SAN DIEGO (Legal Newsline) – Retailers have lost their bid to stop San Diego County’s ban on flavored tobacco products.
Federal judge Janis Sammartino on March 29 denied their motion for a preliminary injunction while granting San Diego County’s motion to dismiss, leaving the plaintiffs only with the option of filing an amended complaint within 30 days.
Sammartino decided two issues: Whether the ordinance banning flavored products permanently is unconstitutional (she says it isn’t) and whether the temporary ban, which was not renewed, was likely to recur (she says it isn’t).
The county says the ordinance is a sales ban and not a tobacco product standard preempted by federal laws.
“This is a sales ban directed at what end products are available to consumers, not a directive to manufacturers about what materials are permitted to make tobacco products,” Sammartino wrote.
“The latter would be a tobacco product standard falling within the Preemption Clause, but the formerly is explicitly contemplated by the (Family Smoking Prevention and Tobacco Control Act) and permitted.
“Therefore, the ordinance’s sales ban does not regulate additives and cannot be considered a tobacco product standard.”
The FSPTCA is not to be construed to limit states or local governments the power to enact any law prohibiting the sale of tobacco products.”
The lawsuit filed June 19 by the Neighborhood Market Association and a vape shop questions an anti-vaping ordinance similar to one enacted in Los Angeles that is also subject to a court challenge.
“The CDC affirmatively disclosed that source of the recent lung-related injuries are directly related to products containing THC sold in the black market and not nicotine-based products,” the lawsuit says.
“Yet, San Diego continues to seek the prohibition of all electronic smoking devices and flavored tobacco products.”
Sammartino, though, found the county was within its rights, despite a carve-out that allows flavored ingredients for hookahs.