The Supreme Court has been urged by R.J. Reynolds and the other plaintiffs opposing the state of California's prohibition on flavored vapes and tobacco products to give an injunction that would keep the ban in place while the case is being adjudicated. Voters in California approved the ban on November 8 and it is scheduled to go into force in December.
On Tuesday, the Supreme Court application was submitted. Previously, the Ninth Circuit Court of Appeals had turned down an appeal of the district court ruling after the District Court for the Southern District of California had rejected applications for both a temporary injunction and an injunction pending appeal. (The Supreme Court's application for an injunction and the rulings of the subordinate courts are available on the docket.)
The district court case will continue regardless of the Supreme Court's decision regarding the requested injunction.
The American Snuff Company, LLC, Santa Fe Natural Tobacco Company, Inc., R.J. Reynolds Tobacco Company, R.J. Reynolds Vapor Company, Modoral Brands Inc., Neighborhood Market Association, Inc., and Morija, LLC (Vapin' the 619) are the plaintiffs in the complaint. (Every plaintiff, with the exception of the final two, is a subsidiary of Reynolds American Inc., which is a company owned by British American Tobacco.)
The question is whether the state's ban on the sale of flavored products amounts to a de facto product standard, which Reynolds claims is a violation of the federal authority that the FDA was given under the Tobacco Control Act. Reynolds refers to earlier decisions in separate instances, in which the Supreme Court ruled that states may not use the term "sales ban" to conceal their desire to impose restrictions on their products. Federal law supersedes local and state legislation.
In 2020, the same plaintiffs filed an unsuccessful lawsuit against Los Angeles County on the same grounds, and the Ninth Circuit dismissed their appeal. The Supreme Court is also considering that issue and may rule as early as December 2 on whether to hear arguments in it.
Gregory Conley of the American Vapor Manufacturers Association (AVM) believes that conservative Supreme Court justices may take notice of the reasoning presented by a Ninth Circuit judge in his dissent in the Los Angeles County case.
Conley told Vaping, "Judge Ryan D. Nelson wrote a succinct and insightful dissent in the Los Angeles case that may prove appealing to five or more justices." It is difficult to comprehend how a legislation that specifies what ingredients a product may and cannot have is not a "product standard" strictly from a legal standpoint. Congress did not grant states unrestricted authority simply by allowing them to control the sale and distribution of tobacco goods." AVM has supported the litigation against the state by submitting an amicus brief to the court.
The high court's stance on those matters may determine the outcome of the Los Angeles County lawsuit as well as whether or not an injunction is granted at this time in the statewide case.
