A global alliance of vapers gathered in Brussels on Wednesday to call on European policymakers to stand against possible bans on flavored vaping products. The World Vapers’ Alliance (WVA) displayed an art installation in front of the European Parliament with a simple message – “Flavors help smokers quit.”
This marks the third event of WVA’s Europe-wide campaign #FlavoursMatter, according to a press release. The campaign was launched with one aim: to show policymakers in Europe and across the world that vape flavors are instrumental for smoking cessation.
The group hosted demonstrations in Stockholm, Sweden and the Hague, Netherlands in March 2022. Shortly after the demonstration, a postponement of the Dutch vape flavor ban by six months was announced in the Netherlands.
“Flavors play a crucial role in helping consumers quit smoking – millions of Europeans have already stopped by switching to vaping. The variety of flavors is one of the most important reasons many people switch to e-cigarettes and never go back to smoking. We have already seen that vaping works,” says Michael Landl, director of World Vapers’ Alliance. “It helped millions of people change their lives and now, we need policies to catch up. Therefore, we are delighted that some MEPs are with us and help to defend vaping flavors.”
The installation was attended by Member of the European Parliament Pietro Fiocchi.
“We all agree that not smoking is the best choice, but we also know very well that tax increases and limitations are not working solutions. I do strongly believe that alternative systems to traditional smoking are the biggest instrument to greatly reduce the percentage of lung diseases and cancer,” said Fiocchi. “Any ideological approach against such systems is negative and against any scientific data.”
A bill banning flavored e-cigarettes and other tobacco products failed to make it past key Democratic state senators Tuesday.
Members of the Senate appropriations committee voted down the bipartisan proposal, HB22-1064, on a 5-2 vote, according to Colorado Public Radio. Three Republicans were joined by Democratic state Sens. Robert Rodriguez and Rachel Zenzinger in voting no.
The bill had been heavily lobbied and one of the session’s most high-profile and closely watched bills. But Gov. Jared Polis said he opposed it and said the issue should be handled at the local level.
Rep. Kyle Mullica, a Democrat from Northglenn, said he hoped the measure would help prevent young people from getting hooked on flavored vaping products.
“We’ve already seen a whole generation become addicted and (the bill) was going to do something about that and was going to make sure that we took a stand here in Colorado and that we put the health of our kids first,” said Mullica, one of four sponsors. “It’s a little disappointing not seeing it get passed.”
Senate President Steve Fenberg signaled the demise of the bill with reporters earlier in the day. The Senate’s top Democrat said he didn’t think there was time left in the calendar given everything else lawmakers had to finish.
On Monday, the bill was still alive and moving through the Senate. The finance committee advanced it on a 4-1 vote.
Innovations in technology and regulation could help ease the concerns surrounding youth access to vaping products.
By Timothy S. Donahue
Most tobacco control experts agree that vaping is safer than smoking combustible cigarettes. The primary concern for anti-vaping groups, legislators and regulatory officials isn’t where e-cigarettes fall on the continuum of risk, it’s about preventing youth access to nicotine products. The best way to prevent youth access is through innovation, according to vapor industry experts. Technology and regulatory policies will both be required for the vaping industry to satisfy its skeptics.
Technological innovations have been the vaping industry’s primary contribution to battling youth access. Several companies have developed devices that use biometrics, such as fingerprint and facial recognition. The OBS Cube FP Kit, for example, uses fingerprint recognition to prevent unauthorized use. However, a 2020 review by ecigclick.com found the fingerprinting function complicated to configure. “The instruction manual is total pants … it really is,” the reviewer wrote. “So far I haven’t worked out how to use the fingerprint stuff, there are diagrams in the book which relate to bugger all on the actual device.”
Juul Labs launched its C1 in Canada in 2019. The device paired with an Android smartphone to limit who could use it and to provide monitoring of what and how often the user vaped. Juul says the C1 could only be used if people got through age-verification and facial-recognition checks. The C1 also had a system that could be set to automatically lock when it was not being used or away from the phone to which it was linked.
Credit: Juul Labs
Juul Labs then launched the JUUL2, which had many of the same child safety features as the now discontinued C1. The JUUL2 also can recognize and authenticate proprietary JUUL2 pods when they’re attached, limiting the ability to use counterfeit pods or refill pods with other substances, such as THC.
