R.J. Reynolds Tobacco Co. v. Cnty. of L. A.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
• Citation: 471 F.Supp.3d 1010
• Docket Number: CV 20-4880 DSF (KSx)
• Parties: R.J. REYNOLDS TOBACCO COMPANY, et al., Plaintiffs, v. COUNTY OF LOS ANGELES, et al., Defendants.
• Decision Date: 13 July 2020

471 F.Supp.3d 1010

R.J. REYNOLDS TOBACCO COMPANY, et al., Plaintiffs,

v.COUNTY OF LOS ANGELES, et al., Defendants.

CV 20-4880 DSF (KSx)

United States District Court, C.D. California.

Signed July 13, 2020

Jason Corbitt Wright, Jones Day, Los Angeles, CA, Andrew J. Bentz, Pro Hac Vice, Christian G. Vergonis, Pro Hac Vice, Ryan J. Watson, Pro Hac Vice, Jones Day, Washington, DC, for Plaintiffs.

Bryan M. Wittlin, Kent R. Raygor, Valerie Elizabeth Alter, Sheppard Mullin Richter and Hampton LLP, Los Angeles, CA, for Defendants.

Order DENYING Plaintiffs’ Motion for Preliminary Injunction (Dkt. 17)

Dale S. Fischer, United States District Judge

Plaintiffs R.J. Reynolds Tobacco Company, American Snuff Company, LLC, and Santa Fe Natural Tobacco Company, Inc. move for an order enjoining Defendant County of Los Angeles from enforcing a County ordinance that prohibits the sale of flavored tobacco products. Dkt. 17-1 (Mot.). The County opposes. Dkt. 28 (Opp'n). The Court deems this matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78 ; Local Rule 7-15. For the reasons stated below, the motion is DENIED.

I. BACKGROUND

Los Angeles County Code Section 11.35 (the Ordinance) regulates the sale of tobacco. Amendments to the Ordinance were passed at the September 24, 2019 County Board of Supervisors meeting, enacted on November 1, 2019, and became effective on May 1, 2020. Relevant here, the Ordinance prohibits tobacco retailers from "sell[ing] or offer[ing] for sale, or ... possess[ing] with the intent to sell or offer for sale, any flavored tobacco product or any component, part, or accessory intended to impart, or imparting a characterizing flavor in any form, to any tobacco product or nicotine delivery device, including electronic smoking devices." Id. § 11.35.070(E). A "Flavored Tobacco Product" is defined as "any tobacco product ... which imparts a characterizing flavor." Id. § 11.35.020(J). A "tobacco product" is "[a]ny product containing, made, or derived from tobacco or nicotine," including cigarettes, and "[a]ny electronic smoking device that delivers nicotine or other substances," including e-cigarettes and vaping devices. Id. § 11.35.020(U)(1)-(2). A "characterizing flavor" is defined as:

a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice. Characterizing flavor includes flavor in any form, mixed with or otherwise added to any tobacco product or nicotine delivery device, including electronic smoking devices.

Id. § 11.35.020(C).

II. LEGAL STANDARD

"A preliminary injunction is an extraordinary remedy never awarded as a matter of right." Winter v. Natural Res. Def. Council, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Id. at 20, 129 S.Ct. 365. Although a plaintiff seeking a preliminary injunction must make a showing on each factor, the Ninth Circuit employs a "version of the sliding scale" approach where "a stronger showing of one element may offset a weaker showing of another." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011). Under this approach, a court may issue a preliminary injunction where there are "serious questions going to the merits and a balance of hardships that tips sharply towards the plaintiff ..., so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Id. at 1135 (internal quotation marks omitted). "When the government is a party, the last two factors (equities and public interest) merge." E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1271 (9th Cir. 2020).

III. DISCUSSION

Plaintiffs contend that they are likely to succeed on the merits of their claims that the Ordinance is unconstitutional under the Supremacy Clause. The Court disagrees. Because Plaintiffs have not established that they are likely to succeed on the merits or even that there are serious questions going to the merits, the Court need not consider the other Winter factors. See Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc) ("[W]hen a plaintiff has failed to show the likelihood of success on the merits, we need not consider the remaining three [ Winter elements]" (alteration in original) (internal quotation marks omitted) (quoting Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 944 (9th Cir. 2013) )).

