption clause. Nat’l Meat, 565 U.S. at 464. By construing the TCA’s preemption clause to allow sales bans that defeat its entire purpose, the majority does just that.
(Alterations in original.)
References in the Eighth Circuit
Business concept about U.S. Eighth Circuit with sign on the piece of paper.
The Ninth Circuit’s majority and dissenting opinions have since been referenced by the parties to an appeal pending before the U.S. Court of Appeals for the Eighth Circuit. R.J. Reynolds Tobacco Co., et al. v. City of Edina, et al., No. 20-2852 (8th Cir.), on appeal fromNo. 0:20-cv-01402 (D. Minn. Aug. 31, 2020) (granting the City’s motion to dismiss and denying the plaintiffs’ motion for preliminary injunction). That case involves similar TCA preemption claims regarding the City of Edina, Minnesota’s prohibition on the sale of flavored tobacco products. It was argued before Judges Steven M. Colloton, Roger L. Wollman, and Jonathan A. Kobes on May 12, 2021.
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It remains to be seen whether the plaintiffs will seek further review of the Ninth Circuit’s decision en banc or before the Supreme Court.
For the time being, the Ninth Circuit’s decision is significant not only for Los Angeles County but also other jurisdictions within the Ninth Circuit that have enacted (or may enact) similar flavored tobacco bans. For illustration of the decision’s significance within the Circuit, as of the filing of California’s amicus brief on May 14, 2021, “at least 71 localities” in the State “ha[d] prohibited the sale of all flavored tobacco products,” and the State Legislature had passed similar legislation subject to a referendum to be held in November 2022. The majority’s holding and essential reasoning in Los Angeles County will be binding upon lower federal courts within the Circuit – and panels of the Ninth Circuit – addressing materially-similar TCA-preemption cases.*
It will also be interesting to see how the Eighth Circuit resolves the City of Edina case, including whether (and to what extent) that court considers Judge VanDyke’s majority opinion – or Judge Nelson’s dissenting opinion – more persuasive.
* Notably, there is a pending Ninth Circuit appeal involving claims that the TCA preempts San Diego County’s flavored tobacco ban, R.J. Reynolds Tobacco Co., et al. v. San Diego Cnty., et al., No. 21-55348 (9th Cir.), on appeal fromNo. 3:20-cv-01290 (S.D. Cal. Mar. 29, 2021) (granting the County’s motion to dismiss and denying the plaintiffs’ motion for preliminary injunction); however, that case has been administratively closed since May 28, 2021, and it is set to remain administratively closed until May 24, 2022
A Los Angeles ban on sales of flavored vaping and other tobacco products is valid because federal law allows it, the Ninth Circuit ruled last week in a case brought by R.J. Reynolds Tobacco Co. and related companies.
The Family Smoking Prevention and Tobacco Control Act “carefully balances federal and local power by carving out the federal government’s sole authority to establish the standards for tobacco products,” Judge Lawrence VanDyke said for the U.S. Court of Appeals for the Ninth Circuit, according to news Bloomberg Law.
The carve-out preserves “state, local, and tribal authority to regulate or ban altogether sales of some or all tobacco products.”
Judge Ryan D. Nelson dissented, saying the ban is expressly preempted. The case is among several Reynolds and other companies have litigated over local efforts to restrict flavored tobacco products.
An appeal over a provision in Edina, Minn., was argued to the U.S. Court of Appeals for the Eighth Circuit in May. And Philadelphia agreed to tear up its ban after federal trial and appeals courts questioned the measure’s validity under a preemption provision specific to Pennsylvania.
Reynolds has argued that under the TCA, state and local governments retain the power to set age, location, and storage requirements for tobacco product sales.
“But one thing states and localities cannot do is prohibit the sale of tobacco products because those jurisdictions disagree with federal tobacco product standards,” Reynolds told the Ninth Circuit in March in the Los Angeles case.
The lower court said the Los Angeles County ordinance doesn’t regulate tobacco product standards. The Ninth Circuit agreed. Reading the term “standards” in the TCA’s preemption clause too broadly would run into textual problems, VanDyke said.