Steven Yang, senior director of FEELM R&D, says that FEELM has incorporated designs into its products that prevent misuse by children, for example, by requiring the user to follow a specific sequence of procedures to activate the device.
“With a number of industry’s leading patents, FEELM is exploring ways to integrate Bluetooth, fingerprint, airflow switch, sensor and other electronic technologies to create a child lock on products,” he says, adding that many Chinese vaping industry leaders have already adopted ID verification and facial recognition technologies.
“FEELM’s strategic partner and China’s leading vape brand, RELX, has initiated Sunflower Systemin 2019. Based on AI and big data, the Sunflower System is integrated into different scenarios, such as RELX chain stores and the RELX app to prevent minors from purchasing vaping products,” explains Yang. “The Sunflower System has been extended to all RELX chain stores in China, to ensure each purchase order is traceable. Moreover, through big data and GPS, the Sunflower Systemcan automatically filter the addresses that do not meet the legal requirements of opening a vape store—for example, near schools.”
Project Sunflower consists of adopting ID and facial recognition technologies to ensure that only adults can purchase products in its China stores, according to RELX. Minors are not allowed to enter RELX stores, and in-store face-scanning cameras send alerts to RELX store staff if a suspected minor enters the store. Any suspected minor that is not able to present legal, valid ID proving his or her age is asked to leave the RELX store.
Upon purchasing a product, RELX customers also need to verify their age through a facial recognition process that matches the customer’s face with the photo on the customer’s Resident Identity Card,” says a RELX representative. “This process is to ensure that the person in the store is using their own valid identification and not attempting to impersonate an adult.”
While facial-recognition measures are widely used and accepted in China, they may encounter resistance elsewhere. Chris Howard, vice president, general counsel and chief compliance officer for E-Alternative Solutions, a U.S. based e-cigarette manufacturer, says that consumers have generally accepted biometric controls in phones, tablets and other devices that use fingerprints or faces to unlock the screens.
Those who are tech savvy would likely welcome such an alternative in their vaping products, he says. However, traditional cigarettes don’t have any electronic controls to prevent unlawful use, so if vaping regulations follow tobacco rules that would limit these types of innovations.
“The idea that such a requirement would be necessary for vapor products to receive marketing orders seems unlikely. It is important to remember that adult smokers may be unwilling to deal with an electronically locked tobacco product,” says Howard. “While some may enjoy the novelty, many may just use a tobacco product—likely higher risk—that is easier to use. Many questions surround the use of biometrics in products. There are legal privacy issues which would increase the cost of such devices.”
Manufacturers must also remain aware of regulatory restrictions in the markets they operate, according to Yang. FEELM has developed protocols to help retailers and distributors keep in compliance with local guidelines. Yang says the company attaches clear warning labels on its closed-system vaping devices and includes language in user manuals stating that the products are intended for use only by adults.
“We also focus to ensure that the retail stores in which our products are sold have mechanisms in place to verify the age of the consumers purchasing products manufactured by us so as to comply with local laws and regulations in relation to age restriction,” Yang says. “Moreover, our website and our major customers’ web stores require visitors to enter their age before entering the websites.”
Regulatory response
Taxation has long been the preferred deterrent to youth access by regulators. Studies suggest, however, that increasing taxes don’t always have the desired impact. Instead, these measures discourage combustible smokers from switching to a safer alternative, according to a study by Steve Pociask and Liam Sigaud for the American Consumer Institute, Center for Citizen Research. The researchers state, “overzealous or poorly designed restrictions [like tax increases] on vaping, combined with misleading information about e-cigarettes’ actual health risks, are deterring smokers from pursuing a potentially life-saving alternative.”
Tim Andrews, director of Consumer Issues for Americans for Tax Reform, says the evidence is clear that increasing taxes on reduced risk tobacco alternatives will do nothing to reduce youth access, but will punish adult vaping consumers, leading many back to deadly combustible cigarettes. He says one example is when the state of Minnesota imposed a tax on vaping products. It was determined that it prevented 32,400 additional adult smokers from quitting smoking, according to Andrews.
