Neighborhood Mkt. Ass'n, Inc. v. Cnty. of San Diego

• Decision Date: 29 March 2021
• Docket Number: Case No.: 20-CV-1124 JLS (WVG)
• Citation: 529 F.Supp.3d 1123
• Parties: NEIGHBORHOOD MARKET ASSOCIATION, INC., and Vapin’ the 619, Plaintiffs, v. COUNTY OF SAN DIEGO, Defendant.
• Court: U.S. District Court — Southern District of California

529 F.Supp.3d 1123

NEIGHBORHOOD MARKET ASSOCIATION, INC., and Vapin’ the 619, Plaintiffs,

v.COUNTY OF SAN DIEGO, Defendant.

Case No.: 20-CV-1124 JLS (WVG)

United States District Court, S.D. California.

Signed March 29, 2021

George K. Jawlakian, Jawlakian Law Group, Encino, CA, for Plaintiffs.

Joshua Michael Heinlein, Timothy M. White, Office of County Counsel, San Diego, CA, for Defendant.

ORDER (1) DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND (2) GRANTING DEFENDANT'S MOTION TO DISMISS

(ECF Nos. 4, 12)

Janis L. Sammartino, United States District Judge

This Order addresses the constitutionality of a county ordinance that permanently bans the sale of flavored smoking products and temporarily bans the sale of electronic smoking devices in San Diego County. Specifically before the Court are Plaintiffs Neighborhood Market Association, Inc. and Vapin’ the 619's (collectively, "Plaintiffs") Motion for Preliminary Injunction ("Mot.," ECF. No. 4) and Defendant County of San Diego's ("Defendant" or "County") Motion to Dismiss Plaintiffs’ Complaint ("MTD," ECF No. 12). Also before the Court is the brief of Medical and Public Health Amici Curiae filed in Opposition to Plaintiffs’ Motion for Preliminary Injunction ("Amici Br.," ECF No. 17). The Court took these matters under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 29. Having carefully considered the Parties’ pleadings, evidence, arguments, and the applicable law, the Court DENIES Plaintiffs’ Motion for Preliminary Injunction and GRANTS Defendant's Motion to Dismiss, as follows.

BACKGROUND

On January 28, 2020, the San Diego County Board of Supervisors adopted Regulatory Code Ordinance Number 10647 (the "Ordinance"), which was enacted on February 27, 2020 and became effective on July 1, 2020. See generally San Diego County, Cal., Code of Regulatory Ordinances, tit. 3, div. 2, ch. 8.8, §§ 32.871–32.895 (2020). The Ordinance (1) permanently prohibits the sale or distribution of flavored smoking products within San Diego County and (2) temporarily prohibits the sale or distribution of electronic smoking devices within San Diego County for a period of one year. See generally id. Plaintiffs seek to enjoin the County from enforcing both provisions of the Ordinance. See generally Mot.

First, the Ordinance prohibits the sale of certain tobacco products. The Ordinance bans "the sale or distribution of all flavored smoking products ... in the unincorporated area of the County." San Diego County, Cal., Code of Regulatory Ordinances, tit. 3, div. 2, ch. 8.8, § 32.883(a) (2020). A "flavored smoking product" is defined as:

[A] product containing, made, or derived from tobacco or nicotine that is intended for smoking, and that emits a taste or smell, other than the taste or smell of tobacco, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, candy, dessert, alcoholic beverage, herb, or spice.

Id. § 32.882(b). The ban exempts shisha, which is "a flavored smoking product that is traditionally mixed with molasses, honey, fruit pulp, or dried fruits and is sold for use in a water pipe known as a hookah." Id. § 32.872(b). Additionally, the prohibition on the sale of flavored smoking products does not apply to "a product that has been approved by the Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes, where the product is marketed and sold solely for such an approved purpose." Id. § 32.883(c).

The Ordinance was enacted to combat the health risks associated with youth tobacco consumption. See generally id. § 32.881(a)–(g). The 2019 National Youth Tobacco Survey conducted by the Centers for Disease Control and Prevention ("CDC") and the Food and Drug Administration ("FDA") "showed that more than 5 million U.S. middle and high school students reported current e-cigarette use ... [and] 27.5 percent of high school students reported current e-cigarette use, a percentage that has increased dramatically since 2018." Id. § 32.881(c). The County found that "[f]lavors, such as fruit, menthol, mint, candy, or dessert, hide the harshness of nicotine, making initiation of nicotine use easier among youth." Id. § 32.881(d). The County also was concerned with underage purchasers having access to tobacco products. The 2018 Young Adult Tobacco Purchase Survey "showed that tobacco and vape shops made sales to underage decoys 49.8 percent of the time, twice the rate of any other category of retailer." Id. § 32.881(g).

Second, the Ordinance temporarily banned, for a period of one year, the "sale or distribution of an electronic smoking device ...." Id. § 32.893(a). An "Electronic Smoking Device" is defined as:

[A]n electronic and/or battery-operated device, which can be used to deliver an inhaled dose of nicotine or other substances whether manufactured, distributed, marketed, or sold as an electronic cigarette, an electronic cigar, an electronic cigarillo, an electronic pipe, or any other product name or descriptor.