But even if the ban fell within the preemption clause, it would meet an exception under a following provision, the “savings” clause, he said.
“In short, the TCA’s text sandwiches limited production and marketing categories of preemption between clauses broadly preserving and saving local authority, including any ‘requirements relating to the sale’ of tobacco products,” VanDyke said. “This unique ‘preservation sandwich’ enveloping the TCA’s preemption clause reveals a careful balance of power between federal authority and state, local, and tribal authority.”
The Santa Ana City Council on Tuesday voted in favor (7-0) of an ordinance that would ban the sale of flavored vaping and other tobacco products, including hookah. A second reading of the ordinance has not yet been scheduled.
“Santa Ana displayed courageous leadership to save Black lives and put the health of our kids ahead of the profits of Big Tobacco. Of special note is the inclusion of flavored cigars because the abundance of cheap flavored cigars is a big problem in our community,” stated African American Tobacco Control Leadership Council (AATCLC) co-chair Carol McGruder in an email. “We applaud Mayor Sarmiento, Mayor Pro Tem Bacerra, and Councilwoman Mendoza for their leadership in passing this bill.”
A trade group representing business owners in the hookah industry asked the council to reconsider its inclusion of hookah in the ordinance. They said that one way to balance the interests of lawmakers in protecting youth from flavored tobacco products, while preserving the hookah’s rich cultural tradition, would be actions similar to the California state bill SB 793, which bans flavored tobacco products but exempts hookah tobacco, loose leaf tobacco, and premium cigars.
The statewide measure also limits hookah tobacco sales to adults only and no minor can enter an establishment that sells it. The referendum is on the ballot in California on November 8, 2022.
California lawmakers want to ban single-use cigarette filters, e-cigarettes and vape products in the state with the aim of benefiting the environment and public health, according to a story in The Los Angeles Times.
It’s a growing concern as the Cahaba Riverkeeper in Alabama is pleading to the public to properly dispose of vaping devices. As e-cigarette usage has skyrocketed in popularity, so has the number of vaping products and accessories they’ve seen in the watershed, according to CBS 42.
David Butler, the Cahaba Riverkeeper, explains that the effect of lithium ion batteries and vaping chemicals has on local wildlife and waterways is still unknown. But the rise in the amount of devices ending up in the river, Butler says is cause for concern.
Vaping devices like the one pictured above have increasingly been found in the Cahaba Riverkeeper. “It has the battery in it, it has the chemicals that are used in the vape juice, metal, plastic, the wrapping,” Butler said. “What impact will that have on the environment? We don’t know.”
California’s Assembly Bill 1690 would authorize local prosecutors to levy a fine of $500 per violation, defined as the sale of one to 20 items.
Supporters of the bill say cigarette filters offer no health benefits but cost the state millions of dollars to clean up and release toxic microplastics into the environment.
Roughly 12 billion cigarettes are sold in California each year, 90 percent of which are filtered, according to San Diego State epidemiology and biostatistics professor Thomas Novotny.
Nicholas Mallos, senior director of the Trash Free Seas Program at the Ocean Conservancy, said that in 2020 cigarette butts made up nearly 30 percent of the trash collected by volunteers on Coastal Cleanup Day. The city of Los Angeles alone incurs an estimated $19 million a year in cigarette filter clean-up costs. Public agencies statewide spend about $41 million a year.
The bill also targets vape products, which contain batteries and fluids that damage the environment. Reusable and rechargeable vape products would still be available under AB 1690.
Similar bills previously proposed have been unsuccessful due to “tobacco money,” according to proponents of the legislation. Assemblymember Mark Stone believes this time will be different due to a “growing awareness” of the issues and a “stronger coalition” of supporters.
The bill does not include a target date for when the ban would take effect.
The new study by the University of California found that vaping could cause some eyesight impairments. The study included 1,173,646 adults in the US aged between 18 and 50, according to the The Telegraph. At least one researcher, however, says the study doesn’t correlate vaping and eyesight damage.