“Paradoxically, by creating a booming black market, which, by definition, possesses none of the rigorous age verification processes required by legal retailers, vapor taxes may increase not decrease youth access. This is similar to how evidence shows in states where cannabis is illegal, it is easier for high school students to purchase cannabis than beer. Increasing taxes on vaping will create a boon for smugglers—and will hurt everyone else,” he says. “Youth vaping has plummeted in recent years due to increased enforcement of existing law (according to the U.S. Centers for Disease Control and Prevention, only 3.1 percent of high school students vape daily). Adequate and appropriate enforcement of existing law—not increasing taxes—is what will continue to drive this number down.”
The recent Population Assessment of Tobacco and Health (PATH) study suggest Tobacco 21 laws are having the intended effect. Howard suggests that while limiting the minimum age of sale is seemingly effective, “it remains an open question as to whether any additional innovation is required, as additional time may show that youth access has been sufficiently curbed.”
Other innovative regulatory responses to youth vaping have had mixed results. Outside taxation and Tobacco 21 laws, any effectiveness seems hard to prove. Research suggests that there are few studies available that show what impact differing regulatory actions have on youth vaping. A study published in BMC Public Health, Policies that limit youth access and exposure to tobacco: a scientific neglect of the first stages of the policy process, examined 200 international peer-reviewed articles. The researchers found that scientific evidence on the policy process for youth-prevention initiatives were scarce.
“The processes influencing the adoption of youth access and exposure policies have been grossly understudied. A better understanding of the policy process is essential to understand country variations in tobacco control policy,” the researchers wrote. They then went on to suggest that “policymakers can adopt and implement various supply-side policies to limit youth access and exposure to tobacco, such as increasing the minimum age of sale, limiting the number or type of tobacco outlets, or banning the display of tobacco products.”
Credit: Balakley PB
Howard questions whether regulations limiting the number of tobacco outlets/vape shops or display bans would materially impact youth access. “Which companies should lose their business licenses? Should only major chains, with arguably more control over storefronts, be permitted to sell tobacco products?” Howard asks. “How will removal of businesses prevent youth from obtaining tobacco products? Yes, there will be less stores to find products, but that doesn’t mean youth vaping will decline. During the ‘youth vaping epidemic,’ Walmart, arguably the largest retail footprint in the U.S., removed vapor products from its stores—is there evidence of reduced youth vaping as a result? Finally, banning tobacco product displays may impact youth exposure to products, but would also reduce adult smokers’ exposure to different, potentially less harmful, products.”
Incentivizing success
There may be more innovative options to consider in controlling youth access. Another potential avenue to curb youth access may be to require manufacturers to offer incentives to retailers to maintain good practices. B2B sales discounts or incentives for meeting certain standards is likely to go a long way toward limiting youth access, according to Howard.
“Manufacturers can incentivize limiting the number of products in a transaction to prevent straw sales, passing compliance checks, tobacco sales training and participating in the We Card program to encourage retailers to ‘up their game’ in preventing youth access,” he says.
States are slowly becoming more innovative in their regulatory approach to youth vaping. Hawaii, for example, is considering the passage of a law that would require its Department of Health (DOH) to coordinate with its Department of Education (DOE) to establish a “take back” program for students to “voluntarily dispose of electronic smoking devices, flavored tobacco or synthetic nicotine products, and tobacco products in their possession.” If passed, the rules would also require DOH and DOE to coordinate quarterly meetings with students on addressing the youth vaping epidemic.
Many industry experts agree that the vaping industry, tobacco control community and regulators should be working together to solve the problem of youth uptake. However, that seems unlikely. It could be argued that the world’s most prominent regulator, the FDA’s Center for Tobacco Products (CTP), should be bringing stakeholders together to seek out common solutions to these problems. That hasn’t happened, according to Howard.
“It appears CTP felt compelled to use a club, as opposed to a scalpel, to excise youth vapor use. Banning flavored pods and blanket denials of millions of [premarket tobacco product applications] PMTAs for flavored products through sweeping [market denial orders] MDOs removed most industry stakeholders in just about a month,” says Howard. “While much of this was thrust upon CTP by outside forces, it is hard to imagine, when they can completely control the issue, why would CTP now resort to compromise solutions?
“CTP and the tobacco control lobby both detest those bad actors that market their products without regard to this important issue. Companies that actively follow the rules detest these bad actors, too. CTP, tobacco control and the ethical side of the industry should join forces to root these bad actors out.”
