Like clockwork the Big Tobacco (RJ Reynolds and others) sued California to block implementation of the state’s ban on the sale of flavored tobacco products (Proposition 31).
This is not surprising since the tobacco companies have a long history of filing unsuccessful lawsuits to scare local and state governments and slow things down. Unlike normal plaintiffs, they don’t just file suits they expect to win.
While not a lawyer, I would be surprised if this case goes anywhere. Senator Jerry Hill, who carried the flavor ban in the state legislature was well-aware that the tobacco companies would sue and carefully wrote the law to make it defensible in court. (Tobacco companies have sued over many other similar laws around the country and consistently filed in court.)
They most important fact is that, while granting FDA sole authority to regulate the content of tobacco products, Congress specifically empowered states and localities to pass laws regulating the sale of tobacco products.
Reynolds and its fellow plaintiffs also invokes the Constitution’s prohibitions on states interfering with interstate commence, writing, “The dormant Commerce Clause prohibits California from enforcing a law that ‘regulates or discriminates against interstate commerce, or when its effect is to favor in-state economic interests over out-of-state interests.'” The important point here is that California did not implement the flavor ban to protect its economic interests by, for example, allowing in-state sale of flavored tobacco products while prohibiting the sale of out-of-state tobacco products. It implemented the flavor ban to protect health interests of its residents by prohibiting the sale of flavored tobacco products regardless of where they were manufactured.
But, like the referendum itself, if RJ Reynolds and others can delay implementation of the law, it can keep making money selling it menthol cigarettes and other flavored products.
The immediate short-term concern is if Reynolds succeeds in getting an injunction delaying enforcement of the law while the lawsuit drags on. They would argue that the law will cause them “Irreparable injury.”
To counter this argument, I hope California Attorney General Rob Bonta argues that any delay would cause irreparable harm to the people of California, especially kids who will start using tobacco because of flavors.
Reynolds may be hoping that the MAGA Supreme Court will rescue them, but I doubt that even this court will want to rescue the tobacco companies given how clear Congress was in saying states and localities are empowered to pass such laws.
The FDA’s analysis of the effects of its proposed product standard banning menthol cigarettes provides a measure of the damage done by any delay. FDA estimated that every month delay in implementing the ban would result in an additional 29,403 new cigarette smokers and at least an additional 1,362 premature deaths in future years.
California has about 13% of the total US population, so, using the FDA estimates, every year of delay in implementing the California state flavored tobacco sales ban would mean 3800 more cigarette smokers and 180 additional premature deaths.
And, that’s just for cigarettes. There would be additional addicted kids and premature deaths from e-cigarettes, little cigars and other tobacco products.
Let’s hope the courts quickly dismiss this frivolous lawsuit.
The case is R. J. Reynolds Tobacco Company et al v. Bonta et al, Docket No. 3:22-cv-01755 (S.D. Cal. Nov 09, 2022), Court Docket.
Stanton Glantz blog 