Californians voted to ban flavored tobacco, but Supreme Court may have final say

Election 2022 California Flavored Tobacco
Menthol cigarettes and other tobacco products are displayed at a store in San Francisco on May 17, 2018. R.J. Reynolds Tobacco Co. and Philip Morris USA are underwriting an effort to repeal the state’s ban on flavored tobacco sales. (AP Photo/Jeff Chiu, File) Jeff Chiu/AP

Californians voted to ban flavored tobacco, but Supreme Court may have final say

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California overwhelmingly voted on Tuesday to ban the sale of most flavored tobacco products, including menthol cigarettes and fruit-flavored vaping liquids, but court challenges from tobacco companies aiming to toss out the law could leave it up to the Supreme Court to have the final say.

R.J. Reynolds and other tobacco companies filed a lawsuit in court on Wednesday against the state of California, arguing that, under the Family Smoking Prevention and Tobacco Control Act, the ban infringes on the federal government’s ability to regulate the tobacco industry.

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The Family Smoking Prevention and Tobacco Control Act, which was signed in 2009 by then-President Barack Obama, gave the Food and Drug Administration the authority to regulate the manufacturing, marketing, and sale of tobacco products, aiming to curb tobacco-related illnesses and death.

In their lawsuit, the tobacco companies claim that states and localities have the ability to oversee tobacco sales, but not ban the sale or use of them.

R.J. Reynolds, one of the largest tobacco companies in the country, previously filed a court challenge against a similar ban on flavored tobacco products in Los Angeles using the same argument. That suit was dismissed by a lower court, a decision that the Ninth Circuit Court of Appeals upheld in March 2022.

“The TCA explicitly preserves local authority to enact more stringent regulations than the TCA,” Circuit Judge Lawrence VanDyke wrote in his majority opinion.

R.J. Reynolds asked the Supreme Court last month to take up the case, but no justices have indicated yet whether it will.

The companies are fighting an uphill battle in the state to continue selling flavored tobacco products that studies have shown are popular, particularly with young adults and youth. Over 100 localities in California have restrictions in place for the products.

Massachusetts, New York, New Jersey, and Rhode Island also ban the sale of flavored tobacco products.

Anti-tobacco advocates have been pushing the federal government to take action on the issue, pointing to its popularity among young people.

“The message from this vote is unmistakable: It’s time for policymakers at every level to stop the tobacco industry from using flavored, nicotine-loaded products to addict another generation of kids,” said Matthew Myers, president of the Campaign for Tobacco-Free Kids, which supported the California proposal.

The 2022 National Youth Tobacco Survey released last month showed 14.1% of high school students and 3.3% of middle school students had used an e-cigarette at least once over the past 30 days.

Earlier this year, the FDA proposed a rule that, if finalized, would prohibit menthol cigarettes and flavored cigars. The agency already banned flavored cartridges used in vaping devices in 2020, though tobacco companies quickly turned to manufacturing menthol vapes or synthetic nicotine products.

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Tobacco companies have pushed back on regulations that would cut their profits, arguing that they have put safeguards in place to make sure they don’t fall into the hands of minors, such as training retailers on verifying the legal age of customers.

© 2022 Washington Examiner

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