A. Express Preemption

Plaintiffs contend that the Family Smoking Prevention and Tobacco Control Act (the FSPTCA), 21 U.S.C. §§ 387 - 387u, expressly preempts the Ordinance because the Ordinance impermissibly "establishes a state requirement that is ‘different from’ and ‘in addition to’ federal requirements related to tobacco product standards." Mot. at 11. Preemption under the FSPTCA is governed by a Preemption Clause, a Preservation Clause, and a Savings Clause:

• Preemption Clause. "[W]ith respect to a tobacco product," the FSPTCA preempts, "any requirement which is different from, or in addition to, any requirement under the provisions of this subchapter relating to tobacco product standards, premarket review, adulteration, misbranding, labeling, registration, good manufacturing standards, or modified risk tobacco products." 21 U.S.C. § 387p(a)(2)(A).

• Preservation Clause. "Except as provided in [the Preemption Clause]," the FSPTCA does not limit the County's authority to enact requirements "relating to or prohibiting the sale, distribution, possession, exposure to, access to, advertising and promotion of, or use of tobacco products by individuals of any age, information reporting to the State, or measures relating to fire safety standards for tobacco products." 21 U.S.C. § 387p(a)(1).

• Savings Clause. 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." 21 U.S.C. § 387p(a)(2)(B).

Under the Preemption Clause, the first question the Court must answer is whether the Ordinance relates to "tobacco product standards." The FSPTCA has a section on "Tobacco Product Standards." 21 U.S.C. § 387g. That section sets out two "[s]pecial rules," id. § 387g(a)(1), and then gives the FDA authority to revise those rules, id. § 387g(a)(2), and adopt additional tobacco standards, id. § 387g(a)(3). The first of those special rules is the "Special rule for cigarettes" which prohibits cigarettes from "contain[ing], as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) ...." 21 U.S.C. § 387g(a)(1)(A) (the Special Rule). Plaintiffs contend that "[i]f a ban on all flavored cigarettes except menthol is a tobacco product standard – indeed, the paradigmatic example of a tobacco product standard – then a state law or local ordinance that bans all flavored tobacco products including menthol is a tobacco product standard as well." Mot. at 12; see also id. at 13 ("at a bare minimum, the County's ban on ‘menthol cigarettes’ is ‘different from’ and ‘in addition to’ the Tobacco Control Act's express allowance (subject to FDA's authority) of menthol cigarettes"). Additionally, future tobacco product standards "shall, where appropriate for the protection of the public health, include ... provisions respecting the construction, components, ingredients, additives, constituents, including smoke constituents, and properties of the tobacco product." 21 U.S.C. § 387g(a)(4)(B)(i). Plaintiffs note that both "additives" and "properties" of tobacco products include flavoring. Mot. at 11 (" ‘additives’ include ‘substances intended for use as a flavoring.’ ") (quoting 21 U.S.C. § 387(1) ); Dkt. 31 (Reply) at 8-9 ("A ‘property’ of a product is an ‘attribute, characteristic, or quality’ of the product" and "the ‘taste or aroma’ of a product is an ‘attribute, characteristic, or quality’ of the product.") (first quoting Oxford English Dictionary, "Property" (2020), available at https://www.oed.com; then quoting Webster's Third New International Dictionary 1818 (1981)).¹ Plaintiffs contend that putting all of these provisions together, "a ‘tobacco product standard’ includes any provision respecting the substances intended for use as a tobacco-product flavoring." Mot. at 11-12. The Court disagrees with Plaintiffs’ analysis.

The courts to have addressed the preemption of local flavored tobacco bans have held that the local ordinances were not preempted. See Nat'l Ass'n of Tobacco Outlets, Inc. v. City of Providence, R.I., 731 F.3d 71, 85 (1st Cir. 2013) ; U.S. Smokeless Tobacco Mfg. Co. LLC v. City of New York, 708 F.3d 428, 436 (2d Cir. 2013) ; Indeps. Gas & Serv. Stations Associations, Inc. v. City of Chicago, 112 F. Supp. 3d 749, 754 (N.D. Ill. 2015). The Ordinance at issue here is more restrictive than the ordinances previously held not to be preempted. Nevertheless, the Court finds those cases to be instructive.

In U.S. Smokeless Tobacco, the Second Circuit concluded that a ban on flavored tobacco products was not a tobacco product standard because the ordinance addressed only "whether final tobacco products are ultimately characterized by – or marketed as having – a flavor" and "is not easily read to direct manufacturers as to which ingredients they may or may not include in their products." 708 F.3d...