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SAN DIEGO (Legal Newsline) – The tobacco industry’s lawsuit that challenged a proposed flavor ban in California has failed because voters won’t decide the bans fate for another 16 months.
R.J. Reynolds and other companies sued the State in San Diego federal court last year, but on Aug. 6, Judge Cathy Ann Bencivengo tossed the case because Senate Bill 793 has not gone into effect yet.
Though it had an effective date of Jan. 21, 2021, the legislation is now the subject of a ballot referendum for voters on Nov. 8, 2022. And even though the tobacco industry conceded that the referendum made its motion for preliminary injunction moot, it still encouraged Bencivengo to retain jurisdiction over the case.
Citing a 1979 decision known as Babbitt, the industry said there is still a “realistic danger that SB793 will go into effect,” but Bencivengo found the case did not apply here.
“Babbitt addressed whether a plaintiff who has not been subject to injury from a statute’s operation or enforcement may challenge the statute,” she wrote.
“The statute in question in Babbitt, however, was already in effect, and was in fact being enforced. The issue being considered by the Court there was whether the plaintiffs had a ripe claim even if they had not personally been subject to a criminal enforcement action…
“Plaintiffs face no such risk of prosecution here. Unlike Babbitt, there currently is no ‘realistic danger’ that Plaintiffs will be prosecuted for violation of SB 793, and there will not be any such realistic danger until after Nov. 8, 2022, if at all.”
The law bans menthol cigarettes and other flavored products like smokeless tobacco.
Other plaintiffs are American Snuff Company, Santa Fe Natural Tobacco, Philip Morris, John Middleton Co., Smokeless Tobacco Company, Helix Innovations, Neighborhood Market Association and Vapin’ the 619.
“But not only is California’s law misguided, the sweeping ban is also preempted by federal law and therefore unconstitutional under the U.S. Constitution’s Supremacy Clause,” the suit says.
“In addition, California’s law violates the dormant Commerce Clause and is thus unconstitutional.”