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.
For the third year in a row, an effort to ban flavored vaping products in Connecticut couldn’t muster enough support.
“We’re incredibly frustrated that the legislature can’t seem to get their priorities in order in a way that would protect kids, the way all of Connecticut’s neighbors already have,” said Kevin O’Flaherty, northeast advocacy director for the Campaign for Tobacco Free Kids. They “continue to support industry and industry profits instead of protecting kids.”
The flavor ban had early momentum in the General Assembly. The Public Health Committee approved the measure in March after hearing hours of testimony, according to CT Mirror.
Connecticut is one of few states in the region that has not adopted a prohibition on flavored e-cigarettes. New York, New Jersey and Rhode Island have barred the sale of flavored vaping products. Massachusetts banned all flavored tobacco items, including flavored cigars, cigarettes and vaping goods.
The state has attempted a ban twice before. The proposal was raised in 2020 as part of Gov. Ned Lamont’s budget but was unsuccessful. Lamont had recommended banning flavored vaping products and increasing the tax on all e-cigarette liquids.
Last year, a bill barring the sale of flavored cigarettes, tobacco products and e-cigarettes was watered down and then shelved. A version of the plan was also added to the state budget implementer but was scrapped.
This year’s version only targeted the sale of flavored vaping products (not flavored cigarettes or cigars). But it still ran into opposition. E-cigarette makers, store owners and people who say that vaping is an important alternative for those who are quitting smoking testified against the bill.
After months of debates and amending, Colorado’s House passed a ban on flavored vaping and other tobacco products this week. The bill passed 35-27 on Wednesday after the appropriations committee approved it earlier in the day on a 7-4 vote.
That ban will not apply to the sale of premium cigars after they were given an exemption during the debate process, as was pipe tobacco and hookah products.
The bill now goes to the state Senate. Even with the session end looming, one of its co-sponsors, state Sen. Rhonda Fields said she was optimistic, according to Colorado Public Radio.
“You know, it looks great. It’s on its way to the Senate, and then we’ll make sure it goes through all the appropriate committees and I’m looking forward to debating it,” said Fields.
Opponents say a ban would hurt convenience stores and vape shops and have argued the issue is one of personal choice.
For Fields, she said it’s about the toll tobacco consumption, driven by attractive flavors like menthol, has taken on the community.
“It started back in the ’60s, (the brand) Kool Cigarettes, all these menthol flavors,” she said. “The industry has now put flavors into vaping, into cigarettes to make it more attractive for young people to start smoking early.”
The measure, HB22-1064, bans retailers of cigarettes, tobacco or nicotine products from selling or marketing any flavored product. Those are defined as products “imparting a taste or smell other than the taste or smell of tobacco.”
Having survived a rollercoaster legislative session that saw the bill near death on multiple occasions, Hawaii’s ban on flavored e-cigarettes now land’s on the governor’s desk. Many industry experts say he may veto the controversial legislation.
The ban, which takes effect after the new year, outlaws the sale of nearly all flavored tobacco products in Hawaii stores, including menthol cigarettes and flavored cigars, according to Civil Beat. The primary target of the measure, however, are flavored e-cigarettes most popular with middle and high school students.
After a contentious debate Tuesday, House Bill 1570 passed its final reading in the state House of Representatives with 36 voting in favor and 15 in opposition, reflecting division among public health advocates and other supporters who turned their backs on the measure they helped write.
At issue was a Senate amendment that would exempt from the ban certain tobacco products that had received federal Food and Drug Administration approval.
It is a major loss for Hawaii’s legal vaping industry, which has campaigned vigorously against a prohibition on the products that form their livelihood.
“[About] 99.9 percent of everything that our industry sells to adult consumers, legally with age verification, is flavored products,” said Scott Rasak, chief operating officer of Volcano, a vape shop chain with 16 locations across the state. “We’re talking about hundreds of businesses, thousands of jobs.”
Vape shop owners argue that a tobacco ban will force kids onto the black market. Public health activists, however, have long advocated for cutting flavored vapes off at the source.
Hawaii’s vaping industry will challenge the ban’s legality in court, Volcano’s Rasak vowed.
