A flavor ban for vaping and tobacco products passed by the Los Angeles city council in early June by a 12-0 vote, is scheduled to go into effect on Jan. 1, 2023, after it was signed by Mayor Eric Garcetti on Monday.
While the law could face legal challenges before its effective date arrives, it could also come after a statewide ban on the sale of flavored tobacco might be in place, as voters will decide the matter as part of the November election.
If voters approve a statewide ban, it could be in effect as early as Dec. 8. Flavored shisha tobacco sold in existing hookah lounges that have their own ventilation system are expemt.
Premium cigars did not receive any exemption in the city’s ban, nor did any products that use menthol. The ordinance does not prohibit the possession or use of flavored tobacco products.
The ban that California’s voters will decide includes an exemption for both shisha tobacco as well as large flavored cigars, though in order to be exempt these cigars would need to have a wholesale price of at least $12, meaning they would retail for around $37 given California’s high tax rate on cigars, according to Halfwheel.
Flavored vaping products will be banned in Los Angeles effective Jan. 1, 2023, though it could happen by December 2022.
The Los Angeles City Council voted 12-0 in favor of the ban, which bans the sale of all flavored tobacco products except flavored shisha tobacco. The exemption is quit specific and will allow flavored shisha tobacco to be sold in hookah lounges that have their own ventilation system.
There is no exemption for flavored cigars of any kind. While the law bans the sale of flavored tobacco products, there’s no ban on the possession of these products by consumers, according to Charlie Minato at Halfwheel.
Credit: Sean Pavone Photo
Los Angeles’ ban will go into effect Jan. 1 barring any legal setbacks, though there’s a chance that state law could change as early as Dec. 8.
In 2020, a bill was signed into law that banned flavored tobacco products in the entire state of California, though due to California’s unique direct government process, that law must survive a ballot referendum this November. If a majority of voters support the flavored vape/tobacco ban—technically, the ballot referendum will ask if they want to rollback the law—then flavored tobacco sales could be outlawed as early as Dec. 8, 2022.
The legislation will now move to Mayor Eric Garcetti, who is expected to sign it, according to Filter.
California’s state law includes an exemption for both shisha tobacco as well as large flavored cigars. However, in order to be exempt, the cigars would need to have a wholesale price of at least $12, meaning they would retail for around $37 given California’s high tax rate on cigars.
The Los Angeles County Board of Supervisors—a separate government that can govern the non-chartered areas of Los Angeles County—passed a ban on flavored tobacco products in 2019. That law has been subject to legal challenges, some of which have been dependent on the outcome of the state law.
In April, the U.S. Food & Drug Administration announced it was moving forward with plans to ban flavored cigars throughout the U.S.
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
Vapers in Los Angeles, California may no longer purchase flavored vaping products. The L.A. city council unanimously voted to ask city attorneys Wednesday to start drafting a bill banning businesses from selling many flavored vaping and tobacco products. The council has said the move was meant to stop teens from getting hooked on nicotine.
Credit: Tierney
A coalition of youth and public health advocates backing the ban argued that flavored products have lured more teens to use tobacco, including by vaping with electronic cigarettes. The council decided against considering an exemption for menthol.
No one from the vaping industry argued against the proposed bill. Hookah lounges, however, may have been spared after arguing the law could destroy a cherished tradition among Armenians, Arabs and other communities in which hookah has been a centerpiece of gatherings and celebrations.
The last time the issue was heard at City Hall over a year ago, council members suggested allowing some sales of flavored tobacco for consumption on site at lounges, but hookah sellers said the plan was too restrictive and would not allow lounges to be passed down to future generations, according to the L.A. Times. Nor would it allow people to buy hookah tobacco to smoke at home.
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.
Los Angeles City Council voted unanimously Wednesday to make numerous changes to its once-flourishing marijuana market. The legislative body gave its initial approval to expand licensing and get more assistance to operators who endured the consequences of the nation’s war on drugs.
Broad legal sales kicked off in California in 2018, and at that time Los Angeles was expected to quickly establish itself as a world-leading cannabis economy, according to an article from the Associated Press. “But that never happened. Instead, robust illegal sales continue to outpace the up-and-down legal market, while businesses complain that hefty taxes and a cumbersome bureaucracy have slowed, rather than encouraged, growth,” the article states.
The new revisions are designed to provide a jump in licenses for so-called “social-equity” applicants. These include individuals, many of color, who were arrested or convicted of a marijuana-related offense, and lower-income residents who live, or have lived, in neighborhoods marked by high marijuana arrest rates.
Only applicants meeting those criteria would be eligible for new retail and delivery licenses through 2025.
The council also seeks to help businesses wanting licenses to quickly get temporary approval to begin operating once certain benchmarks are met. The rules would permit businesses to relocate while being licensed and streamline the application process, according to the article.
Credit: Manish Panghal
If the plan gets final approval by the council, Mayor Eric Garcetti is expected to sign it.
“This is a great opportunity for the city to focus on the expansion of the cannabis industry,” said dispensary owner Jerred Kiloh, who heads the United Cannabis Business Association, a Los Angeles-based industry group, according to the AP article.
Kiloh said the city is on target to eventually double the number of retail businesses, up from 187 now operating. In time, rules allow for as many as 537 dispensaries, he added, though there are also restrictions that limit the number of businesses that can operate in neighborhoods, according to the article.
More legal shops, linked with tougher enforcement, would help in the long-running fight to shut down illicit operators and delivery services that run in plain sight in the city, he added.
But the plan has also been criticized within the industry, with some saying the legal market remains flawed and could get worse.
A new Los Angeles County ordinance that prevents the sale of flavored tobacco products is being challenged in court by vape shop owners.
On May 4, CA Smoke & Vape Association and Ace Smoke Shop filed a federal lawsuit against the rule that also requires businesses to obtain two additional licenses and imposes new tobacco product standards according to legalnewsline.com, the “great majority” of vapor products and devices will be prohibited, the lawsuit says. It complains that products containing THC are exempted, even though it is “the primary source linked to the outbreak” of recent illnesses, the lawsuit states.
“Similarly, the ordinance makes no distinction between the black-market vaping products at the center of that outbreak and the FDA-regulated products produced by legitimate manufacturers,” the lawsuit states. “Instead, the ordinance implements a blanket prohibition on the sale of flavored tobacco products to all persons, threatening to destroy an entire industry and the livelihoods of Los Angeles County residents.”
The plaintiffs in U.S. District Court for the Central District of California case number 2:20-cv-04065 are represented by Jawlakian Law Group.
