Supreme Court denies tobacco industries’ appeal

On Nov. 8, 2022, California voters approved Proposition 31, a referendum on the 2020 law that would prohibit the retail sale of certain flavored tobacco products.

Less than three weeks later, attorneys for R.J. Reynolds Tobacco Company, R.J. Reynolds Vapor Company and other Reynolds tobacco subsidiaries filed an emergency lawsuit in the U.S. Supreme Court requesting that the proposition and its enforcement of Senate Bill 793 be enjoined.

Statewide, more than 63% of voters approved the proposition and even in Riverside County, 55% voters cast “Yes” ballots. But Reynolds was undeterred and filed its appeal to the Supreme Court on Nov. 29.

This week, the U.S. Supreme Court denied the appeal.

Reynolds’ attorneys argued that the Tobacco Control Act (Public Law 111-31, approved in June 2009) prohibits state and local jurisdictions from setting standards for tobacco products that are different from the federal standards. And at present, the federal government has not banned these flavored tobacco products.

Neither a district court nor the Ninth Appeals Court enjoined the enforcement of SB 793, which is why Reynolds appealed to the Supreme Court. And the Ninth Circuit of the U.S. Appeals Court has been overturned in previous cases relating to this law.

In their filing, Reynolds’ attorneys stated, “This request arises from the Ninth Circuit’s decision to effectively ignore the Tobacco Control Act’s express-preemption provision and permit states to completely prohibit the sale of flavored tobacco products for failing to meet state ‘tobacco product standards.’ Absent immediate judicial intervention, Applicants will suffer irreparable harm because they will be unable to sell their products in one of the Nation’s largest markets.”

In response, California’s Department of Justice told the court that Reynolds is more concerned about those who won’t be able to buy the flavored products than the millions of young children and teens who become smokers after using these products. The state noted that Reynolds’s study contradicting this point was prepared by one of its affiliates rather than independently.

With respect to implementing SB 793, the state argued, “The unsuccessful referendum campaign has already delayed the implementation of SB 793 for nearly two years, allowing children and teenagers across the State to be initiated into the deadly habit of tobacco use via flavored tobacco products throughout that period. The voters have now spoken, rejecting the tobacco industry’s policy arguments and approving the ban on retail sales of flavored tobacco products … tips the balance decisively in favor of allowing the will of the voters to take effect now.”

Without comment and no objections, the Supreme Court rejected Reynolds’s appeal with a single sentence, “The application for a writ of injunction pending appeal presented to Justice Kagan and by her referred to the Court is denied.”

After the Supreme Court decision, California Attorney General Rob Bonta said in a press release, “Flavored tobacco products have hooked a new generation of young smokers at a time when tobacco is already the number one preventable killer in the United States. I applaud the Supreme Court for denying Big Tobacco’s latest attempt to block California’s commonsense ban on flavored tobacco products. The voters of California approved this ban by an overwhelming margin in the November election and now it will finally take effect. I look forward to continuing to defend this important law against any further legal challenges.”