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

• Decision Date: 18 March 2022
• Docket Number: No. 20-55930,20-55930
• Citation: 29 F.4th 542
• Parties: R.J. REYNOLDS TOBACCO COMPANY; American Snuff Company; Santa Fe Natural Tobacco Company, Inc., Plaintiffs-Appellants, v. COUNTY OF LOS ANGELES; County of Los Angeles Board of Supervisors ; Hilda L. Solis ; Mark Ridley-thomas; Sheila Kuehl; Janice Hahn ; Kathryn Barger, each in his or her official capacity as a member of the Board of Supervisors, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

29 F.4th 542

R.J. REYNOLDS TOBACCO COMPANY; American Snuff Company; Santa Fe Natural Tobacco Company, Inc., Plaintiffs-Appellants,

v.COUNTY OF LOS ANGELES; County of Los Angeles Board of Supervisors ; Hilda L. Solis ; Mark Ridley-thomas; Sheila Kuehl; Janice Hahn ; Kathryn Barger, each in his or her official capacity as a member of the Board of Supervisors, Defendants-Appellees.

No. 20-55930

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 19, 2021 Pasadena, California

Filed March 18, 2022

Noel J. Francisco (argued), Christian G. Vergonis, Ryan J. Watson, and Andrew J. M. Bentz, Jones Day, Washington, D.C.; Jason C. Wright, Jones Day, Los Angeles, California; for Plaintiffs-Appellants.

Kent R. Raygor (argued) and Valerie E. Alter, Sheppard Mullin Richter & Hampton LLP, Los Angeles, California, for Defendants-Appellees.

Cory L. Andrews and John M. Masslon II, Washington Legal Foundation, Washington, D.C., for Amicus Curiae Washington Legal Foundation.

Rob Bonta, Attorney General; Renu R. George, Senior Assistant Attorney General, Nicholas M. Wellington and James V. Hart, Supervising Deputy Attorneys General; Peter F. Nascenzi, Deputy Attorney General; Office of the Attorney General, Sacramento, California; for Amicus Curiae State of California.

Jordan Raphael, Byron Raphael LLP, Los Angeles, California; Dennis A. Henigan, Campaign for Tobacco-Free Kids, Washington, D.C.; for Amici Curiae Public Health and Medical Organizations.

Rachel Bloomekatz, Columbus, Ohio, for Amici Curiae Public Health Law Center, Action on Smoking and Health, California State Association of Counties, ChangeLab Solutions, International City/County Management Association, International Municipal Lawyers Association, Legal Resource Center for Public Health Policy, National Association of Counties, National League of Cities, Public Health Advocacy Institute, and U.S. Conference of Mayors.

Before: Ryan D. Nelson and Lawrence VanDyke, Circuit Judges, and Karen E. Schreier,^* District Judge.

Dissent by Judge Nelson

VANDYKE, Circuit Judge:

I. INTRODUCTION

Until just over a decade ago, tobacco products were regulated almost exclusively by the states and local governments, with little federal involvement. Then beginning in the late 1990's, the U.S. Food and Drug Administration first sought to exert federal regulatory authority over such products. This initial attempt was swiftly rebuffed by the Supreme Court, which concluded the FDA lacked that authority under then-existing statutes. See FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 126, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). In response, Congress passed the Family Smoking Prevention and Tobacco Control Act ("TCA"), Pub. L. No. 111–31, 123 Stat. 1776 (2009), codified at 21 U.S.C. § 387 et seq. , which authorized the FDA to regulate tobacco products and expressly preempted some contrary state or local regulations, while also expressly preserving and saving from preemption other state and local regulatory authority over tobacco.

The boundary between the TCA's preemption clause and its preservation and savings clauses is the subject of the dispute in this case. The County of Los Angeles claims that the TCA's preservation and savings clauses permit its decision to ban the sale of all flavored tobacco products. Predictably, multiple tobacco companies have challenged the County's ban, arguing that the TCA's preemption clause both expressly and impliedly preempts the ban.

The TCA's unique tripartite preemption structure governs our analysis of these issues. Its text, framework, and historical context reveal that it carefully balances federal and local power by carving out the federal government's sole authority to establish the standards for tobacco products, while preserving state, local, and tribal authority to regulate or ban altogether sales of some or all tobacco products. Properly understood, the TCA's preemption clause does not preclude non-federal sales regulations such as the County's sales ban challenged in this case. But even if it did, the County's sales ban would nonetheless be exempted from preemption by the TCA's savings clause because it easily falls within that clause's text as an allowed local "requirement[ ] relating to the sale ... of[ ] tobacco products." 21 U.S.C. § 387p(a)(2)(B). Either way, the TCA does not expressly preempt the County's sales ban. And given that the TCA explicitly preserves local authority to enact "more stringent" regulations than the TCA, the County's sales ban does not pose an impermissible obstacle to the TCA's purposes or objectives regarding flavored tobacco. It is therefore neither expressly nor impliedly preempted, and we affirm the district court.