Id. § 32.892(b). Like the flavored smoking products sales ban, the temporary prohibition on the sale of electronic smoking devices does not apply to "any product that the Food and Drug Administration has either granted premarket approval, or approved for use as a tobacco cessation product or for other therapeutic purposes where the product is marketed and sold solely for such an approved purpose." Id. The ban on the sale of electronic smoking devices expired on February 28, 2021. Id. § 32.893(a).

The San Diego County Board of Supervisors was motivated to adopt the temporary ban on electronic smoking devices because the "long-term health consequences of electronic smoking devices are unclear, but evidence is mounting that there are serious risks." Id. § 32.891(d). Among the suspected health risks is an illness called e-cigarette or vaping product use-associated lung injury ("EVALI"), which "has led to hospitalizations and deaths nationwide .... There have been 41 confirmed or probable EVALI cases in San Diego County as of December 18, 2019." Id. § 32.892(g). The County was particularly concerned with youth use of electronic smoking devices, which has increased since 2018. Id. § 32.892(f). Additionally, the FDA has not approved e-cigarettes as an aid to quit smoking, and "[s]tudies indicate no evidence of definitive long-term efficacy of e-cigarettes as a cessation aid ...." Id. § 32.891(c).

Plaintiff Neighborhood Market Association, Inc. ("NMA") is a nonprofit industry trade association whose members consist of tobacco retailers, wholesalers, and manufacturers located in the unincorporated areas of San Diego County. Complaint ("Compl.") ¶ 23, ECF No. 1. Plaintiff Vapin’ the 619 is a vapor tobacco products retailer in San Diego County and an NMA member. Id. ¶ 24. Plaintiffs contend that if the Ordinance is not enjoined, they will suffer "severe financial impact and the resulting, inevitable financial ruin of their businesses." Mot. at 16. Plaintiffs allege that as a result of the Ordinance and the added strain of COVID-19, Plaintiffs "will never be able to fully re-open their businesses or retain their employees." Id.

PROCEDURAL HISTORY

On June 19, 2020, Plaintiffs filed their Complaint seeking declaratory and injunctive relief against the County. See generally Compl. On June 29, 2020, Plaintiffs filed their Motion for a Preliminary Injunction. See generally Mot. The County filed its Response in Opposition to Plaintiffs’ Motion ("Opp'n," ECF. No. 11), and Plaintiffs filed a Reply in support of their Motion ("Reply," ECF No. 13). This action was originally assigned to the Honorable Marilyn L. Huff, but the action was transferred to this Court on August 3, 2020, when Judge Huff recused herself. See generally ECF No. 14. On August 3, 2020, the County filed its Motion to Dismiss for Failure to State a Claim. See generally MTD. Plaintiffs filed a Response in Opposition to the County's Motion (ECF No. 21), and the County filed a Reply in support of its Motion to Dismiss (ECF No. 23).

On July 9, 2020, R.J. Reynolds Tobacco Company, R.J. Reynolds Vapor Company, and Santa Fe Natural Tobacco Company, Inc. ("R.J. Reynolds Plaintiffs") filed a complaint seeking declaratory and injunctive relief against the County based on the same Ordinance. See R.J. Reynolds Tobacco Company v. County of San Diego , Case No. 3:20-cv-01290-JLS-WVG. R.J. Reynolds Plaintiffs filed a notice of related case and requested that the action be transferred to this Court. See generally 20cv1290, ECF No. 4. The case was transferred pursuant to the low-number rule on July 16, 2020 (see 20cv1290, ECF No. 5), and was reassigned to this Court on August 4, 2020 alongside the present action (see 20cv1290, ECF No. 18).

On August 28, 2020, California Governor Gavin Newsom approved California Senate Bill 793 ("S.B. 793"), which prohibits the sale of flavored tobacco products or tobacco product flavor enhancers in California. See generally S.B. 793, Act of Aug. 28, 2020, 2020 Cal. Legis. Serv. ch. 34 (to be codified at Cal. Health & Safety Code § 104559.5 ). The Court requested supplemental briefing on the impact of S.B. 793 on Plaintiffs’ present claims related to the Ordinance. See ECF No. 22. Plaintiffs filed a supplemental brief on October 15, 2020, and the County filed a response on October 22, 2020. ECF Nos. 24, 25. A referendum challenging S.B. 793 has suspended the operation of the statewide flavored tobacco products sales ban unless and until it is approved by a majority of voters in the November 8, 2022 election. See Cal. Sec. of State, Nov. 8, 2022 Qualified Statewide Ballot Measures, at https://www.sos.ca.gov/elections/ballot-measures/qualified-ballot-measures (last visited Mar. 19, 2021). Because S.B. 793 is not currently in effect, the Court will not examine the effect of the state statute on the present action.

MOTION FOR PRELIMINARY INJUNCTION¹

Plaintiffs request that...