The bill might also receive pushback from Gov. David Ige, who introduced a similar flavor ban to the Senate this year but has yet to reveal his stance on HB 1570 in its current form.
“I think that the governor might veto the bill,” Matayoshi said in an interview after the vote. “It really depends on the census of the (public health) community.”
The Bangor City Council plans to repeal an ordinance that would have implemented a ban on flavored tobacco sales in the city.
Bangor initially approved the ban back in October. It was set to go into effect June 1, but during a meeting on Monday, city officials said they did not give businesses enough warning about the new law.
City officials were required to give businesses at least 30-days’ notice, which they reported did not happen, according to News Center Maine. Because of that, officials said the ban would be difficult to enforce and could even open the city up to possible lawsuits. The city council was not sure why the notice never happened.
Councilors can still pass a new ordinance in the future. Bangor was the first community in Maine to approve a ban on flavored tobacco. Portland and Brunswick also have bans that are set to start June 1.
A proposal for a statewide ban on flavored tobacco is still working its way through the Maine Legislature.
The attitude and actions of the next director-general of health will be key to New Zealand achieving its smokefree ambitions, says the Coalition of Asia Pacific Tobacco Harm Reduction Advocates (CAPHRA).
“This person could make or break Smokefree 2025. He or she advises the government, oversees regulation, and has the final say on new vape store licences. It’s an incredibly important position when it comes to New Zealand effectively addressing tobacco,” says Nancy Loucas, executive coordinator of the Coalition of Asia Pacific Tobacco Harm Advocates (CAPHRA).
Current Director-General of Health Ashley Bloomfield will leave the job in July, with his successor yet to be appointed.
Loucas says that while New Zealand’s Smokefree Environments and Regulated Products (Vaping) Amendment Act 2020 is viewed internationally as relatively progressive, there are some provisions that the next director-general should review.
“The act claims to strike a balance between ensuring vaping products are available to adult smokers while protecting young people. Sanctioning it as an R18 product has helped achieve that. However, banning the most popular flavours from general retail is only stopping adult smokers from quitting deadly tobacco,” she says.
Since August 11, 2021, general retailers such as supermarkets, service stations and convenience stores have been limited to just selling three flavors–mint, menthol and tobacco. Only licenced specialist vape stores can sell a full range of more popular flavours.
“The next Director-General of Health must review this restriction on general retail. By the time he or she takes office, the flavor ban would have run a year and many of us strongly believe it’s hindering not helping New Zealand achieve Smokefree 2025.
“Adult smokers desperate to quit can go to a supermarket and choose any brand of cigarette under the sun, yet they can only choose from three vape flavors. That’s not enabling them to make the best decision for their health nor is it helping New Zealand reduce its smoking rate,” says Loucas.
This person could make or break Smokefree 2025. He or she advises the government, oversees regulation, and has the final say on new vape store licences. It’s an incredibly important position when it comes to New Zealand effectively addressing tobacco.
With youth smoking at a historic low and 9.4 percent of adults now daily smoking, New Zealand’s goal of Smokefree 2025—where 5 percent or less of the general population smoke—is looking increasingly likely to be achieved.
CAPHRA says overall Bloomfield has been a supporter of New Zealand’s Tobacco Harm Reduction public health strategy. This has included approving and promoting messages on the ministry of health’s Vaping Facts website, which headlines “vaping is less harmful than smoking”—an approach that has been heavily supported across New Zealand’s health sector.
At the time, CAPHRA and other THR advocates raised concerns that vaping—a 95 percent less harmful alternative and New Zealand’s most effective smoking cessation tool—is largely absent from the government’s reinvigorated approach to stamping out smoking.
“The smokefree action plan makes tobacco less available and less appealing. It fails, however, to fully acknowledge the positive role vaping has played, and will play, in getting Kiwis off the cancer sticks. That’s a worry because we won’t get there without safer nicotine products,” she says.
CAPHRA says top of mind for the next director-general of health is that fact that over 5,000 Kiwis continue to die from smoking-related illnesses every year, and the job to reduce that is by no means done.
“The next director-general of health will need to keep a close eye on whether the government’s vaping regulations and Smokefree Aotearoa 2025 Action Plan are in fact delivering on their promise. With so many lives at stake, he or she will have no time to waste,” says Nancy Loucas.
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
