R.J. Reynolds Tobacco Co. v. County of Los Angeles, No. 20-55930 (9th Cir. 2022)
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The Ninth Circuit affirmed the district court's dismissal of an action brought against tobacco companies, alleging that the Family Smoking Prevention and Tobacco Control Act (TCA) preempts the County of Los Angeles's ban on the sale of all flavored tobacco products. The panel explained that the TCA's unique tripartite preemption structure governs its analysis of these issues. The TCA's text, framework, and historical context reveal that it carefully balances federal and local power by carving out the federal government's sole authority to establish the standards for tobacco products, while preserving state, local, and tribal authority to regulate or ban altogether sales of some or all tobacco products.
The panel held that the TCA does not expressly preempt the County's sales ban. In this case, the preemption clause does not cover the County's sales ban, and in the alternative, the savings clause saves the County's sales ban from preemption. Furthermore, given that Congress explicitly preserved local authority to enact the very type of sales ban at issue here, the panel concluded that the TCA does not impliedly preempt the sales ban.
Court Description: Preemption / Tobacco Control Act. The panel affirmed the district court’s dismissal of an action brought by tobacco companies, alleging that the Family Smoking Prevention and Tobacco Control Act (“TCA”) preempts the County of Los Angeles’s ban on the sale of all flavored tobacco products. The panel held that the TCA authorizes the Food and Drug Administration to regulate tobacco products and expressly preempts some contrary state or local regulations, while also expressly preserving and saving from preemption other state and local regulatory authority over tobacco. The panel held that the TCA’s text, framework, and historical context reveal that it carefully balances federal and local power by carving out the federal government’s sole authority to establish the standards for tobacco products, while preserving state, local, and tribal authority to regulate or ban altogether sales of some or all tobacco products. * The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES 3 The panel wrote that the TCA’s “unique tripartite preemption structure” governed its analysis. The TCA includes a “preservation clause,” which preserves state, local, and tribal power to enact any regulation concerning tobacco products that is “in addition to or more stringent” than those promulgated by the TCA. The TCA’s preemption clause reads as follows: “No . . . political subdivision of a State may establish or continue in effect with respect to a tobacco product any requirement which is different from, or in addition to, any requirement under the provisions of [the TCA] relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products.” An immediately following savings clause instructs that the preemption clause “does not apply to requirements relating to the sale, distribution, possession, information reporting to the State, exposure to, access to, the advertising and promotion of, or use of, tobacco products by individuals of any age, or relating to fire safety standards for tobacco products." The panel held that, properly understood, the TCA’s preemption clause does not preclude non-federal sales regulations such as the County’s sales ban. But even if it did, the County’s sales ban would nonetheless be exempted from preemption because it falls within that clause’s text as an allowed local requirement relating to the sale of tobacco products. Either way, the TCA does not expressly preempt the County’s sales ban. The panel also held that, because the TCA explicitly preserves local authority to enact more stringent regulations than the TCA, the County’s sales ban does not pose an impermissible obstacle to the TCA’s purposes or objectives regarding flavored tobacco. Accordingly, the County’s sales ban is neither expressly nor impliedly preempted. 4 R.J. REYNOLDS TOBACCO CO. V. CNTY. OF LOS ANGELES Dissenting, Judge R. Nelson wrote that because Los Angeles’s ban falls within the TCA’s preemption clause and is neither preserved nor saved, he would hold that it is expressly preempted. Judge R. Nelson wrote that the ban fell within the preemption clause because it was a requirement different from or in addition to any TCA requirement relating to tobacco product standards, which can relate both to manufacturing and to sales. Judge R. Nelson wrote that, by its terms, the preservation clause does not apply to the preemption clause, but rather clarifies that no other provision of the statute has any preemptive effect and that the authorities of federal agencies and Indian tribes are not preempted by the TCA. Finally, Judge R. Nelson would hold that the savings clause only saves for states the authority to enact age requirements.
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