Over the last few years, safety officials and health advocates around the country have been raising the alarm about flavored tobacco. Advocates argue products such as flavored vape pens and mini-cigars are not-so-secretly marketed toward children. California is one of several states that has enacted bans on the sale of such products. Tobacco makers, e-cigarette makers, and other tobacco industry players have challenged the laws in court, claiming state and local entities lack the authority to regulate tobacco. The Supreme Court may soon be called to render a decision on the matter.

In 2020, the State of California enacted a ban on the sale of most flavored tobacco products. The law banned the sale of certain flavored tobacco products in stores and vending machines, with exceptions for hookah, loose-leaf tobacco, and premium cigars. Implementation of the law was delayed as the tobacco industry successfully placed a referendum on the November 2022 ballot, which would allow voters to decide whether the law should be upheld and put into force. California voters responded by voting overwhelmingly in favor of the ban.

A similar ban was already enacted in Los Angeles. In 2019, L.A. County’s Board of Supervisors voted unanimously to ban the sale of flavored tobacco products. The law prohibited the sale of flavored tobacco products including, cigars, e-cigarettes, chewing tobacco, and menthol cigarettes, but did not set out to punish users. A similar law passed by the LA City Council and signed by Mayor Garcetti in June 2022 would end the sale of flavored cigars, e-cigarettes, and menthol cigarettes in the city. The law goes into effect on January 1, 2023.

The laws have faced a number of legal challenges. Well before the November 2022 statewide referendum was approved, tobacco giant R.J. Reynolds and other tobacco makers were engaged in a legal battle over the L.A. County ban. The tobacco companies argued that L.A. County lacked authority to regulate the sale of tobacco products because such authority was reserved to the federal government per the Family Smoking Prevention and Tobacco Control Act (TCA). A federal appeals court recently disagreed.

On March 18, 2022, the Ninth Circuit Court of Appeals upheld the trial court’s dismissal of the tobacco companies’ legal challenge to the flavored tobacco ban. The court held that while the TCA does regulate tobacco standards at the federal level, it does not prohibit state or local authorities from regulating the sale of tobacco products, including a ban on some or all tobacco sales. State and local authorities cannot enact contradictory laws, nor can they enact regulations concerning labeling, manufacturing and other enumerated matters concerning tobacco. Per an explicit “preservation clause” in the TCA they can, however, enact regulations concerning the “sale, distribution, possession” of tobacco products.

The lone dissenting judge, a Donald Trump appointee, contended that regulating the flavor of tobacco products constitutes setting a “tobacco product standard.” Per the judge, such product standards are within the exclusive purview of the federal tobacco law.

R.J. Reynolds and others have filed similar challenges to California’s statewide ban and similar laws in other jurisdictions. The companies have also sought a review of the Ninth Circuit decision by the U.S. Supreme Court. The challenge to the statewide ban will likely founder based on the Ninth Circuit’s clear holding unless the Supreme Court thinks otherwise and decides to take up the matter.