Vapes and e-cigarettes. They come in lots of kid-friendly flavors like Blue Razz, Pegasus Milk and Menthol Freeze. They hide the dangers of tobacco while they poison the brains of teens. Los Angeles County is one of over a hundred California localities to ban their sale. Big Tobacco fought the ban by filing a lawsuit that argued a federal law preempts it. They lost.

In a 2-1 decision by the United States Court of Appeals for the Ninth Circuit on March 18, Judge Lawrence Van Dyke authored an opinion that affirms the dismissal of the California District Court’s decision that federal law does not preempt LA County’s ban on all flavored tobacco products. He wrote that while the Family Smoking Prevention and Tobacco Control Act (TCA), exempts some local regulations, it also preserves those that allow localities to ban or regulate “sales of some or all tobacco products.” Judge Ryan D. Nelson dissented.

Circuit Judge Van Dyke began his opinion with a historical discussion of tobacco regulation. He explained that the Supreme Court recognized the need for Congressional oversight back in 1900 due to public health concerns about cigarettes. Congress subsequently enacted laws that provided education and required cautionary labeling. None of these laws, he said, preempted “state and localities’ traditional power to restrict or ban sales of tobacco products.” Many state laws followed, such as the prohibition of cigarette vending machines near schools, or even total bans on retail sales.

State regulation dominated cigarette sales until the federal government’s Food and Drug Administration (FDA) began to “exert federal authority” in the late 1990s. That ended when the U.S. Supreme Court ruled that current law did not give the FDA the right to do so. Congress responded by passing the TCA in 2009.

The new law, however, did not clearly designate jurisdictional boundaries. Instead, it created a “unique tripartite preemption structure” that the Ninth Circuit had to analyze when writing its opinion. Van Dyke wrote that “TCA’s preemption clause does not preclude non-federal sales regulation…such as the County’s sales ban challenged in this case.” Furthermore, he said the ban would still be exempt because TCA’s “sales clause” contains “an explicit decision to preserve for the states a robust role in regulating, and even banning, sales of tobacco products.”

The FDA can “set national standards” about the manufacture, ingredients, and labeling of tobacco products. but the TCA “broadly preserved” local government power to “enact any regulation…that is in addition to or more stringent than those promulgated by the TCA.” It contains language that gives states the right to prohibit the sale of tobacco products “to individuals of any age,” Van Dyke wrote.

Given this authority, LA County enacted a ban on the sale of flavored products in September 2019. Its ban is not unique, as over 300 jurisdictions across the country have enacted similar bans. The county law describes the banned products as those that “impart a characterizing flavor…taste or aroma” that is not found in regular tobacco.

After the ban was enacted, R.J Reynolds, the manufacturer of Camel, Kent, Lucky Strike, Newport, and Pall Mall cigarettes, among others; the American Snuff Company, which describes itself on its website as “the second-largest smokeless tobacco products manufacturer in the U.S.” and a subsidiary of publicly traded Reynolds America Inc.; and Santa Fe Natural Tobacco Company, Inc., another subsidiary of R.J. Reynolds, sued the County of Los Angeles. The tobacco company plaintiffs initially asked the District Court for a temporary injunction on the ban. It was denied because they were “unlikely to succeed on the merits of their claims.” Their motion for summary judgment suffered the same fate. They appealed to the Ninth Circuit.

Van Dyke continued to explain the appellate court’s decision that ruled that the TCA “does not expressly preempt the County’s sales ban.” It stressed how Congress “explicitly preserved local authority to enact the very type of sales ban at issue here…” He again differentiated between the FDA’s authority to “set product standards” and its lack of authority to regulate sales. He stressed that Federal preemption covers only production and marketing – but not sales. He also clarified that “the prohibition of tobacco product sales fall squarely within the purview of states, localities, and tribal entities.” He reiterated that the two clauses in the TCA reach “a fair balance of power” between state and federal authority, as Congress has intended.

He went on to dismiss all of the appellants’ arguments to the contrary because “bans” are clearly not “standards.” He distinguished Supreme Court holdings in cases involving meat inspection and clean air. In essence, he concluded that the County’s sales ban is “neither expressly nor impliedly preempted.”

The dissent by Justice Ryan D. Nelson argues that the TCA’s preemption clause does not allow the County’s ban, and the saving clause only gives states the authority to enact age restrictions.

The website of the advocacy group Campaign for Tobacco-Free Kids (CTFK) provides information that supports the Ninth Circuit’s decision. It states, “The tobacco industry has a long history of targeting kids with flavored products, and the evidence is clear that flavors play a key role in youth initiation and continued use of tobacco products.”

Statistics support the need for a ban on flavored tobacco. CTFK reports that the 2021 National Youth Tobacco Survey found 11.3% of high school students and 2.8% of middle school students – over 2 million kids altogether – are current e-cigarette users. LA County’s new law could help reverse the latest moves by Big Tobacco to hook kids on nicotine by injecting yummy flavors into their cigarettes while their brains are still too young to protect them.