Current vapers were 34 percent more likely to suffer from visual impairments compared to those who had never tried it, and former vapers 14 percent more likely to suffer impairments, according to the study.
Credit: Stasique
Participants were asked if they ever have smoked or vaped and asked if they had suffered visual impairment. The findings, published in the American Journal of Ophthalmology, found that vaping may also promote oxidative stress, a key factor in the development of chronic diseases as well as cataracts and glaucoma.
Simon Capewell, a professor and clinical epidemiologist at the University of Liverpool, said the latest California study did not prove a link between vaping and eye damage. But he said there are “many nasty toxins” in e-cigarette vapor.
“But it is important to note that at this point, it’s unclear whether those risks are connected to vaping or something else,” the story states.
The eyesight study follows a recent study that found that vaping caused erectile disfunction. That study was also found to be flawed.
A major issue with the ED study is that participants were classified as current someday (“i.e., not every day or occasional”) or daily vapers, or smokers if they consumed cigarettes “every day or some days.” Beyond this self-reported information, the researchers didn’t know how much or which e-liquids the vapers in their study used, nor did they know how many cigarettes each smoker consumed.
At its most recent meeting, the Redwood City City Council in California unanimously passed a ban on the sale of flavored vaping and other tobacco products.
Credit: Valeriya Zankovych
The ordinance also prohibits the sale of all electronic cigarettes and electronic smoking devices, and bans all pharmacies from selling tobacco products by way of making them ineligible to obtain a tobacco retailer’s permit.
The ordinance does create an exemption for businesses holding a tobacco retailer’s permit that sell flavored tobacco for on-site hookah consumption, provided the business was operational and licensed as of Nov. 22, 2021. The rules do not allow for the exemption to be transferable or assignable to a subsequent owner of the business.
The city joins eight cities in San Mateo County and many more across the state and nation to ban flavored tobacco products over their health impacts, particularly to young consumers. Burlingame, East Palo Alto, Half Moon Bay, Menlo Park, Portola Valley, San Carlos, San Mateo, and South San Francisco have all passed similar ordinances.
On October 28, 2019, the City Council directed staff to research and draft an ordinance for consideration to ban flavored tobacco and electronic cigarettes (e-cigarettes), modeled after the County of San Mateo’s ordinance.
There is no exception for premium cigars in the ordinance. The ban will go into effect on April 1, 2022. Meanwhile, statewide legislation (SB 793) to ban the sale and distribution of flavored tobacco products is currently on hold pending the result of a ballot measure in the Nov. 8, 2022 election.
The Attorney General for California, Rob Bonta, on Friday filed a brief in the U.S. 9th Circuit Court of Appeals in support of Los Angeles County’s ordinance banning the sale of flavored vaping and other products.
Credit: Elsa Olofsson
In the brief, Bonta argues that the federal Tobacco Control Act preserves state and local authority to implement sales restrictions on flavored tobacco products — as several courts have already recognized in similar cases brought by tobacco manufacturers and retailers against other state and local ordinances, according to NBC Los Angeles.
“Again, and again, Big Tobacco has tried to steamroll state and local governments’ efforts to safeguard the health of their youngest residents in order to protect their bottom line,” Bonta said in a statement. “We have a responsibility to protect Californians from the harms of tobacco use, and a legal right to implement regulations that do so.
“Every year, hundreds of thousands of Americans will die from a tobacco-related disease, and many more will smoke a cigarette for the first time, starting down the deadly path toward addiction,” he said. “We fully support the county of Los Angeles and their defense of this important ordinance.”
Combustible tobacco use is the number one preventable killer in the United States, resulting in more deaths than the number of people who die from alcohol, AIDS, car accidents, illegal drugs, murder, and suicides — combined. No one has ever been reported to have died from using legal nicotine vapor products.
States and their localities have served as “laboratories” for the development of new tobacco policy for decades, Bonta’s office said. Recognizing that flavored tobacco products drive tobacco use initiation — especially among young people — states and localities around the country have implemented prohibitions on the retail sale of flavored tobacco products. In California alone, at least 71 cities and counties have prohibited the sale of all flavored tobacco products to consumers.
