R.J. Reynolds Tobacco Co. v. Cnty. of San Diego
| Decision Date | 29 March 2021 |
| Docket Number | Case No.: 20-CV-1290 JLS (WVG) |
| Citation | 529 F.Supp.3d 1147 |
| Parties | R.J. REYNOLDS TOBACCO COMPANY; R.J. Reynolds Vapor Company ; Santa Fe Natural Tobacco Company, Inc.; American Snuff Company, LLC; and Modoral Brands Inc., Plaintiffs, v. COUNTY OF SAN DIEGO ; and Helen N. Robbins-Meyer, in her official capacity as the County of San Diego's Chief Administrative Officer, Defendants. |
| Court | U.S. District Court — Southern District of California |
Andrew Bentz, Pro Hac Vice, Christian Vergonis, Pro Hac Vice, Noel John Francisco, Pro Hac Vice, Ryan Jeffrey Watson, Pro Hac Vice, Jones Day, Washington, DC, Steve N. Geise, Jones Day, San Diego, CA, for Plaintiffs R.J. Reynolds Tobacco Company, R.J. Reynolds Vapor Company, Santa Fe Natural Tobacco Company, Inc.
Steve N. Geise, Jones Day, San Diego, CA, for Plaintiffs American Snuff Company, LLC, Modoral Brands Inc.
Joshua Michael Heinlein, Office of County Counsel, San Diego, CA, for Defendants.
ORDER (1) DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND (2) GRANTING DEFENDANTS’ MOTION TO DISMISS
Janis L. Sammartino, United States District Judge This Order addresses the constitutionality of two county ordinances that permanently ban the sale of various flavored tobacco products in San Diego County. Specifically before the Court are Plaintiffs R.J. Reynolds Tobacco Company; R.J. Reynolds Vapor Company; Santa Fe Natural Tobacco Company, Inc.; American Snuff Co., LLC; and Modoral Brands Inc.’s (collectively, "Plaintiffs") Motion for Preliminary Injunction ("Mot.," ECF No. 6-1) and Defendants County of San Diego and Helen N. Robbins-Meyer's (collectively, "Defendants") Motion to Dismiss Plaintiffs’ Complaint ("MTD," ECF No. 26). 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. 21). The Court took these matters under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 36. Having carefully considered the Parties’ pleadings, evidence, arguments, and the applicable law, the Court DENIES Plaintiffs’ Motion for Preliminary Injunction and GRANTS Defendants’ Motion to Dismiss, as follows.
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 the sales ban on flavored smoking products. 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 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).
On December 8, 2020, the San Diego County Board of Supervisors adopted Ordinance No. 10699, (the "New Ordinance," the Ordinance and the New Ordinance collectively the "ordinances"), which repealed and added provisions in the San Diego County Code regarding the sale of tobacco products in the unincorporated area of San Diego County. See generally San Diego County, Cal., Code of Regulatory Ordinances, tit. 2, div. 1, ch. 26, §§ 21.2601–21.2610 (2021). As of July 1, 2021, the New Ordinance will repeal the Ordinance's current ban on flavored smoking products and replace it with a ban on the sale of flavored tobacco products. Compare San Diego County, Cal., Code of Regulatory Ordinances, tit. 3, div. 2, ch. 8.8, § 32.883 (2020) with San Diego County, Cal., Code of Regulatory Ordinances, tit. 2, div. 1, ch. 26, § 21.2604 (2021). The New Ordinance does not reinstate a ban on the sale of electronic smoking devices. See generally San Diego County, Cal., Code of Regulatory Ordinances, tit. 2, div. 1, ch. 26 (2021). Specifically, the New Ordinance provides, "A tobacco retailer, or any of the tobacco retailer's agents or employees, shall not sell, offer for sale, or possess with the intent to sell or offer for sale, a flavored tobacco product or a tobacco product flavor enhancer." Id. § 21.2604(a). A "flavored tobacco product" is defined as:
[A]ny tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to or during the consumption of the product, including, but not limited to, any taste or smell relating to chocolate, cocoa, menthol, mint, wintergreen, vanilla, honey, fruit or any candy, dessert, alcoholic beverage, herb or spice.
Id. § 21.2602(i). The New Ordinance has exemptions for shisha products, loose leaf pipe tobacco, and premium cigars. Id. § 21.2604(c)–(d). The practical effect of the change from flavored smoking products to flavored tobacco products is that the New Ordinance prohibits the sale of more types of products, not just those related to smoking.
Plaintiffs are corporations that develop, manufacture, market, and distribute flavored smoking products, flavored tobacco products, flavored electronic smoking devices, and menthol cigarettes. Complaint ("Compl.") ¶¶ 9–11, ECF No. 1; Supplemental Complaint ( ) ¶ 3, ECF No. 39. Plaintiffs contend they will suffer "substantial financial losses" due to the ordinances. Mot. at 21 (citing Declaration of Lamar W. Huckabee ("Huckabee Decl.") ¶ 8, ECF No. 6-4; Declaration of Christy L. Canary-Garner ("Canary-Garner Decl.") ¶ 6, ECF No. 6-3).
On July 9, 2020, Plaintiffs filed their Complaint seeking declaratory and injunctive relief against Defendants. See generally Compl. On July 16, 2020, Plaintiffs filed their Motion for a Preliminary Injunction or Summary...
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