II. BACKGROUND

1. States and Localities Historically Possessed Broad Power to Regulate and Ban Tobacco Products.

The TCA's tripartite preemption provision can be properly understood only against the historical backdrop of states and localities' longstanding role as the primary regulators of tobacco products. See Stewart v. Dutra Const. Co. , 543 U.S. 481, 487, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005) (interpreting a federal statute by looking to the "backdrop against which Congress" acted). Over a century ago, the Supreme Court first recognized that states, because of public health concerns, could prohibit the sale of cigarettes. See Austin v. State of Tennessee , 179 U.S. 343, 348–49, 21 S.Ct. 132, 45 L.Ed. 224 (1900) ("[W]e think it within the province of the legislature to say how far [cigarettes] may be sold, or to prohibit their sale entirely ... provided no discrimination be used ... and there be no reason to doubt that the act in question is designed for the protection of the public health."). In the intervening century, and in response to growing awareness of the harmful effects of cigarettes, Congress enacted various statutory provisions focusing on consumer education through advertising and labeling requirements. See, e.g. , Federal Cigarette Labeling and Advertising Act ("FCLAA"), Pub. L. No. 89–92, 79 Stat. 282 (1965) (codified as amended at 15 U.S.C. §§ 1331 – 1341 ), see also Graham v. R.J. Reynolds Tobacco Co. , 857 F.3d 1169, 1186–87 (11th Cir. 2017) (en banc) (surveying the development of federal tobacco laws).¹ But these federal statutes never preempted state and localities' traditional power to restrict or ban sales of tobacco products. See id.

During this period, states also played key roles in indirectly regulating tobacco products through litigation. In the 1990s, after numerous heads of major tobacco companies denied under oath the addictiveness of nicotine, several states sued their companies. See Regulation of Tobacco Products (Part 1): Hearings Before the Subcomm. on Health & the Env't , 103d Cong. 628 (1994); Barry Meier, Remaining States Approve the Pact on Tobacco Suits , N.Y. TIMES, Nov. 21, 1998, at A1. The lawsuits resulted in a "landmark agreement" between the tobacco companies and the states, where the companies agreed to monetary payments and permanent injunctive relief. See Lorillard Tobacco v. Reilly , 533 U.S. 525, 533, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001).

Meanwhile, states continued to enact laws regulating the sale and use of cigarettes and tobacco products, including imposing numerous restrictions on tobacco sales.² These restrictions included, for example, prohibitions on sales of tobacco products in vending machines and near schools. See Paul A. Diller, Why Do Cities Innovate in Public Health? Implications of Scale and Structure , 91 Wash. U. L. Rev 1219, 1231–35 (2014) (discussing state and local bans of flavored cigarettes passed before the TCA). Some localities even banned sales of cigarettes and vape products entirely from retail stores. See, e.g. , Manhattan Beach, Cal., Ordinance 20-0007. Because the FDA lacked authority to regulate tobacco products until Congress enacted the TCA in 2009,³ the history of tobacco regulation is, until recently, one of state and local action.

2. The TCA Continued to Preserve State and Local Power Over Tobacco Sales.

Given this extensive background of state and local tobacco regulation, it would have been surprising if Congress had broadly jettisoned the longstanding tradition of states and localities' role in the regulation of sales of tobacco products when it enacted the TCA in 2009. The text of the TCA itself demonstrates that it did not. Instead, Congress made an "explicit decision to preserve for the states a robust role in regulating, and even banning, sales of tobacco products." U.S. Smokeless Tobacco Mfg. Co. v. City of New York , 708 F.3d 428, 436 (2d Cir. 2013).

Specifically, the TCA sought to "authorize the [FDA] to set national standards controlling the manufacture of tobacco products and the identity, public disclosure, and amount of ingredients used in such products." Pub. L. No. 111-31, 123 Stat. 1778 (2009) (emphasis added). In doing so, the TCA balances state and federal power over tobacco regulation by way of a unique three-layered preservation provision.⁴ The first clause of the provision, labeled the preservation clause, broadly preserves state, local, and tribal power to enact any regulation concerning tobacco products that is "in addition to or more stringent" than those promulgated by the TCA:

Except as provided in [the preemption clause], nothing in this subchapter, or rules promulgated under this subchapter, shall be construed to limit the authority of a ... political subdivision of a State ... to enact, adopt, promulgate, and enforce any law, rule, regulation, or other measure with respect to tobacco products that is in addition to, or more stringent than, requirements established under this subchapter, including a law, rule, regulation, or other measure 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

...